No. 92-388
I N THE SUPREME COURT O F THE STATE OF MONTANA
1993
D. MICHAEL CURRAN,
Plaintiff and Appellant,
DEPARTMENT O F HIGHWAYS
O F THE STATE OF MONTANA,
Defendant, Respondent
and Cross-Appellant.
APPEAL FROM: District Court of the First ~udicialDistrict,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
William G. Sternhagen; Sternhagen Law ~ i r m ,
Helena,
Montana
For Respondent:
Stephen F. Garrison, Nick A. Rotering & James R.
B e c k , Legal Services, Department of Transportation,
Helena, Montana
Justice John Conway Harrison delivered the Opinion of the Court.
Appellant D. Michael Curran (Curran) appeals an order of the
First ~udicial~istrictCourt, Lewis and Clark County, denying his
request for an injunction and dismissing his complaint against the
Montana Department of Highways (Department). The Department cross-
appeals, We affirm.
Montana Highway 200 crosses Flat Creek on Curran's property in
Lewis and Clark County northeast of Bowmans Corner. In 1985 the
Department reconstructed the highway across Currants property,
removing a large wooden bridge over Flat Creek and replacing it
with twin culverts. Construction of the new stream crossing
required a United States A m y Corps of Engineers permit, which in
turn r e q u i r e d the concurrence of t h e United States Environmental
Protection Agency, the United States Fish and Wildlife Service, and
the Montana Department of Fish, Wildlife and Parks. To obtain the
approval of these agencies, the Department revised its original
plans and built the twin-culvert structure to conform to their
standards.
In February 1986, during a flood caused by melting snow, the
new culverts were blocked by ice and debris. The creek overflowed,
covering approximately seventeen acres of Curran's grazing land.
The overflow caused erosion and left debris and gravel on the land
after the flood subsided. Curran had to move cattle and feed from
the affected area and thus was unable to use the land for its
ordinary purposes.
In his complaint, filed in April 1987, Curran alleged that the
2
Department had a duty to use ordinary care and skill in replacing
the existing bridge and that it breached its duty by ignoring
stream flow and engineering standards when it installed twin
culverts that were too small to handle the flood waters. Causing
the resulting flood, Curran charged, was a trespass by the
Department. Further, Curran alleged, the new installation created
a situation that was likely to recur unpredictably in the future,
creating a continuing nuisance and future damages that could not be
redressed by a legal remedy.
Currantsoriginal complaint prayed for past and future damages
and for a mandatory injunction requiring the Department to replace
the stream crossing with a crossing of adequate size and design
that would prevent future flooding of his property, prevent future
trespasses, and abate the nuisance.
In November 1990, however, Curran amended his complaint,
deleting the request for damages and leaving only the request for
a mandatory injunction. The Department moved in July 1991 to deny
the injunction, and in June 1992 the District Court granted the
Department's motion and dismissed Curran's complaint with
prejudice. Curran appealed.
We have restated the issues on appeal as follows:
1. Whether a mandatory injunction is an appropriate remedy in
this case.
2. Whether the twin-culvert stream crossing created a
nuisance under S 27-30-101, MCA.
As our holding on the first issue is dispositive, we do not address
the second issue.
A district court may issue an injunction when it appears that
the commission or continuance of an act will produce "irreparable
injuryM to the party seeking such relief. The granting of an
injunction is discretionary, and we will sustain it unless an abuse
of discretion is shown. Madison Fork Ranch v. L & B Lodge Pole
Timber Products (l98O), 189 Mont. 292, 302, 615 P.2d 900, 906. The
same standard of review applies to a District Court's denial of an
injunction. Smith v. Ravalli County Board of Health (1984), 209
Mont. 292, 679 P.2d 1249. Here, we conclude that the District
Court did not abuse its discretion in denying Curran's request for
an injunction.
The Department argues that an injunction is not an appropriate
remedy when "a plain, adequate, and speedy remedy at law" is
available, and that such a remedy is available in the form of
inverse condemnation. The Department relies chiefly on our
decision in Riddock v. City of Helena (1984), 212 Mont. 390, 687
P.2d 1386. In Riddock we held that:
The landowner's only remedy for the City's construction
of a pipeline on his land without obtaining an easement
is an inverse condemnation action for just compensation
for the value of the easement on the date of the taking.
687 P.2d at 1388. Riddock had asked for compensation for an
alleged taking of land without compensation, or in the alternative
for an injunction requiring the city to remove its pipeline. The
court granted summary judgment for the city on the grounds that
Riddock, as the successor in interest to the person who had owned
the land when the city built the pipeline, had no right to
compensation. The former landowner had a right to compensation
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through inverse condemnation, though he did not pursue it;
therefore, an injunction was not an available remedy for Ç id dock.
Our rule in Riddock is based on the theory that to allow a
landowner injunctive relief would permit t h a t landowner to defeat
a public entity's power of eminent domain. 687 P.2d at 1388. We
believe that as a matter of public policy the better alternative is
t o ensure compensation for a damaged landowner, like Curran, by
requiring the state t o purchase any property it takes for a public
purpose. See Hurley v . Rincaid (19311, 285 U.S. 95, 104, 52 S-Ct.
267, 269, 76 L.Ed. 637, 643 (where a federally-sponsored flood
control project threatened to flood the plaintiff's land, failure
to compensate him for taking his property ''affords no basis for an
injunction if such compensation may be procured in an action at
law*') .
Curran points out that in Riddock the plaintiff did not allege
nuisance or trespass and argues that the case should be
distinguished. Further, Curran argues, he is not asking for
damages in any form, but for an abatement of the nuisance caused by
the Department's stream crossing. He cites a 1909 opinion in which
we left open the possibility that an injunction ordering a power
company to remove its dam might be warranted. Wilhite v, Billings
& Eastern Montana Power Co. (1909), 39 Mont. 1, 101 P, 168.
In Wilhite the defendant's dam flooded the plaintiff's land,
and the plaintiff requested an order compelling the defendant to
lower, remove, or alter its dam in such a way as to avoid further
damage to his property. The trial court ordered the power company
to rebuild and repair its dam, but we remanded the case for a
modified order that merely required the power company to abate the
nuisance, commenting that the trial court's injunction was
''entirely too broad and drastic," and that "there is no evidence
that it is necessary to rebuild, repair, or remove the d r .
an" We
concluded:
This Court will, in proper cases, order the entry of
interlocutory restraining orders, either mandatory or
prohibitory, as the case may require; but we find in this
record no warrant for making such an order in this case.
Here, too, w e find no warrant far an order compelling the
Department to reconstruct its stream crossing. If Curran can show,
however, that the Department's stream crossing caused Flat Creek to
inundate his land, then he may be entitled to compensation for a
physical taking of his property. We held in Knight v. City of
Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276, that "a
property owner may recover in an inverse condemnation action where
actual physical damage is proximately caused to his property by a
public improvement."
If Currants loss can be compensated, of course, it is not an
irreparable injury. He voluntarily waived damages by amending his
complaint so as to limit his remedy to a mandatory injunction, but
his waiver does not create an irreparable injury. Without a
showing of an irreparable injury, Curran is not entitled to a
mandatory injunction.
As Curran has not shown that his property was irreparably
damaged, or that inverse condemnation would not be an adequate
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remedy, the District Court concluded correctly that his only remedy
is an action for condemnation or damages.
The Department filed a cross-appeal, raising an issue not
addressed by the District Court: whether the District Court has
jurisdiction to order the Department to replace the stream
crossing.
The Department argues that even if the District Court had
ordered the Department to rebuild the stream crossing, the
Department could not have done so without a permit from the United
States Army Corps of Engineers, pursuant to 33 U.S.C. 5 404 (the
Clean Water Act). Further, the Department argues, because the
District Court has no authority to order the Corps of Engineers to
issue such a permit, the Department could find itself enjoined to
rebuild a bridge that is prohibited by the federal government.
Because we affirm the District Court's decision to deny the
injunction, we need not address this issue. Federal penit
requirements would be a consideration only if the District Court
had decided to grant the injunction.
Af f irmed .
We concur:
Justice Karla M. Gray dissenting.
I respectfully dissent. The majority totally fails to address
the alleged nuisance which is the pivotal issue in this case, and
the availability of an injunction in a nuisance setting; in so
doing, it ignores altogether the Decision and Order of the District
Court which is before us for review. As a result, it is my view
that the majority opinion is not only incorrect, it is
substantially irrelevant to the case before us. Based on the
analysis set forth below, I would reverse the District Court and
remand f o r further proceedings.
As a threshold matter, I note that the ~istrict Court's
decision was issued prior to any factual determinations being made
in the case, while that decision granted the Department's Motion
to Deny Injunction, rather than ruling on a Rule 12 (b) (61,
M.R. C i v .P. , motion to dismiss, it is clear t h a t the court accepted
Currantsallegations as true for purposes of its decision. I will
do the same.
In general, the District Court determined that Curranas
nuisance allegations and request for injunction against a
continuing nuisance glwould well taken but fortt
be the fact that
both arose out of the Departmentls construction of a stream
crossing pursuant to statutory authority. Specifically, the court
first determined that, taking Currantsallegations as true, it is
fflikelylf
the flood waters complained of could be considered a
nuisance under 5 27-30-101(1), MCA. The court went on to note that
subsection (2) of that statute provides that nothing done or
maintained under the express authority of a statute can be deemed
a nuisance. I agree with the District Court's analysis to this
point.
The court then correctly determined that 5 60-2-201, MCA,
expressly authorized the Department to construct the stream
crossing. On that basis, it concluded that no injunction was
available because the flood waters could not constitute a nuisance,
as a matter of law, pursuant to 5 27-30-101(2), MCA. Having thus
removed the nuisance question from the case, the District Court
based its determination that an injunction was not available on
Riddock, a case not involving a nuisance.
It is my view that the District Court erred in these latter
stages of its analysis. It is true that 5 60-2-201, MCA, expressly
authorized the Department to construct the stream crossing.
Nothing in that statute, however, authorizes the Department to
create and maintain flood waters on the private property of a
Montana citizen, the circumstance asserted by Curran to constitute
a nuisance. The District Court's statutory analysis is contrary to
established principles and recent case law.
This Court has repeatedly held that a governmental entity is
entitled to no more deference than a private citizen in matters of
creating a nuisance. Knight v. City of Missoula (1992), 252 Mont.
232, 247, 827 P.2d 1270, 1279; Walton v. City of Bozeman (l978),
179 Mont. 351, 356, 588 P.2d 518, 522; Lennon v. City of Butte
(1923), 67 Mont. 101, 106, 214 P. 1101, 1102-3. In each of those
cases, we expressly rejected the governmental entity's argument
that 5 27-30-101(2), MCA, prevented a claimant from asserting a
nuisance claim against it. In Kniaht, we stated that:
...
[WJhen a governmental entity in its method of
administration of [its governmental powers] creates
a nuisance it is not exercising the governmental function
but is doing something forbidden by law.
Here, no statute expressly authorized the actions of the
Department alleged to constitute a nuisance--namely, the creation
and maintenance of flood waters on private property. Therefore,
the District Court erroneously concluded that 9 27-30-101(2), MCA,
prevented a finding of nuisance as a matter of law.
Once the nuisance claim is correctly reinserted in this case,
and assuming with the District Court that Curran can establish a
continuing nuisance, the availability of an injunction can properly
be addressed. This Court has consistently held that an injunction
is a proper remedy to abate a continuing nuisance. Boyer v.
Karagacin (l978), 178 Mont. 26, 32, 582 P.2d 1173, 1177-8; Floyd v.
City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827;
Wilhite v. Billings & Eastern Montana Power Co, (19091, 39 Mont. 1,
11, 101 P. 168, 171. In cases of continuing nuisance, damages are
inadequate because the injured party is forced to bring a
multiplicity of suits in successive actions for the recurring
injury. See Floyd, 412 P.2d at 827; Hart v. Wagner (Md. 1944), 40
A.2d 47, 50.
I will not address at any length the majority's
: inverse
condemnation theory. I note, however, that the availability of
such a remedy is entirely speculative on the limited record before
us. In addition, as noted above, Riddock was itself an inverse
condemnation case, not a nuisance case. We determined that an
injunction was not an alternative or cumulative remedy to the
inverse condemnation claim.
In this regard, it is interesting t o note that neither party
appears to assert--at least consistently--the propriety or
availability of an inverse condemnation claim. Curran argues that
no "public purposeM is served by the flooding of his land. I n its
answer t o Curran's complaint, the Department asserted as an
affirmative defense that any flooding was attributable solely to a
combination of w a r m weather and rain; in support of its Motion to
Deny I n j u n c t i o n , it averred via affidavit that t h e creek had
flooded Currants land prior to the installation of the culverts.
The only fair characterization of this position is that the
Department contends that no "takingw occurred. Thus, the record
positions of both parties run counter to the existence of the
elements necessary for an inverse condemnation action and,
therefore, to the availability of such an action to Curran as a
remedy.
I also disagree with the majority1 characterization of
s
Wilhite. We concluded i n Wilhite that an injunction w a s available
under the circumstances of that case, circumstances that are, as
the District Court stated, "so similar to the case at bar." We
stated that the record showed a simple and ordinary case of
maintaining a nuisance to the plaintiff's damage. Wilhite, 101 P.
at 171. The majority's statement that we "left openqf the
possibility of an injunction in Wilhite is simply incorrect; we
expressly approved of an injunction to abate a nuisance against an
entity with the power of eminent domain, remanding only for the
district court to narrow the scope of the injunction it had issued.
Wilhite, 101 P. at 171. Finally, the majority erroneously
concludes as a matter of law that no injunction is available in
this case and then makes unstated and entirely premature factual
determinations in order to "find no warrant" for the issuance of an
injunction of a certain scope. I cannot agree.
As a final matter, I agree wholeheartedly with the majority's
statement of public policy that we should ensure compensation for
a damaged landowner by requiring the State to purchase any land it
takes for a public purpose. The statement has little relevance to
the case before us, however. Curran does not claim that the
Department has taken his property; he maintains that the Department
is maintaining a nuisance upon it.
The threshold issue before us is whether, taking Currants
allegations as true, he may be able to establish a nuisance or
whether, as the District Court concluded and the majority does not
discuss, he cannot establish a nuisance as a matter of law. Upon
that determination revolves the ultimate issue of whether an
injunction is available.
I would reverse the District Court's determination that the
flood waters cannot constitute a nuisance as a matter of law and
remand for further proceedings.
c
Justice Terry N. Trieweiler joins in the foregoing dissent.
ustice