concurring in part and dissenting in part:
I concur with the majority’s statement of law as it relates to the proof requisite to *529establish the plaintiff's entitlement to damages for anticipated future flooding, i.e., proof of reasonable probability of the alleged nuisance’s indefinite continuance. However, it should be noted that, even viewing the evidence most favorably to the party against whom the summary judgment was rendered, as we must, see Taylor v. Choules, 102 Idaho 222, 628 P.2d 1056 (1981), the only evidence of reasonable probability presented suggests that an indefinite continuance of the nuisance would occur only if the lagoons are improperly operated or maintained in the future. Max Williams, plaintiffs’ engineer, upon whose deposition plaintiffs’ claim rests, uses the word “inevitable” in referring to future flooding, but only in referring to the operation and maintenance of the lagoons.
“Q. Do you have an opinion as to whether, within the bounds of reasonable scientific and engineering probabilities, it is more likely than not that the lagoons which you observed will breach in the future?
“A. Well, again, there has to be a considerable amount of clarification as to what will be done as far as operation and maintenance is concerned, or many other factors related to what can happen in this time period.
“Q. I take it, then, that you would agree with me that no breach of any of the dikes which you observed is inevitable?
“MR. STONE: Based upon the facts as they exist right now?
“MR. STROTHER: Based on what he has seen and all the materials that he has considered.
“A. My opinion, based upon what I observed and based upon what I would project as the deterioration of the soil cement, if something is not done to correct that condition, and the action of the rodents, if something is not done to correct that condition, and the potential for wave action, if something is not done to correct that, I would say that failure is inevitable.
“Q. But isn’t it obvious that the operar tor and owner of the dikes, at least, has the choice of whether or not to do any of the things which you believe have to be done?
“A. Sure.
“Q. So at least as we sit here today, a break is not inevitable, is it?
“A. It is inevitable unless action is taken.
“Q. Well, it’s all up to the choice of the owner and the operator of the lagoon cells?
“A. Sure.”
Thus, while there is sufficient evidence of future probability present to reverse the summary judgment as to the City of Rupert, which is the entity responsible for future operation and maintenance of the sewage lagoons, there is no evidence to support the plaintiffs’ claim against the designer and the builder of the lagoons. If, as plaintiffs’ engineer testified in his deposition, the probability of future failure will be determined by whether or not the owner and operator of the dikes provides the necessary maintenance, that can hardly be the responsibility of the designer and the builder of the lagoons. Thus, the trial court’s summary judgment as to the designer and the builder should be affirmed.
If the trial court’s summary judgment in favor of the designer and the builder were affirmed, leaving only the City of Rupert as the defendant in the action, the remaining claim for future flooding would in effect involve the question of inverse condemnation. An action for damages for permanent injury to land caused by probable future flooding in effect involves the granting of an easement to the tortfeasor, or a taking of the land for the tortfeasor’s purposes. The same law review article relied upon in the majority opinion in establishing its “reasonable probability” standard, states:
“If ... the plaintiff should desire to end the controversy and obtain ultimate compensation in one action, he should have the option or power to do so, subject to two requirements: (1) that he, in effect, *530tender to the defendant an easement to continue the damaging condition by seeking compensation upon the basis of the indefinite continuance of the nuisance; and (2) that he prove a reasonable probability of its indefinite continuance.” McCormick, Damages for Anticipated Injury to Land, 37 Harv.L.Rev. 574, 597 (1937).
Thus, the plaintiffs should recognize that by obtaining present damages for anticipated future flooding, the defendant would not only be compensating plaintiffs for their losses, but would be acquiring the right, in the nature of an easement, to continue such flooding in the future without paying any additional or future compensation or damages. Cf. Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982) (in inverse condemnation proceeding defendant’s actions in causing water to back up on plaintiff’s land amounted to a taking of an easement to flood for which just compensation must be paid). In this case the trial court granted a partial summary judgment against the plaintiffs on their claim of damages for diminution in value of their land due to potential future flooding, but denied summary judgment on that portion of plaintiffs’ complaint asserting an inverse condemnation claim against the City of Rupert. Thus, by reversing this case on appeal as to the City of Rupert, those two actions, the action for damages based upon a reasonable probability of future flooding and the remaining action for inverse condemnation, are essentially the same and they should be consolidated and tried as one claim.
McFADDEN, J., pro tern, concurs.