No. 80-208
IN THE SUPREME COURT OF THE STATE OF MONTANA
J. 0 BLASDEL and ETHEL BLASDEL,
.
Plaintiffs and Respondents,
THE MONTANA POWER COMPANY, a
corporation,
Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead
Honorable Robert C. Sykes, Judge presiding.
Counsel of Record:
For Appellant:
Warden, Christiansen & Johnson, Kalispell, Montana
Merritt N. Warden argued, Kalispell, Montana
For Respondents:
McGarvey, Lence & Heberling, Kalispell, Montana
Jon L. Heberling argued, Kalispell, Montana
Submitted: October 21, 1981
Decided: FED 2 1DBI
Filed:
: -. ,
J
. - 1982
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
In this inverse condemnation action the defendant,
Montana Power Company, appeals from a judgment in favor of
the plaintiffs landowners.
Plaintiffs-respondents, the Blasdels, filed suit on
December 1, 1960, against the Montana Power Company for
inverse condemnation of the Blasdel farm. B1-asdels claim
that Montana Power Company's construction and operation of
the Kerr Dam on Flathead Lake caused the water table to rise
and severely damage their farm.
Montana's Eleventh Judicial District Court, in and
for the County of Flathead, bifurcated the issues. In
February 1979, a two-week nonjury trial found liability and
a taking without just compensation. In November 1979, a
two-week jury trial established damages as follows:
jury verdict
interest
$115,448.64 litigation expenses*
$316,457.02 Total Judgment
Plus 10% interest from 12/10/79
*Awarded after a one-day nonjury trial
On appeal, Montana Power claims the cause is barred
by prescription and the statute of limitations. It also
challenges certain findings of fact, conclusions of law,
admission of certain exhibits, and attorney fees and costs
awarded to the plaintiffs.
In 1930 the Federal Power Commission issued a license
to the predecessor of the Montana Power Company to build
Kerr Dam located just off the south end of Flathead Lake.
That dam was completed in 1939, and in 1940 the appellant,
Montana Power Company, began to operate Kerr Dam. Prior to
the construction of the dam, the water level in Flathead
Lake r e m a i n e d a t 2883 f e e t a b o v e s e a l e v e l (FASL), e x c e p t
d u r i n g two months o f h i g h w a t e r e a c h s p r i n g . A f t e r t h e dam
was c o n s t r u c t e d i n 1939, t h e water l e v e l of F l a t h e a d Lake
r e m a i n e d a t 2893 FASL f o r a p e r i o d o f f i v e m o n t h s e a c h y e a r
(May t h r o u g h S e p t e m b e r ) a n d a v e r a g e d 5 . 4 f e e t higher than
t h e predam l e v e l .
The r e s p o n d e n t s , J . 0 . and E t h e l B l a s d e l , f i r s t b e g a n
o p e r a t i n g t h e f a r m l a n d i n q u e s t i o n i n 1928 a s t e n a n t s . They
p u r c h a s e d t h e a r e a i n v o l v e d a t t h r e e d i f f e r e n t times. The
first purchase was made in January 1942, the second in
December 1 9 4 5 , a n d t h e t h i r d i n 1 9 5 7 .
The B l a s d e l f a r m i s l o c a t e d o n e and o n e - h a l f miles
north of Flathead Lake, one-half mile from the Flathead
River, and o n e - f o u r t h m i l e from a s l o u g h t h a t i s c o n n e c t ed
t o t h e Flathead River. The f a r m is surrounded on t h r e e
s i d e s by w a t e r - - t o t h e n o r t h and t o t h e e a s t by t h e F l a t h e a d
R i v e r , a n d t o t h e s o u t h by F l a t h e a d L a k e . The s o u t h b o u n d
F l a t h e a d R i v e r makes a l a r g e t u r n a b o v e t h e B l a s d e l f a r m a n d
t u r n s e a s t and p a r a l l e l t o t h e n o r t h e r n b o r d e r o f t h e farm.
The r i v e r t h e n t u r n s s o u t h , and r u n s p a r a l l e l t o t h e e a s t e r n
b o r d e r of t h e farm. T h i s e n t i r e a r e a of t h e r i v e r remains
a t t h e same l e v e l a s F l a t h e a d Lake. Therefore, the Blasdel
farm is surrounded by water that now averages 5.4 feet
h i g h e r t h a n t h e l e v e l o f t h e predam y e a r s .
P r i o r t o t h e c o n s t r u c t i o n o f K e r r Dam, and i n a n t i -
c i p a t i o n of problems t h a t might a r i s e c o n c e r n i n g t h e w a t er
t a b l e r i s e c a u s e d by t h e dam, t h e U n i t e d S t a t e s G e o l o g i c a l
S u r v e y (USGS) began a s t u d y i n 1928 e n t i t l e d , " E f f e c t Upon
Ground Water L e v e l s Of Proposed S u r f a c e Water Storage In
F l a t h e a d L a k e , Montana." T h i s r e p o r t i s known a s t h e "Cady
report" and was issued by the U S G S in 1940. References will
be made to this report herein as it is one of the base
reports for the findings of fact and conclusions of law
reached by the trial judge.
The Cady report predicted that the high water would
slowly seep through the fine soils of the Blasdel farm and
that it would take a number of years before the water table
levels would reach the predicted level of 4.2 feet higher
than the predam years. Contained in the Cady report were
studies made from forty observation wells dug by the U S G S
commencing in 1928. These wells were in the vicinity of the
Blasdel farm, and the recorded information was used to
gather base line data on water tables for the Kerr Dam
proposal.
Testimony and documentary evidence introduced at
trial indicate the Blasdels first complained of damage to
their land in 1941. Again in 1948 complaints were made and,
as a result of complaints in 1957, a letter which was
introduced at trial from Montana Power's land agent to
Montana Power's attorney in Kalispell, Montana, noted: "If
the proof develops strong enough, we may have to change our
mind about not acknowledging any liability." On December 1,
1960, the first complaint in this matter was filed.
In all, five complaints have been filed in this
action. The first complaint was filed on December 1, 1960,
and noted that the Blasdels were "deprived . . . of
unrestricted use for more than five years last past." This
complaint also noted that the water flooded and remained on
the lands in 1959 and 1960. The second complaint (the first
amended complaint) was filed on December 31, 1965, and was
similar to the first complaint except that it specified that
134 acres had been completely destroyed and 126 acres
partially destroyed. The third (second amended) complaint
was filed on August 9, 1967, and was similar to the second
complaint. The fourth (third amended) complaint was filed
on June 25, 1971. For the first time it listed the specific
date of injury, "1959," and alleged that 104 acres of land
were completely destroyed and 121 acres were 75% destroyed.
The complaint again referred to the continuous flooding in
1959-1960, and for the first time spoke of new damage in
1959-1960 and "a permanent taking." The final and fifth
(fourth amended) complaint is similar to the fourth
complaint filed except that larger amounts of damages were
requested. The difference between the first and last
complaints is largely a matter of damages claimed and
semantics. The first complaint asked for $50,000 in damages
and referred to flood waters remaining on the farm in
1959-1960. The last complaint asked for $142,847.89, plus
interest, in damages and referred to the damage becoming
permanent in 1959 and 1960.
The District Court made extensive findings of fact,
forty-eight in number, and eight conclusions of law. In
finding of fact no. 37, the court found that the post-dam
water table at the Blasdel property rose 4.2 feet. Three
feet of this was due to the Flathead Lake and 1.2 feet was
due to increased precipitation. Montana Power claims the
entire increase, if any, was due to increased precipitation.
Testimony indicates that the water table fluctuated
until 1960. Although Blasdels first complained of damage in
1941, there were no problems during dry years such as 1955.
Consequently, the court found the problems caused by the
gradually increasing water table were temporary before 1959-
1960. In 1959-1960, the water table stabilized, and the
problem became permanent.
The higher water table damaged the Blasdels in a
number of ways. First, sloughs that were small or
nonexistent in the past have significantly increased in
size. As the sloughs increase in size, the amount of arable
land decreases, the remaining fields assume irregular
shapes, and it becomes more difficult to move farm
machinery. Second, the salt and sodium content of the
topsoil has increased dramatically. This soil, called
"tuffitt," is very unproductive, very expensive to treat,
and can affect adjacent land. Crop yields in the affected
areas have declined from 33% to 100%. As a result, one of
the two families that had farmed this land was forced to
leave in 1960 to seek other employment. Third, in 1956 a
new spring developed and began flowing across the Blasdel
farm, saturating even more land.
Five issues are presented to this Court for review:
1. Is the plaintiffsf action barred by statute of
limitations?
2. Is the plaintiffs' action barred by prescriptive
easement?
3. Are the District Court's findings supported by
substantial evidence?
4. Did the District Court err in admitting certain
of the plaintiffs' exhibits?
5. Did the District Court err in allowing certain
costs to the plaintiffs?
I. STATUTE OF LIMITATIONS
Appellant, Montana Power Company, claims that the
respondents first complained of the rising water table in
1941, that the cause of action started running in 1941, and
that the statute of limitations, therefore, expired long
before this suit was filed on December 1, 1960.
Appellant plead in its answer to the fourth amended
complaint filed on April 27, 1973, as an affirmative
defense, the three-year statute of limitations on actions
"upon an obligation or liability, not founded on an
instrument in writing, other than a contract, account or
promise" (section 93-2605 (3), R.C .M. 1947, now section 27-
2-202, MCA); the two-year statute of limitions "for injury
to or for waste or trespass on real or personal property"
(section 93-2607(2), R.C.M. 1947, now section 27-2-303,
MCA); and the five-year statute for all actions not other-
wise covered (section 93-2613, R.C.M. 1947, now section
27-2-215, MCA) . Later, after the respondents admitted that
the appellant had invaded their land, the appellant filed a
motion for summary judgment based on the defense of pre-
scriptive easement.
The appellant cites a number of cases indicating that
the cause of action started running when the damage first
accrued. Heckaman v. Northern Pac. Ry. Co. (1933), 93 Mont.
363, 20 P.2d 258 (cause of action accrued when a railroad
embankment caused flooding, not when built); Ackerman v.
Port of Seattle (Wash. 1958), 329 P.2d 210 (action accrued
when flights started, not when airport was built); United
States v. Dickinson (4th Cir. 1946), 152 F.2d 865, aff'd.,
331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (action
accrued when flooding occurred, not when the dam was built);
Castro v. United States (Ct. C1. 1974), 500 F.2d 436
(statute of limitation did not run until damages so
manifested themselves that a final account may be struck).
The appellant concludes that at least sixty acres of the
land flooded in the 1940s, and, consequently, the statute of
limitations (whether two, three or five years) expired long
before 1960. It further argues that this is true even if
the flooding was intermittent, citing Barnes v. United
States (Ct. C1. 1976), 538 F.2d 865. In the instant case,
the damage was temporary pr ior to 1959-1960 and permanent
after 1959-1960. Therefore, if anything, the above-cited
cases actually support the respondents' position that the
cause of action did not start running until 1959-1960.
The only water table case cited by appellant is
Korgel v. United States (8th Cir. 1980), 619 F.2d 16. In
Korqel large amounts of diverted water ran off an airbase
and raised the water table in 1969 until it flooded the
plaintiffs' land. However, since the plaintiffs waited
until 1976 to file suit, the court found the action was
barred by applicable two-year statute of limitations
provision. In Korgel, the plaintiffs apparently waited
until five years after the water table stabilized to file
suit. Thus, Korgel is not on point.
At a11 times in the District Court the Montana Power
Company denied any damage. Therefore, it did not attempt to
prove a date of permanent injury other than to allege that
if the cause ripened, if ever it did, it did so in 1941 and
because the action here was not filed until 1960, the
statute barred respondents' action. Throughout its proof,
and to the day of oral argument of this appeal, appellant
denieu that the water table rose and denied that damage, if
any, was due to the lake. Therefore, we find few facts on
appellant's side to sustain its alternative claims of the
statute of limitation and prescription. Indeed, as we will
note later in considering the evidence produced here, the
appellant offered no proof of how much the water table rose
on the Blasdel farm due to the rise in the lake or when it
rose.
The District Court made a final finding of fact that
respondents ". . . could not with reasonable certainty
ascertain permanent damage to any substantial portion of the
[respondents'] land until the growing season 1959-1960."
This finding is also stated as part of the first conclusion
of law: "[Substantial damage to the respondents' land] . . .
could not be reasonably ascertained until the growing season
1959-1960." On that basis, the court concluded: "Plaintiffs
filed their complaint within the statute of limitations
pertaining to a permanent taking." In so ruling, the court
did not answer the issue of which statute of limitations is
applicable in an inverse condemnation case of invasion by
underground seep. To solve this issue we must begin with a
case of this Court, Hauser v. Toston Irr. Dist. (1977), 172
kont. 530, 565 P.2d 632.
In Kauser, this Court held that a rising water table
is a "taking" or permanent invasion of land which is action-
able. However, we have not previously addressed the issue
of when that cause of action accrues. Paraphrasing Brigham
Young when qe )arrived in Utah, "This is the time and the
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case." Eickinson -v. B d - t e d - St-akes (1947), 331 U.S. 745, 67
S.Ct. 1382, 91 L.Ed. 1789, is helpful:
"Property is taken in the constitutional
sense when inroads are made upon an owner's
use of it to an extent that, as between
private parties, a servitude has been
acquired either by agreement or in course of
time . The Fifth Amendment expresses a
principle of fairness and not a technical
rule of procedure enshrining old or new
niceties regarding 'causes of action1--when
they are born, whether they proliferate, and
when they die. We are not now called upon to
decide whether in a situation like this a
landowner might be allowed to bring suit as
soon as inundation threatens. Assuming that
such an action would be sustained, it is not
a good enough reason why he must sue then or
have, from that moment, the statute of
limitations run against him. If suit must be
brought, lest he jeopardize his rights, as
soon as his land is invaded, other
contingencies would be running against him--
for instance, the uncertainty of the damage
and the risk of res judicata against
recovering later for damage as yet uncertain.
The source of the entire claim--the overflow
due to rises in the level of the river--is
not a single event; it is continuous. And as
there is nothing in reason, so there is
nothing in legal doctrine, to preclude the
law from meeting such a process by postponing
suit until the situation becomes stabilized.
An owner of land flooded by the [defendant]
would not unnaturally postpone bringing a
suit against the [defendant] for the flooding
until the consequences of inundation have so
manifested themselves that a final account
may be struck." 331 U.S. at 748-749, 67
S.Ct. at 1385, 91 L.Ed. at 1794.
In the instant case, as in Dickinson, Montana Power
could have admitted liability years earlier and settled the
claim. Instead, it denied liability. The Blasdels, who
waited to sue until damages stabilized and became permanent
should not be penalized. Thus, we hold that the damages
stabilized in 1959-1960, the cause of action accrued at that
time, and this action was - barred by the statute of
not
limitations.
It should also be noted that even though the
complaint was amended four times, the statute of limitations
was tolled when the first complaint was filed. Rule 15(c),
M.R.Civ.P., provides that "whenever the claim .. . asserted
in the amended pleadings rose out of the conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original pleadings, the amendment relates back
to the date of the original pleadings."
Further, when a new theory of liability is based on
the same facts as those brought to the attention of the
opposite party by a previous complaint, no prejudice is
worked by allowing the amendment. Rierson v. State (1980),
- Mont. -, 614 P.2d 1020, 37 St.Rep. 627; cf., Vincent
v. Edwards (1979), - Mont. -, 601 P.2d 1184, 36 St.Rep.
1886. In the instant case, the basic facts were all
presented in the first complaint. Consequently, we hold
that the amendments relate back to the original complaint.
11. PRESCRIPTIVE EASEMENT
Is the plaintiffs' action barred by prescriptive
easement?
The party asserting a prescriptive easement must show
(1) open, (2) notorious, (3) exclusive, (4) adverse, (5)
continuous, and (6) uninterrupted use of an easement claimed
for the full statutory period. Taylor v. Petranek (1977),
173 Mont. 433, 437, 568 P.2d 120, 122. Occupancy for a
five-year period must also be shown. Sections 70-19-404 and
70-19-405, MCA.
Montant Power put all its eggs in one basket labeled
"a denial of proximate cause." Here, appellant did not
prove "open and notorious" occupation of the Blasdel land
for any period of time; it did not prove the date when it
first "occupied" the Blasdel land; it did not prove a date
when the lake influence became dominant; and it has
consistently denied occupation of the land. Upon this
record, the appellant failed to prove facts necessary to
establish the elements of prescription.
We should also note that no intention to occupy the
land has been shown. Montana Power has never claimed any
right, title or interest in the Blasdel property. Intention
is a central element of (1) prescriptive easements and (2)
adverse possession. ,Consequently, appellant has failed to
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prove either claim. SeeIbr~amme e b s o n (1883). 4 Mont.
M
560, 2 P. 298; Blackfoot Land Development Co. v. Burks
(1921), 60 Mont. 544, 199 P. 685; Stetson v. Youngquist
(1926), 76 Mont. 600, 248 P. 196; Magelssen v. Atwell
(1969), 152 Mont. 409, 451 P.2d 103; Brown v. Cartwright
(1973), 163 Mont. 139, 515 P.2d 684. See also, Rude v.
Marshall (1917), 54 Mont. 27, 166 P. 298; Brannon v. Lewis
and Clark County (1964), 143 Mont. 200, 387 P.2d 706. We
hold there was no prescriptive easement.
111. DISTRICT COURT'S FINDINGS
Are the District Court's findings supported by sub-
stantial evidence?
Few cases that have reached this Court have had a
longevity period greater than this case. Factwise it goes
back to the decision of the federal government to build a
dam in the early 1930s and to investigations made by federal
and state agencies even prior to that time to prepare
factual information on the feasibility of Kerr Dam. As
previously noted, construction began in the early 1930s and
ended in 1939, at which time appellant took over the
operation of the dam. The respondents first noted a change
in their land and complained to the appellant in 1941. A
twenty-year period went by before a complaint was finally
filed for the damages to the property.
The files herein are numerous and the exhibits
extensive. The trial court, facing the problem brought
about by the case, bifurcated the the issues. In the first
two-week trial, the court found Montana Power liable for
damages to the Blasdel property. A second two-week trial
established the extent of damages and just compensation.
Montana Power appeals. This Court has had to consider a
transcript of 2,670 pages, court files dating back to the
early 1960s, and numerous exhibits. From all this, it can
be seen that it has been a period of conflict for all
parties involved. It is natural that there is a conflict of
views on the evidence presented to the trial court upon
which it made its decision.
This Court's standard of review is whether the
findings of fact and conclusions of law are supported by
substantial evidence. See, Kearns v. McIntyre Const. Co.
(1977), 173 Mont. 239, 567 P.2d 433. The evidence must be
reviewed in a light most favorable to the prevailing party
in the District Court. Johnson v. Johnson (1977), 172 Mont.
94, 560 P.2d 1331. Rule 52(a), M.R.Civ.P., provides:
"Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the
witnesses. "
Appellant argues that there is no credible evidence
to support the trial court's finding that the water table on
the respondents' land had risen about 4.2 feet from 1938 to
the present time. The holding of the trial court is as
follows:
"As compared to the water table on
plaintiffs' land prior to 1938, the 1959-1960
water table was about 4.2 feet higher. Of
this higher water table, about 1.3 feet was
due to precipitation factors, and 3 feet due
to the operation of the Kerr Dam. Of the
precipitation factors a substantial portion
of the same was the result of the operation
of Kerr Dam and higher water tables."
During the 1930s, the USGS had Dr. Cady investigate
the feasibility of Kerr Dam and the effect that the higher
lake water level would have on ground water levels. The
Cady report noted:
"If the annual stage of the lake is raised
through regulation from 2,884 feet to 2,890
feet, the average annual stage of a we11
2,500 feet from the lake or the river will be
raised from about 2,887 feet to about 2,893
feet. It indicates likewise that at other
points in the interior of the area the water
ground levels will rise from about the same
amount that the average lake level is raised
by regulation."
The appellant argues that the trial court erroneously
relied heavily upon the respondents' expert, Dr. Robert
Curry, a University of Montana geologist, who did not even
see the respondents' farm until 1971. In addition,
appellant contends that Dr. Curry relied upon a "faulty"
1938 study by the USGS known as the Cady report. Appellant
further argues that in his report Dr. Cady assumed that the
Flathead Lake would be full twelve months out of the year
when it actually was full only four months of the year.
Therefore, Cady's predictions are irresponsible, and Dr.
Curry's opinions, based upon the Cady report, were totally
inaccurate.
Respondents, in replying to appellant's argument,
note that the Cady report of 1941 was based on a presumed
average lake elevation of 2,890 FASL, which is the 1.941-1949
average lake level. Thus, as predicted, the water table
rose to a point of 2,892.
In addition, Dr. Curry in his study relied upon
eleven observation wells near the respondents' farm. The
eleven wells were monitored on a monthly basis from 1928 to
1976 and showed an average increase of 4.2 feet in the
ground water level. An independent United States Department
of Agriculture report issued in 1969 confirms this
information. Further, a March 1960 report by the Montana
Power hydrologist noted: "In future years the effect of the
lake regulation will become increasingly noticeable and
eventually the preregulation water table will rise by an
estimated 3-5 feet as a consequence of the regulation." The
appellant's expert hydrologist, Keith Anderson, on
examination testified concerning the water table: "There
certainly has been a rise in the water table, not only under
his property, but practically under the entire area." With
such a record before the trial court, we cannot say that it
erred in finding that the water table had risen 4.2 feet.
As a part of this issue, we have before us the
question of whether the rise in the water table was due to
the operation of Kerr Dam or, as argued by appellant, due to
precipitation. Both parties presented expert testimony.
Dr. Curry testified for respondents, and Keith Anderson
testified for the appellant. The following facts appear
undisputed: (1) Montana Power Company controlled the level
of Flathead Lake; (2) the average level of the Flathead Lake
rose 5.4 feet in 1959 and stabilized at an elevation of
2,890 feet; (3) for twenty-one miles upstream, to a point
known as Foys Bend, the Flathead River is at the same level
as Flathead lake; (4) the lake and the river "surround the
Blasdel property"; (5) the Wiley Slough (one-fourth of a
mile northwest of the Blasdel farm) is connected to the
backwaters of the Flathead River; (6) the lake is the outlet
of the ground waters such that raising the lake raises the
ground water tables; (7) a number of old river channels cut
across the lower valley, including the area of the Blasdel
farm; and (8) the soils in the lower valley area are fine
grain, glacial deposits such that ground water movement is
very slow. The experts did not agree on two issues: (1)
whether the ground tables in the interior area, more than a
half mile from the reaches of the lake or river, would be
influenced by the higher lake levels; and (2) whether the
Wiley Slough influences the water tables at the Blasdel
property one-quarter of a mile away.
The trial court had considerable expert testimony
before it. Some of this testimony is conflicting and much
can be interpreted either way. However, we can find no
error with the basic findings of the trial court. It
obviously accepted the testimony of respondents ' pr incipal
witness, Curry, and rejected the testimony of appellant's
witness, Anderson. The trial judge was entitled to accept
one over the other in arriving at his ultimate decision.
While there is a dispute as to whether the river and the
lake (more than one-half mile away) and the Wiley Slough
(one-fourth mile away) affect the water table on
respondents' property, the inland water table was indeed
affected by the high water on the river, lake, and slough.
The appellant's entire defense on the water table
issue seemed to be directed to the fact that 1941 through
1947 were wet years. It introduced testimony and charts
showing that historically 1900 to 1917 were wet years, 1917
to 1941 were dry, and 1941 through 1970 were wet. Therefore,
appellant argues that the rise in the water table was due
entirely to increased precipitation. Credible testimony
contradicting appellant's theory was accepted by the trial
court. The court found: (1) unlike the 1950s, there was no
water in the Grange Hall Slough during 1915-1920; (2) a new
spring developed at 2893 FASL on the Blasdel farm in 1956;
(3) maps and aerial photographs show far more surface water
on the property in 1956 than was on the property in 1928;
(4) there were no salt problems in the area in 1928; and (5)
the water table dropped very little in dry years and rose
dramatically in the 1950s. We find substantial credible
evidence to support the court's findings in this matter.
IV. PLAINTIFFS' E X H I B I T S
Did the trial court err in admitting certain of
plaintiffs' exhibits? This objection is to surveys of the
Blasdel farm, twenty-four photographs taken in 1970, 1971
and 1972 by respondents' attorney, and aerial photographs of
the Blasdel farm taken in 1961, 1972 and 1974.
Plaintiffs' Exhibit P150 is the original survey of
the Blasdel farm. Exhibit PI54 shows various tracts in
different colors and was introduced to show the degrees of
soil damage. The colored tracts showed: area in red, 100%
loss--no longer planted as of 1959; area in orange, 2/3 crop
loss, poor production due to salt; area in yellow, 1/3 crop
loss, spotty areas of salt damage; and area in brown, no
claim, pasture and other areas. The appellant objected to
this exhibit on the grounds that it was a self-serving
statement by Blasdel and had such a contaminating effect
that it constituted error.
The record indicates that respondents offered ample
foundation for the conclusions illustrated in the accepted
exhibits. Blasdel testified that the red areas (100% loss
areas) had been productive in the 1930s and were either
under water or not planted in 1960 due to the wet
conditions. For other areas, he estimated the yield he had
received by measuring how much land had to be harvested to
fill a forty-bushel hopper in his combine. This Court
recognizes a farmer's competence to testify, with proper
foundation, about the effects of water damage to his crop
and land. Watson v. Colusa-Parrot Mining and Smelting Co.
(1905), 31 Mont. 513, 79 P. 14. The color coded chart was
properly admitted.
Should the photographs of the farm taken by
respondents' counsel have been admitted? Appellant objects
to the admission of some twenty-four snapshots taken in
1970, 1972, and 1973 by respondents' counsel. These photos
were used to depict the "same" conditions in 1959, which was
many years earlier. Therefore, according to appellant, they
snould not have been admitted. We find that the photographs
were admitted to show "similar," not the same, conditions as
those found in 1959 and, as such, are admissible. Lamb v.
Page (1969), 153 Mont. 171, 455 P.2d 337; Teesdale v.
Anschutz Drilling Company (1960), 138 Mont. 427, 357 P.2d 4.
Having previously found that the conditions of the property
stabilized in 1959, the sloughs pictured in 1970, 1972 and
1973 were similar to the sloughs in 1959; thus, we find no
error in admitting the photos.
Next the appellant objects to the aerial photographs
of the farm, arguing that the aerial photographs of the
Blasdel farm taken in 1961 were improperly admitted because
this action had been filed in 1960, one year before and,
therefore, the conditions after filing the suit were not at
issue and the photos should not have been admitted. We find
no merit to this argument due to the fact that damages
stabilized in 1959-1960. The later photos objected to by
appellant were representative of the 1959-1960 conditions
and properly admitted.
The objection raised by appellant as to the aerial
photographs taken in 1972 and 1974 is that they were
irrelevant and "highly confusing and prejudicial." In
addition, the appellant alleges that "since the action was
filed in 1960, the only pertinent dates had to be prior to
that time." We do not agree with appellant's position.
Having established 1959 as the year of stabilization, it was
necessary to have information both before and after 1959.
These aerial photos helped to indicate the conditions on the
farm not only in 1961 but 1974. They were properly admitted
to indicate that after 1959 the conditions remained
approximately the same for over fourteen years.
V. LITIGATION EXPENSES
Did the trial court err in allowing litigation
expenses to plaintiffs under section 70-30-306, MCA? We
first note that the trial court held a one-day trial on
litigation expenses at which the parties submitted
documentary evidence in support of their fees in this
matter. The statute here involved is section 70-30-306,
MCA, which provides:
"Necessary expenses of litiqation defined.
(1) Necessary expenses of litigation as
authorized by 70-30-305 mean reasonable and
necessary attorney fees, expert witness fees,
exhibit costs, and court costs. (2) Reason-
able and necessary attorney fees are the
customary hourly rates for an attorney's
services in the county in which the trial is
held. Reasonable and necessary attorney fees
shall be computed on an hourly basis and may
not be computed on the basis of any contin-
gent fee contract entered into after July 1,
1977. (3) Reasonable and necessary expert
witness fees may not exclude the customary
rate for the services of a witness of such
expertise in the county in which trial is
held. "
Appellant first charges that it should not be charged
with "faulty work," alleging that the first three complaints
were faulty work and should not be considered by the trial
court. We note that no such finding was made by the trial
court and that the court, in settling attorney fees, is
entitled to award a reasonable and necessary number of
attorney hours worked by the various attorneys.
Second, the appellant objects to what it calls hours
spent "merely for attorney education." Appellant makes no
reference to which hours are referred to. Counsel's time
with consultants examining scientific information was
necessary and reasonable, as found by the trial court, and
we can find no error.
Third, appellant notes there was a contingency fee
contract signed by respondents on April 7, 1972, and
reaffirmed in 1979. Appellant claims that under State By
And Through Dept. of Hwys. v. Rogers (1979), - Mont. -,
602 P.2d 560, 36 St.Rep. 1758, a contingency fee contract
entered into prior to July 1, 1977, is controlling. We are
puzzled by this claim that the trial court should have been
held to the contingency fee contract. Here, the award of
attorney fees was $77,277. As we view the record, a
contingency fee contract based on the above-noted contracts
would have totaled $100,000. In any event, under section
70-30-306(2), MCA, and our holding in State, By and Through
State Hwy. Com'n v. Marsh (1978), 175 Mont. 460, 575 P.2d
38, a fee award solely based on a contingency fee contract
would be error. The court had ample information and
authority to award the fees as above noted, and we affirm
the same.
Fourth, appellant objects to the trial court's award
of $23,482.54 for "costs of litigation." This amount
included sums for various "experts" which were never called
as witnesses, and as such, argues appellant, payment was not
authorized under section 70-30-306, MCA. We find that the
trial court in its findings considered the expert costs
carefully and set them forth. In reviewing the appellant's
objections we find no reference in the above objection as to
what amounts were not related. We have long held that we
will not consider errors on appeal unless specifically set
forth. See, Schilling v. Curran (1904), 30 Mont. 370, 76 P.
998. Further, it is not necessary that an expert be called
at trial for his expense to be recoverable under section
70-30-306, MCA. Rogers, 602 P.2d at 562. We therefore find
no merit to this final objection on the expert costs.
The judgment is affirmed.
W e concur:
Judge, sitting in place of Mr.
Justice Frank B. Morrison, Jr.
Honorable Gordon R. Bennett,
District Judge, sitting in
place of Mr. Justice John C.
Sheehy