Limberhand v. Big Ditch Co.

NO. 84-418
IN THE SUPREME COURT OF THE STATE OF MONTANA
1.985

CONNIE LIMRERHAND, Individually, and
as Personal Representative of the
Estate of JAYIjON LIMBERHAND, Deceased
Minor,
Plaintiff and Appellant,

BIG DITCH COMPANY; CITY OF BILLINGS;
KEN NICHOISON and ALLEN PJICHOLSON, each
individually and d/b/a APPLE CREEK
PROPERTY MANAGEMENT, INC.,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Paul. M. Warren argued, Billings,
Montana
For R.espondent:

Crowley, Haughey, Hanson, Toole & Dietrich; Don Harris
argued for Rig Ditch Co., Billings, Montana
Keefer, Roybal, Hanson, Stacey & Jarussi; J. Dwaine
Roybal argued for City of Billings, Billings, Montana
Jardine, Stephenson, Blewett & Weaver; Lon T. Holden
argued for Micholson, Great Falls, Montana
For Amicus Curiae:
Ted J. Doney for Mont. Water Development Assoc.,
Helena, Montana

Submitted: IqaY 2, 1935

~ ~ ~ i d ~ d : 26, 1985
September

Filed :

Clerk
Mr. Justice John C. Sheehy delivered. the Opinion of the
Court.

Appellant, Connie Limberhand, brought this action j n the
District Court, Thirteenth Judicial District, Yell-owstone
County, to recover damages for the alleged wrongful death of
her 18-month-old son, Jaylon, who drowned in an irriqat-ion
ditch.
The irrigation ditch was a lateral from the main channel
of the Big Ditch which was constructed early in this century
by the Minnesota and Montana Land Improvement Company and
subsequently acquired by the Big Ditch Company, which
currently owns and operates the ditch and laterals. Rig
Ditch Company owns the right-of-way where the ditches flow
but it does not own the adiacent land. This particular
lateral originates west of the City of Bill-ings and ends at
Nina Clare Street, approximately one mile within the Billings
city limits. Water from the ditch system, including the
lateral, is used to irrigate agricultural and other lands.
Apple Creek Apartments, an apartment complex owned and
managed by Ken and Allen Nicholson, who do business under the
various corporate names appearing above, are located on Lands
which border the irrigation ditch where Jaylon Limberhand
drowned on June 27, 1981. It appears from the record here,
though not clearly (unfortunately, all the parties here have
failed adequately to develop the applicable facts, and some
of the facts herein stated are gleaned. from their briefs),
that Apple Creek Apartments are located west of Rehberg Lane
and west of a daycare center, which also abuts the irrigation
ditch, and which is completely fenced. A fence separates the
Apple Creek Apartments on the south side from other
resid-entialproperty. Apple Creek Apartments consists of two
buildings, one larger than the other and between the
buildings and extending northward from one of them toward the
ditch is a paved parking lot which abuts the ditch easement,
perhaps within 30 feet of the irrigation ditch.
As admitted by the Ni.cholsons, on the day of the
accident, Connie Limberhand and her young son were guests of
certain tenants residing at the Apple Creek Apartments.
Jaylon Limberhand apparently wandered away from his mother,
left the apartment where they were visiting, crossed the
parking lot which separates the apartment complex from the
ditch, and slipped or fell into the ditch. Jaylon survived
for 1 day in the hospital.
Plaintiff predicates liability as to the City of
Billings on the grounds that the City, in the enforcement of
its ordinances, failed to declare the open irrigation ditch
here a public nuisance and to order the ditch closed. or other
protective measures taken by Rig Ditch Company to prevent
drowning accidents.
Each of the named defendants moved the court for a
summary judgment in their respective favors, and the District
Court granted summary judgments as to all of the defendants.
Connie Limberhand appeals to this Court from each
summary judgment against her. She poses the following issues
on appeal:
1. With respect to Big Ditch Company the District Court
erred in holding that:
(a) Connie Limberhand had not met the elements of
attractive nuisance as a basis of liability against Big
Ditch.
 (b) Connie Limberhand did not state a cause of
action in negligence against Big Ditch.
(c) The City Ordinances place no additional d-uty
or burden upon Big Ditch Company.
2. With respect to the City of Billings, Connie
Limberhand argues the District Court erred in holding that
the City of Billings was under no duty to act and declare the
irrigation ditch a nuisance and require implementation of
protective devices.
3. With respect to defendants Nicholsons, Connie
Limberhand argues the District Court erred in holding that
adjacent landowners owed no duty to the decedent to protect
in anyway against drowning accidents on lands adjacent to the
Nicholsons' land holdings.
We affirm the summary judgment granted by the District
Court in favor of the City of Billings. We reverse the
summary judgments entered in favor of Big Ditch Company and
the Nicholsons, and remand to the District Court for further
proceedings in accord with this opinion.
I. Big Ditch Company
-
A. Attractive Nuisance
The doctrine of attractive nuisance is recognized in
Montana and we have recognized the Restatement (Second) of
Torts 339 as setting forth the elements necessary to
establish an attractive nuisance. Big Man v. State (Mont.
1981), 626 P.2d 235, 240, 38 St.Rep. 362, 368; Gagnier v.
Curran Construction Company (1968), 151 Mont. 468, 473, 474,
443 P.2d 894, 897, 898; Driscoll v. Clark (1905), 32 Mont.
172, 80 P. 1. Whether the doctrine of attractive nuisance
should be applied to drowning incidents in irrigation ditches
has not been clearly stated by us.
 Tt is true that in Fusselman v. Yellowstone Valley Land
and Irrigation Co. (1917), 53 Mont. 254, 163 P. 473, this
Court made reference to the elements of attractive nuisance
in sustaining a directed verdict by the District Court
against a plaintiff seeking damages for the drowning death in
an irrigation ditch in Livingston of a three-year-old girl.
In 1917, this Court was of the opinion that in a pleading for
injuries received upon the defendant's property, the
complaint must disclose by what right the injured party was
upon the premises. In Fusselman, we held that because of the
failure of the plaintiff to allege that the decedent was
attracted to the canal or that by reason of its peculiar
attractiveness, she went upon the canal and met her death,
the complaint failed to state a cause of action under the
doctrine of the turntable cases.
In the case before us, Connie Limberhand contends that
the doctrine of attractive nuisance is applicable as to the
R i g Ditch Company and that she meets here the elements of

attractive nuisance as set forth in Restatement (Second) of
Torts, 339. Big Ditch apparently accepts the applicability
of the attractive nuisance doctrine to this case, but
contends the elements are not met.
A problem exists with respect to the automatic
application of the attractive nuisance doctrine to ordinary
irrigation ditches. While such irrigation ditches are
artificially constructed, for the most part they have natural
characteristics, and there may be little to distinguish them
from the numerous streams, rivers and creeks that occur
naturally in Montana, and flow in many instances through
towns, vil-lages and cities. The attractive nuisance doctrine
is not quite applicable to such artificial bodies of water;
otherwise it could be contended that a landowner through
whose property a natural stream flows is in reality
maintaining an attractive nuisance.
Tt is because courts have failed to recognize the
distinction between bodies of water having natural
characteristics and other artificial bodies such as swimming
pools, sewage treatment plants and the like, that there
appears to be a disparity in the holdings of courts with
respect to drowning incidents in artificial bodies of water.
For example, the rule announced in Fusselman, that there must
be an implied invitation to a child to come upon the owner's
land in order to hold the owner liable is not the law of this
state tod-ay. There are, however, cases in this State and
others from which a proper rule can he drawn.
Troglia v. Butte Superior Mining Company (9th Cir.
1921), 270 F. 75, was a case involving an eleven-year-old boy
who drowned while swimming in a pond on the premises of the
defendant mining company. The pond. had been constructed to
furnish water to a mill, and was formed by damming a small
stream. The pond. was 100 feet long and 75 feet wide and from
1 to 12 feet deep. It was not enclosed. There were notices
posted around. it which said "no trespassing," "private
property," "10 feet deep," an.d "keep away." Nonetheless,
boys swam there in summer as a matter of practice. This
particular decedent was strong, in the seventh grade and able
to read. After two hours of swimming in the pond, he
apparently got cramps and drowned. The mining company had an
attendant for a pump nearby.
In Troglia, the Court of Appeals stated:
The degree of care required of one who maintains on
his land an artificial pool for a useful purpose is
not greater than that required of one through whose
 land flows a natural strea-m,and he is bound to no
special care or precaution for the protection of
children who are in the habit of swimming in the
same, unl-ess there is in the pool some peculiar
danger, in the nature of a hidden peril or trap for
the unwary, of which he has or ought to have
knowledge.

It is noteworthy that Troglia was decided in 1921 before
the decision in Erie v. Tompkins (1938), 304 U.S. 64, 58
S.Ct. 817, 82 L.Ed. 1188, but nevertheless, Troglia spoke a
rule applicable to a Montana decedent.
In a recent case before the Ninth Circuit, Harmon v.
Billings Bench Water Users Association (9th Cir. 19851, 765
F.2d 1464, the Court of Appeals reversed a summary judgment
in favor of the ditch company granted by the federal district
court in a drowning case in Montana. The Court of Appeals in
Harmon accepted as settled that the attractive nuisance
doctrine was applicable to irrigation ditches in Montana. In
so stating, it relied on -
Troglia, supra, and upon Coeur
dlAlene Lumber Company v. Thompson (9th Cir. 1914), 215 F.
8. The Court of Appeals decided that there was a genuine
issue of material- fact as to whether the ditch might have
presented a hidden danger that Harmon's son did not
appreciate. The mother had testified that the concrete sides
of the ditch were much steeper than the natural bank they
ad.joined and that on the day in question, the water was above
the concrete sides. The Court of Appeals likened these facts
to those in Thompson (of which more later) and thus put the
Harmon case within the hidden danger exception of the
Restatement on attractive nuisance. The Court of Appeals
also disagreed with the Federal District Court's holding that
the erection of safety devices such as a childproof fence
along the course of the ditch would be an oppressive burden
upon the ditch company.
Coeur d'Al-ene Lumber Company v. Thompson, supra, was a
case arising from the Federal District Court in Idaho. There
t.he d.efendant had operated a lumber mill at St. Maries and
had built a cistern or well for storage of water. The water
was used in connection with the operation of the lumber mill.
The particular water body had been constructed by the company
or its lessee by digging around a natural spring, and placing
around the spring a wooden wall approximately 4 feet high and
4 feet square through which the water bubbled up and escaped.
The lessee in operating the mill had. d-umped sawdust and other
debris in such manner as to obstruct the discharge of the
spring after it filled the well. A pond of water accumulated
about 1-2 feet over the level of the planked well. Moreover,
sawd-ust floated on top of the resulting pond. The shallow
pond was 12 to 15 feet wide and 25 to 30 feet long and the
wooden construction underneath the water was hidden from
view. Two boys waded into the pond and one of them suddenly
dropped into the constructed well.. The other boy tried to
save him and both of them drowned. The Court of Appeals
found that the circumstances of the well constituted a hidden
trap and a-ffirmed a judgment for the wrongful death of the
decedent.
From Harmon, Troglia and Thompson, supra, we can deduce
a rule proper for application to drowning incidents involving
immature children rather than the attractive nuisance
doctrine. Accordingly, we hold that the degree of care of
one who maintains on his land an artificial stream or body of
water for a useful purpose, where the stream or body of water
has natural characteristics, is no greater than the degree of
care required of one through whose land flows a natural
stream or contains a natural body of water. The owner or
user of an artificial stream or body of water having natural
characteristics is bound to no special duty of care or
precaution for the protection of children who may enter
therein, unless there is in or about the artificial stream or
body of water some peculiar danger, in the nature of a hidden
peril or trap for the unwary, of which the owner or user has
or ought to have notice. The doctrine of attractive nuisance
as such does not apply to such artificial streams or bodies
of water anymore than it applies to natural streams or bodies
of water.
Such a holding has these advantages: (1) It avoids the
disparity in the cases, some of which hold that attractive
nuisance is applicable to irrigation ditches, and most of
which hold it is not; (2) the holding is based more on the
concept of negligence than attractive nuisance, and the
ordinary concepts of negligence, that is, duty, breach and
proximately-caused injuries are more useful in determining
liability in such instances; and (3) the holding avoids legal
fictions, such as attractive nuisance, which developed
originally to excuse the unwitting trespass by children.
In Harmon, in footnote 3, the Circuit Court of Appeals
felt that this Court had vacillated on the necessity of
status of the injured party in determining the duty owed by a
property owner to an injured party. 765 F.2d at 1467. In
Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38
St.Rep. 545, 549, in construing section 27-1-701, MCA
(formerly section 58-607, R.C.M. 1947), we held that the
statute prevented us from distinguishing between social
guests and invitees in determining the liability of the
landowner for injuries received. We regard the same statute
as decl-aring the applicable law as to the duty of landowners
to persons though they may be trespassers. The test is
always not the status of the injured party but the exercise
of ordinary care in the circumstances by the landowner. The
statute provides:
Everyone is responsible not only for the result of
his wilful acts but also for an injury occasioned
to another by his want of ordinary care or skill in
the management of his property or person except so
far as the latter has wilfully or by want of
ordinary care brought the injury upon himself.
Section 27-1-701, MCA.
Although in a later case, Cereck v. Albertson's, Inc.
(1981), 1-95 Mont. 409, 412, 637 P.2d 509, 511, we stated that
the duty imposed on a property owner depends on the status of
the injured party, that statement is not correct in the light
of section 27-1-701, MCA, above quoted.
It appears plain therefore, that the motion for summary
judgment was submitted for decision to the District Court as
to Big Ditch Company upon an incorrect theory of liability.
We therefore remand. this cause to the District Court with
respect to Big Ditch for a reconsideration of the motion for
summary judgment based on the rule of law expressed herein.
We express no opinion as to what that decision should be at
this juncture.
B
--..
.
A
Neali.ence
In addition to her theory on attractive nuisance,
Limberhand alleged in her amended complai-nt that the water
flow in the ditch was great and that the maintenance of the
ditch created a deceptive condition because of grass and
weeds growing along the edge of the ditch and under the
surface of the water. She also alleged that the
construction, design and maintenance of the ditch omitted all
safety measures such as warnings, fences or other protective
devices, and that the hazards and dangers of the ditch were
hidden and not discoverable by a child of tender years.
In the discussion on attractive nuisance, we have set
forth a rule to determine liability, if any, of the owner of
lancis which contain artificial streams or bodies of water
with natural characteristics. Tf on remand the District
Court determines that a genuine issue of material fact exists
as to whether the irrigation ditch here in question presented
a peculiar danger in the nature of hidden peril or trap for
the unwary, a fact issue would arise for a jury or other
trier of fact. It would follow that the court would then
instruct the jury that the duty of providing warnings, fences
or other protective devices for the unwary would be measured
by the landowner's duty to exercise "ordinary care or skil-1
in the management of his property" pursuant to section
27-1-701, KCA.
All questions of negligence in this case on the part of
Big Ditch Company are inextricably bound up in the primary
issue whether the ditch presented a peculiar danger in the
nature of a hidden peril or trap for the unwary.
11. The City of Billings
Ordinances
Limberhand complains that Big Ditch Company is in
violation of City of Billings Ordinance No. 4343, section
1-0.80.030, which states:
Every person owning or operating any irrigation
ditch or system or portion thereof within the City
shall care for, mainta.in and control said
irrigation ditch, system, water being transported
and concomitant structures. Said care, control and
interactions and reactions to structures and
impediments not controlled or maintained by persons
 owning or operating the irrigation systems. The
duty imposed hereby shal-1 extend to control and
removal of all obstructions, litter, debris, plant
materials, loose earth, rocks, stones, concrete and
wood material without limitation in, on, or around
said irrigation ditches.
It is the contention of Limberhand that the ordinance
was violated by the Ditch Company, at least as to the plant
materials, and therefore summary judgment was improper.
Militating against Limberhand is the paucity of facts
marshalled by Limberhand before the District Court to show
that plant materials or other debris accumulated in such
manner as to violate this ordinance, and to be a legal cause
of the drowning.
We examine the applicable statutes and ordinances,
however, because the court may have to decide issues
thereunder on remand.
Section 7-31-4103, has been on the hooks in
substantially its present form since 1921. It provides:
The city or town council has power to regulate the
use and construction of irrigation ditches, drains,
and flumes within or running through any city or
town.
With respect to open ditches, the legislature enacted
Part 42, Title 7, M.CA, in 1961 for the avowed purpose of
preventing the drowning of children within the limits of an
incorporated city or town (sections 7-31-4201 through
7-31-4207, incl., MCA).
Under 7-31-4203, MCA, it is declared that water that
flows in an open ditch in an incorporated city is a public
nuisance if the city or town, acting through its governing
body declares it to be a nuisance. However, section
7-31-4207, MCA, provides that the part does not apply to
ditches carrying water used for commercial irrigation water
purposes. Ostensibly then, under section 7-31-4207, MCA, any
ordinances adopted by the City of Billings appl-ying to the
Big Ditch Company lateral under the authority of section
7-31-4201, et seq., MCA, for the purpose of declaring a ditch
a public nuisance, and providing remedial measures is outside
the power of the City of Billings.
Ordinance No. 4343 was adopted by the City of Billings
on April 27, 1981. Under its provisions, we have already set
out section 10.80.030 relating to the care and maintenance of
irrigation ditches. The ordinance also provides that failure
to care for and maintain the ditches as provided for in
section 10.80.030 shall constitute a public nuisance. There
are provisions for punishment for vj.olations of the
ordinance. The ordinance further provides that the City
cannot order a ditch to be discontinued or prohibit the use
of the ditch if it is used by 10 percent or more of the
abutting landowners on the ditch. In this case, 30.6 percent
of the landowners used the ditch for irrigation purposes.
The further contention of Limberhand is that the City
had a duty to go forward in this case and determine that the
ditch in question is a nuisance and take remedial measures.
Limberhand predicates negligence and liability on the part of
the City for failure to take such action.
Limberhand fails in this contention on three points: 1)
The state statutes empowering cities to adopt ordinances
designed to prevent the drowning of children do not apply to
commercial irrigation ditches; 2) The city ordinance itself
does not apply since more than 10 percent of the abutting
landowners use the ditch for irrigation purposes; and 3) Any
further action on the part of the City of Billings would
require legislative action by the City Council. The failure
of the City to take legislative action may not be the basis
of a suit against it for liability, since the City is immune
under section 2-9-111, MCA, providing immunity from suit for
legislative action and omissions. The summary jud.qment in
favor of the City of Billings is therefore affirmed.
(We do not reach the question, if the question exists,
whether Billings Ordinance No. 4343 supersedes state law
because of the nature of the charter of the City of
Billings.)
In like manner, there is nc basis to predicate liability
against Big Ditch based upon the city ordinance.
111. The Nicholsons
The Nicholsons, d/b/a Nicholson, Inc. and d/b/a Apple
Creek Ltd. and Property Management Inc. , hereafter
Nichol-sons, owned and managed the Apple Creek Apartments that
border the irrigation ditch where Jaylon Limberhand drowned
on June 27, 1981. On the day Jaylon drowned, he and his
mother, Connie Limberhand, were visiting Connie's sister who
was a tenant of the Apple Creek Apartments. The District
Court sustained Nicholsons' motion for summary judgment
holding that Nicholsons owed no legal duty to the appellant
or appellant's decedent.
Appellant contends that the question of whether
Nicholsons breached the common law duty to keep the premises
reasonably safe and to warn of any hidden or lurking danger
is one a jury should decide. We agree. It is well-settled
law in Montana that the social guest of a tenant in the
common areas of an apartment complex is afforded a degree of
protection from harm in relation to the duty of a landlord.
Piedalue v. Clinton Elementary School District No. 2 (Mont.
1984), 692 P.2d 20, 41 St.Rep. 2344; Rennick v. Hoover
(1980), 186 Mont. 167, 606 P.2d 1079; Olson v. Kayser (1973),
161 Mont. 241, 505 P.2d 394. The qrounds surrounding an
apartment complex a.re part of the common area. See Olson,
supra. We have said earlier in this opinion that the status
of Limberhand as a social guest is not controlling.
Nicholsons' duty is governed by the provisions of section
27-1-701, MCA, supra.
The issue of Nicholsons' potential liability based on
breach of a duty owed Limberhand's decedent poses a two-part
query. One, could an irrigation ditch constitute a
sufficient danger to tenants or their guests of an apartment
complex to require that the 1and.l.ord take precautionary
measures in order to satisfy his du.ty to keep the premises
reasonably safe? Two, does the fact that the irrigation
ditch is owned by another and is located on land adjoining
the landlord's common area absolve the landlord of liability
as a matter of law?
The apartment owners owed a duty in this case to use
ordinary care to have their premises reasonably safe or to
warn of a i hidden or lurking danger.
ry What constitutes
reasonably safe premises is generally considered to be a
question of fact. Whether a premises is safe depends to a
large extent on what use the property is put to, its setting,
location and other physical characteristics, and the type of
person who would foreseeably visit the premises, as well as
the specific type of hazard. or unsafe condition alleged.
These and other factors are embodied in the legal concept of
"reasons-ble under the circumstances." For example, the
existence of an open irrigation ditch in a farmer's field
poses little danger compared to the same irrigation ditch
located near an apartment complex populated by families with
sniall children.
 The duty of a landlord under section 27-1-701, MCA to
use ordinary care in managing his property imposes on hj.m a
duty to make the premises reasonably safe under the test of
ordinary care for all persons who forseeably might properly
come on the premises, old and young, large and small.
Tenants and their social guests are necessarily users of
rental apartment complexes.
We conclude that a question of material fact exists as
to whether the irrigation ditch could present sufficient
danger to tenants and their social guests of this apartment
complex so that by not taking any remedial or warning
measures the landlords may have breached their duty to keep
the premises reasonably safe. Whether the landlord breached
this duty is a jury question.
We do not mean that landlords are absolute insurers of
the safety of their property and environs. What we do mean
is that the duty of landlords to others in the management of
their property is to use that degree of ordinary care which
reasonable persons would use under the same or similar
circumstances.
Having affirmatively answered the first question of the
two-part query, we address the second question. How does the
fact the ditch is not located on Nicholsons' land affect
Nicholsons' duty to keep his premises reasonably safe?
Nicholsons flatly state in their brief that there exists
no duty on the part of a landowner to guard against
conditions on adjoining property over which they have no
dominion or control. Nicholsons cite cases that stand for
the proposition that an adjacent property owner is not liable
for injuries sustained by a youth who gained access to a
hazardous condition by crossing his land. These cases are
clearly distinguishable from the instant case. Two cases,
however, are on point. Walters v. Greenglade Villas
Homeowners Association (Fla. App. 1981), 399 So.2d 538, 539,
holds there is no duty on a condominium owners' association
to erect a fence to shield small children from the hazards of
a canal. In Jones v. United States (4th Cir. 1957), 241 F.2d
26, the federal court construed Maryland law as it existed in

1.957 (Maryland did not recognize the doctrine of attractive
nuisance) and held that the primary duty to inform, advise
and protect a child of tender years must rest upon the
parents or others in loco parentis.
Recently, in Piedalue v. Clinton Elementary School
District N o . 2 (Mont. 1984), 692 P.2d 20, 41 St.Rep. 2344, we

rejected a rigic? property line determination of liability.
In Piedalue, the plaintiff was a social guest visiting a
tenant of property owner, A1 Baide. Baide maintained a
primary road for ingress and egress from his trailer park.
Another road which appeared also to provide ingress and
egress from the premises abruptly ended in an irrigation
ditch 60 feet beyond Baide's property line. We held that
Baide's duty to have a reasonably safe premises could extend
beyond the premises to the dangerous condition located on
land adjacent to Eaidefs property.
The area owned by Nicholsons adjoining the irrigation
ditch was in the dominion and control of Nicholsons. If the
instrumental-ity causing harm is located adjacent to the
landowner's property, and the instrumentality poses a clear
and foreseeable danger to persons properly using the
landowner's premises, we see no reason to shield the
landowner from liabil-ity as a matter of law. A duty to take
some reasonable precautions may exist. This duty may in some
instances be discharged by a warning; under other
circumstances remedial action may be required. A jury should
be given the opportunity to determine if Nicholsons used
reasonable care unc?er the circumstances in discharqing any
duty they may have owed to Jaylon Limberhand to maintain a
safe premises. The fact that the irrigation ditch was not
located on Nicholsons' land does not as a matter of law bar
appellant's claim.
Nicholsons further contend that 5 85-6-107, MCA,
statutorily imposes exclusive liability on incorporated water
users associations (Big Ditch Company) for any injury caused
by failure to maintain safe working and operating conditions
of an jrrigation system. Nicholsons assert this statute bars
appellant's case against them. Nicholsons read the statute
too broadly. Section 85-6-107, MCA, appears in the code
defining the rights and liabilities of ditch companies with
respect to the State of Montana. The State disclaims
liabi-lity for injuries allegedly caused by its regul-a
tion of
such companies. We do not find the statute applicable.
Nicholsons argue that constructing a fence or other
barricade would interfere with Big Ditch Company's rights and
place Nicholsons in the untenable position of safeguarding
its property or being subjected to suit by Big Ditch Company.
This argument is based on speculation and lacks merit.
Nicholsons offered no proof that erecting a fence would
interfere with Rig Ditch Company's rights. A fence
constructed on Nicholsons' property may not interfere with
Big Ditch Company's right-of-way anymore than the
construction of the apartment complex itself.
Nicholsons further argue that they should not be
required to construct a fence because other landowners have
 not. Nicholsons' prudence is not measured by the imprudence,
if any, of others. Nicholsons' duty is measured by the
standard of reasonable care.
We reverse the order of the District Court qranting
summary judgment to Nicholsons and hold that issues of
material fact exist concerning whether Nicholsons exercised
reasonable care in maintaining a safe premises.
. We remand
this case for further proceedings in accordance with this
opinion.
Reversed in part; affirmed in part. Costs to appellant.

We Concur:

d d t ~ L p
Chief Justice