Graveley Ranch v. .Scherping

No. 90-323

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

GRAVELEY RANCH,
Plaintiff and Appellant,

THOMAS SCHERPING and ANITA
SCHERPING,
Defendants and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Charles A. Graveley, Helena, Montana
For Respondent:
G. Curtis Drake, Helena, Montana

Submitted on briefs: January 3, 1991
FE8 19 1 9
91 Decided: February 19, 1991
Filed:
Cd SmitL
CLERK OF SUPREPJE C O U m
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STATE 0 6 MOHTAMA

Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Graveley Ranch appeals from an order of the First Judicial
District, Lewis and Clark County, granting summary judgment in
favor of Thomas and Anita Scherping.
We affirm.
The sole issue raised on appeal is whether the District Court
properly granted summary judgment to the defendants.
Graveley Ranch held a permit to graze on the land adjacent to
and surrounding what was the Scherpingsl property. On September
30, 1984, the residence on Scherpings' property burned to the

ground, leaving residue which included lead storage batteries.
Several Graveley Ranch cattle subsequently became ill and died.
On September 25, 1985, Graveley Ranchls attorney wrote a letter to
the Scherpings stating that six cattle had already died from the
lead in the battery residue. At least by October 1, 1985, a fence
was constructed around the site with materials provided by Graveley
Ranch. On November 4, 1985, Graveley Ranch received a letter from
the Solid and Hazardous Waste Bureau of the State Department of
Health and Environmental Sciences, confirming the source of the
poisoning. On October 29, 1987, Graveley Ranch filed a complaint
against Thomas and Anita Scherping.
This is the second time this matter has come before us on
appeal. After pleadings were complete below, the District Court
granted summary judgment to the defendants. The court found that
since the injury was known on September 25, 1985, and the complaint
was not filed until October 29, 1987, the two year statute of
limitations had run. This Court on appeal stated that indeed the
statute had begun to run upon discovery on September 25, 1985, but
that the continuing nature of the injury tolled the statute until
the source of the injury abated. Graveley Ranch v. Scherping
(Gravelev Ranch I), 240 Mont. 20, 25, 782 P.2d 371, 375 (1989). We
remanded the case to the District Court for further proceedings.
Once there, the defendants again moved for summary judgment
claiming that the fence around the site had abated the nuisance.
The District Court agreed, and again granted summary judgment.
Did the District Court properly grant summary judgment to the
defendants?
The first time this issue was brought before us, we stated:
... However, the presence of the lead batteries does
constitute a nuisance which could have been abated at any
time by the defendants. Thus, the nuisance is continuinq
until it is abated; the statute does not begin to run
until the batteries are removed and the toxic residue
cleaned from the site of the fire. If defendants have
made no effort to remove the hazardous materials from the
fire site, a new cause of action may arise each time a
cow becomes ill or dies as a result of lead poisoning.

Gravelev Ranch I. Plaintiff here contends that since the batteries
were not removed or the residue cleaned up, the nuisance continued,
thus precluding the running of the statute.
On the first appeal, we were not made aware that the nuisance
had in fact abated with the construction of the fence on or about
October 1, 1985. Although our previous opinion stated that the
batteries should be removed, the construction of the fence sufficed
to keep the cows out of the toxic material, thus accomplishing the
same result as removal of the batteries. Once the cows were cut
off from the source of the poison, the nuisance abated as far as
the plaintiff's cows were concerned and the statute could run.
Contrary to plaintiff's argument, it made no difference who
was responsible for putting up the fence. Our earlier Opinion
assumed that the defendants would be the ones to remove the
nuisance, but the fact that the plaintiffs beat them to it is not
material to the abatement issue. The nuisance had to be removed
so that a time could be fixed beyond which the defendants would not
be responsible for poisoning the cows. This was done with the
construction of the fence. The statute then began to run either
on September 25, 1985, with the discovery of the injury, or on
October 1, 1985, with the abatement of the nuisance. In either
case, the October 29, 1987, filing exceeded the statutory limit.
P
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Af finned.
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We Concur: