dissenting:
Today the majority chooses to ignore the record, relevant Montana precedent and a jury’s finding following a seven-day trial. In doing so, the majority reverses the jury’s finding based on the District Court’s handling of two jury instructions. The objectionable instructions merely serve the majority as a conduit to rule on this issue as it pleases. Accordingly, I dissent.
A review of the record reveals that, sometime prior to 1979, Trum*261bull Creek was relocated from its natural banks to its present location. Trumbull Creek’s present man-made channel is not sufficient to contain the Creek during a “50 year flood.” Such a flood occurred in 1979. Trumbull Creek’s carrying capacity is further hampered by excessive vegetation growth along its banks. Experts for both sides agree that Trumbull Creek’s carrying capacity is limited to 90 to 120 cfs. In 1979, the spring runoff, estimated at 330 cfs., was much greater than Trumbull Creek’s carrying capacity, causing the creek to flood.
Unfortunately for appellant State of Montana, Highway 40 runs through the above-mentioned flood plain. The State responded to the 1979 flood, during highway reconstruction in 1984, by placing four culverts under Highway 40 and by replacing Trumbull Creek’s passage under the highway with a larger culvert. The State’s action caused Trumbull Creek and its flood waters to pass under the roadway. At trial the State argued that its action was not the cause of the flooding; rather, it was the proper and reasonable action in response to the flooding. The jury agreed that the State acted reasonably. See O’Hare v. Johnson (1944), 116 Mont. 410, 419, 153 P.2d 888, 891.
Appellants argue that the “common enemy doctrine” and “reasonable construction,” which are applicable to neighboring private landowners, cannot be used to limit liability of the state from its constitutional duty to pay just compensation for property taken or damaged through eminent domain. The majority, without so stating, apparently agrees with appellants’ contention.
The majority’s position should fail for the following reason. In its opinion the majority states: “In diverting such waters, the landowner is limited to reasonable care in avoiding damage to adjoining property. O’Hare v. Johnson (1944), 116 Mont. 410, 153 P.2d 888.” The majority then distinguishes State Highway Commission v. Biastoch Meats, Inc. (1965), 145 Mont. 261, 270, 400 P.2d 274, 278-279, which holds that the common enemy doctrine allows a condemning agency to change the flow of water on his property as long as it is not done with “malice or negligence.” The majority conveniently ignores that Biastoch is based on O’Hare.
Next, the majority holds the District Court erred when it amended jury instruction D — 25 to the point that D — 25 “was so confusing that it should not have been given.”
Instruction D — 25, as amended, provides:
“An uphill landowner owes no duty to his downhill neighbor to *262prevent the encroachment of surface waters from the property onto his neighbor’s. However, a landowner who actively diverts waters must act reasonably in consideration of the foreseeability of injury to the neighbor’s property and the amount of injury thereto.”
Appellants did not object when the District Court gave amended Instruction D — 25. After reading D — 25, it is my opinion that the majority is overreaching to find reversible error.
The majority also objects to the District Court’s refusal to give jury instruction D — 28. Instruction D — 28, offered by appellants without citation of authority, provides:
“You are instructed that if reconstruction by Plaintiff has caused a condition which has or will produce intermittent but inevitable recurring flooding, then Defendants should be justly compensated by said Plaintiffs, or Plaintiff for the depreciation if any, to the fair market value of Defendants’ property resulting therefrom.”
Instruction D — 28 was more properly stated by Instructions D — 3 and D-4, which provide:
“[Instruction D — 3.] The Constitution of the State of Montana provides that private property shall not be taken or damaged for public use without just compensation to the full extent of the loss being paid to the owners.
“[Instruction D — 4.] You are instructed that you should award the defendant as just compensation:
“1. the correct fair market value of the property actually taken; and,
“2. if the property actually taken is part of a larger parcel, the depreciation in current fair market value, if any, which will accrue to the portion not taken by reason of its severance from the portion taken by the construction of the highway in the manner proposed by plaintiff.”
Instruction D-3 instructed the jury that respondent is liable for private property taken without just compensation. Instruction D-4 instructed the jury that just compensation includes fair market value and land value depreciation. Instructions D-3 and D-4 properly instructed the jury based on the Biastoch-O’Hare rule and Article II, Section 29, 1972 Mont. Const.
In summary, it is my opinion that the majority has sought to ignore Montana precedent that the common enemy doctrine applies to condemning agencies. The issue at hand is now being sent back to the District Court to speculate what damages appellants might incur when the next “50 year flood” brings its runoff.
*263I must disagree with the majority’s decision to ignore the record, relevant Montana precedent and the jury’s finding.
MR. JUSTICE GULBRANDSON concurs in the foregoing dissent of MR. CHIEF JUSTICE TURNAGE.