No. 93-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
LEO J. DUCHAM, VERNA M. DUCHAM and
LENORA E. HYLAND,
Plaintiffs and Appellants,
-vs-
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Claude I. Burlingame, Attorney at Law,
Thompson Falls, Montana
For Respondents:
David L. Astle, Attorney at Law,
Kalispell, Montana
Submitted on Briefs: March 17, 1994
Decided: J u l y 6, 1 9 9 4
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
In this case, we review a judgment issued by the Twentieth
Judicial District Court, Sanders County, denying Plaintiffst
request for a permanent injunction to stop Defendants' discharge of
water across their property. We reverse.
In 1959 and 1961, Lenora Hyland (Hyland) purchased adjoining
tracts of property located north and south of each other in the
Trout Creek drainage in Sanders County. She used the land for
agricultural purposes, raising cattle, sheep and hay. A swale, or
shallow depression, crossed the two tracts from the northeast to
the southwest.
In 1963, Hyland built a small stock pond straddling the swale
on the northern tract. The pond originally was fed solely by
spring run-off; Hyland diverted seepage from an irrigation ditch to
fill the pond in 1968. She sold the two tracts in 1975 and
purchased property directly to the west of the southern tract. The
swale crosses the southeast corner of this property.
After intervening ownership of the northern and southern
tracts by other individuals, those tracts were purchased by the
parties to this action. Robert and Phyllis Tuma (the Tumas)
purchased the northern tract containing the stock pond in 1986 and
constructed a trout pond in the swale uphill from the stock pond.
The next year, they reconfigured the diversion mechanism at the
irrigation ditch, using a four-inch pipe to conduct water to the
trout pond. Leo and Verna Ducham (the Duchams) purchased the
southern tract in 1988.
In August of 1989, the Duchams and Hyland (collectively
referred to as Plaintiffs) filed a complaint asserting that the
water diverted by the Tumas to supply the trout pond was being
discharged across their property via the swale. They alleged that
the Tumas1 discharge of water constituted a continuing trespass and
interfered with the Duchams' cultivation of crops on the southern
tract.
Plaintiffs sought a temporary injunction during the pendency
of the action and a permanent injunction to stop the discharge of
water. Following a show cause hearing in August 1989, the District
Court declined to issue a temporary injunction but admonished the
Tumas to decrease the discharge of water to the minimum amount
required to maintain the trout pond. In response, the Tumas
reduced the opening of the four-inch diversion pipe to one-inch,
presumably reducing the amount of water diverted into the trout
pond and discharged down the swale.
Following a nonjury trial on June 3, 1993, the District Court
declined to grant Plaintiffs a permanent injunction. The court
found that water from the Tumas' trout pond flowed across
Plaintiffs' property via the swale and that the Tumas had no
express easement or condemned right-of-way for the discharge of
water. The court concluded that Plaintiffs were not entitled to an
injunction, however, because they had not proven that the Tumas 1)
had breached a legal duty in regard to the discharge of water; 2)
were negligent in any manner; or 3) had engaged in any unlawful
conduct. The grant or denial of an injunction is within the
discretion of the district court and will not be reversed absent an
abuse of that discretion. Gabriel v. Wood (1993), 261 Mont. 170,
174, 862 P.2d 42, 44.
Plaintiffs assert that the ~istrictCourt side-stepped the
dispositive issue before it--whether the Tumas had a legal right to
discharge water down the swale that would defeat their trespass to
real property claim. On that basis, they raise two arguments
challenging the court's conclusions of law.
They first argue that the court erroneously entered
conclusions of law on the irrelevant issues of the Tumass breach of
a legal duty and negligence. We agree. The Tumass negligence in
regard to the discharge of water was not explicitly or implicitly
raised in the Pretrial Order or at trial and, thus, simply was not
before the court. See Rule l6(e), M.R.Civ.P.; Zimmerman v.
Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342; Nentwig v.
United Industry (l992), 256 Mont. 134, 139, 845 P.2d 99, 102-03.
The court's entry of extraneous conclusions of law, however, did
not affect the substantial rights of the parties and is, therefore,
harmless error. See Woolf v. Evans (Mont. l993), 872 P.2d 777,
782, 51 St.Rep. 355, 358.
Plaintiffss second argument concerns the court's conclusion
that the Tumass conduct was not unlawful as a trespass to real
property. Given the court's failure to ascertain the Tumass legal
right to discharge the water, Plaintiffs argue that the conclusion
is erroneous as a matter of law. Our review of a district court's
legal conclusion is plenary. Steer, Inc. v. Deplt of Revenue
(1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.
We have adopted the elements of the tort of intentional
trespass to real property set forth in the Restatement (Second) of
Torts, § 158:
One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any
legally protected interest of the other, if he
intentionally (a) enters land in possession of the other,
or causes a thinq or third person to do so, or (b)
remains on the land, or (c) fails to remove from the land
a thing which he is under a duty to remove.
Branstetter v. Beaumont Supper Club (1986), 224 Mont. 20, 24, 727
P.2d 933, 935 (emphasis added). In this context, the "intent"
requirement is satisfied if the actor desires to cause the
consequences of the act or believes that its consequences are
substantially certain to result. Branstetter, 727 P.2d at 935.
The parties agreed in the Pretrial Order that water diverted
by the Tumas into their trout pond flowed from the Tumasl property
onto Plaintiffs' property. Thus, it is clear that the Tumas
I1caused a thing1#--namely,water--to enter onto land owned by
Plaintiffs, satisfying subsection (a) of Restatement (Second) of
Torts, 5 158. Furthermore, the District Court's finding No. 10
indicates that the discharge was intentional:
That shortly after Defendants Tuma purchasedthe property
they constructed a fish pond on their property by
diverting water from the Green Mountain Ditch and running
it through the fish pond, then onto the original pond
created by Plaintiff Hyland, then on to the swale.
It is clear that the Tumas desired the overflow from the trout pond
to be dispersed via the swale and, as surely as water runs
downhill, to cross Plaintiffs1 property. Thus, all elements of an
intentional trespass to real property are met in the case before
us.
Conduct which otherwise would constitute an intentional
trespass is not unlawful if it is privileged conduct pursuant to an
easement. Restatement (Second) of Torts, 5 188. In Montana,
easements are created by grant, reservation, exception or covenant,
implication or prescription. Kuhlman v. Rivera (1985), 216 Mont.
353, 359, 701 P.2d 982, 985. The Tumas agreed in the Pretrial
Order that an easement had not been created by express grant; nor
did they attempt at trial to establish any other type of easement
right to discharge water across Plaintiffs1 property.
As their sole defense, the Tumas argued that Plaintiffs were
equitably estopped from asserting the trespass to real property
claim. In support of this defense, the Tumas offered evidence of
Hylandlsconstruction of the stock pond in 1963 and their reliance
on the continuing ability to divert water into the stock pond and
discharge it via the swale when purchasing the northern tract.
The District Court made findings relating to the Tumas'
equitable estoppel defense, determining that Hyland originally
diverted water from the irrigation ditch to create the stock pond
and that the Tumas relied on the continuing existence of the stock
pond when purchasing the northern tract. The court did not enter
any conclusions of law on the issue.
Equitable estoppel is not favored and will be sustained only
upon clear and convincing evidence. Dagel v. City of Great Falls
(IggI), 2 5 0 Mont. 224, 235, 819 P.2d 186, 193. S i x essential
elements are necessary for equitable estoppel to apply:
1) There must be conduct, acts, language or silence by
the estopped party amounting to a representation or
concealment of facts;
2) these facts must be known to the estopped party at the
time of the conduct, or at least the circumstances must
be such that knowledge of them is necessarily imputed to
the estopped party;
3) the truth concerning these facts must be unknown to
the other party claiming the benefit of the estoppel at
the time they were acted upon;
4) the conduct must be done with the intention, or at
least with the expectation, that it will be acted upon by
the other party, or under the circumstances that it is
both natural and probable that it will be acted upon;
5) the conduct must be relied upon by the other party;
and
6) the other party must in fact act upon it in such a
manner as to change the other party's position for the
worse.
Daqel, 819 P.2d at 192-93.
It is clear that Plaintiffs did not make a representation or
concealment of fact which would satisfy the first element of
equitable estoppel. The Tumas purchased the northern tract from
persons not involved in this suit; they do not contend that either
Plaintiff played a role in that transaction. Thus, Plaintiffs were
not in a position to--nor did they--make a representation or
concealment of fact when the Tumas purchased the property.
There also is no merit to the Turnas' contention that the
''representation of factn element is satisfied by Hyland's
construction of the stock pond in 1963 and subsequent use of that
pond. These actions by Hyland are not representations of fact;
they are existing facts which cannot be construed as
representations by Hyland to the Tumas. Nor, we observe, does
Hylandfsconstruction and use of the stock pond necessarily relate
in any way to the Tumas' later construction and filling of the
trout pond at issue in this action. We conclude that Plaintiffs
are not equitably estopped from asserting their trespass claim.
Thus, on the basis of our conclusions that Plaintiffs
established a trespass to real property and that equitable estoppel
is not applicable here, we also conclude that the District Court
erred in concluding that the Tumasf conduct was not unlawful. As
a final matter, we must determine whether Plaintiffs are entitled
to a permanent injunction to stop the Tumas' discharge of water
across their property.
An injunction is appropriate "when it appears that the
commission or continuance of an act will produce 'irreparable
injuryf to the party seeking such relief." Curran v. Dep't of
Highways (1993), 258 Mont. 105, 107, 852 P.2d 544, 545. The
commission of a single act which is destructive to the affected
property, either physically or in the character in which it has
been held or enjoyed, can result in an irreparable injury. Madison
Fork Ranch v. L & B Lodge Pole Timber (1980), 189 Mont. 292, 302,
615 P.2d 900, 906. A continuing invasion of property rights also
constitutes an irreparable injury; absent injunctive relief, an
injured party would be forced to bring a multiplicity of actions at
law in order to be compensated for the ongoing injury. See Floyd
v. City of Butte (1966), 147 Mont. 305, 313, 412 P.2d 823, 827.
Leo Ducham testified that he could not cross the swale with
farm equipment because of the Tumas1 discharge of water across his
property, specifically recounting incidents in which a small
tractor and a fertilizer spreader became stuck in the swale.
Because he could not directly cross the swale to reach his property
on the other side, as historically had been done, Ducham indicated
that he was forced to use a county road that skirted his property
and crossed the swale via a culvert. The testimony supports
Plaintiffs1 position that the Tumas1 discharge of water interfered
with the agricultural use of the southern tract.
Ducham also testified that he was unable to hay the swale in
1989, 1990, 1991, and 1992 because of the discharge of water. In
addition, Hylandls testimony indicated that water flowed in the
swale across her property throughout each year following the Tumasg
construction of the trout pond. Thus, the discharge of water
constituted a continuing invasion of the Duchamsl and Hylandgs
property rights. Absent equitable injunctive relief, the Duchams
and Hyland would have no adequate remedy at law and would be forced
to institute an action for damages against the Tumas on an annual
basis. These are precisely the kinds of circumstances in which
courts of equity should intervene.
We hold that the District Court abused its discretion in
denying Plaintiffs' request for a permanent injunction. We remand
for the entry of a permanent injunction in Plaintiffs1 favor and
for further proceedings on the issue of whether Plaintiffs have
sustained damages and, if so, the extent of those damages.
Reversed and remanded. ,
We concur:
Chief Justice
w
Justices
Justice Fred J. Weber dissents as follows:
I dissent from the majority opinion and its reversal of the
judgment of the District Court denying a permanent injunction to
stop a discharge of the defendants1 water across plaintiffs' land.
In the Findings of Fact, Conclusions of Law and Judgment of
the District Court dated July 22, 1993, the District Court included
the following key findings of fact:
16. That the water discharging from Tumas' fish
pond follows the natural draw and flows across the
Duchams' property, Hyland's property and onto Wilson's
property.
17. That water which flows onto land owned by
Plaintiff Ducham was originally diverted by Plaintiff
Hyland onto land which she herself owned.
18. That in times prior to Tumas discharging water
from their fish pond, during the Spring of the year, the
Ducham draw flowed water. This water flowed as a result
of Spring snow melt and rain fall and water from the
Green Mountain ditch. Typically the Ducham draw would dry
up during the month of June, and by July the draw was
passable with haying equipment. Since the construction
of Defendants' fish pond, the flow of water throush the
draw may have increased, but the Plaintiffs failed to
establish the quantum of any increase. There is no
evidence of any material decrease in the amount of
Plaintiffs1 property available for hay production in its
traditional usase which has been caused by Defendants.
(Emphasis supplied.)
The foregoing are the findings which led the District Court to
conclude that an injunction was not appropriate. The majority has
not addressed this determination of fact by the District Court.
The above findings establish that the water flowed down this
draw as a result of spring snow melt, rain fall, water from the
Green Mountain ditch, and water originally diverted from the pond
by plaintiff Hyland. While there is no argument that some water
runs down the draw from the defendants1 fish pond, the District
Court pointed out that the plaintiffs had failed to establish the
quantum of any increase in the normal flow. In a similar manner,
the plaintiffs failed to present evidence of any material decrease
in the amount of their property available for hay production. I
conclude there is substantial evidence to support the foregoing
findings on the part of the District Court. I would therefore
affirm the denial of the injunction.
Chief Justice J. A. Turnage concurs in the foregoing dissent.
I
Justice William E. Hunt, Sr., concurs in the foregoing dlssent.
/
Justice
July 6, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Claude I. Burlingame
Attorney at Law
P.O. Box 9
Thompson Falls, MT 59873
David L. Astle, Esq.
Astle & Astle
705 Main St.
Kalispell, MT 59901
ED SMITH
CLERKOFTHE
SUPREME COURT
STATE OF
MONTANA