I N THE S U P R E b P COURT O F THE STATE O F PONTAhTA
,ylARIAN HAUGEN TRUST and
MARIAN HAUGEN, TRUSTEE,
Plaintiff and Respondent,
MAURICE A . WARNER, J R . , and
MARLENE R. WARNER, husband and w i f e ,
Defendants, Third Party
P l a i n t i f f s and A p p e l l a n t s ,
.
LAWRENCE E WALKER and
DARLENE E . WALKER, husband
and w i f e , JACK HUME a n d
MIDDLE C m E K MEADOWS, I N C . ,
Third Party Defendants
and Respondents.
Appeal from: D i s t r i c t C o u r t of t h e E i c s h t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of G a l l a t i n
H o n o r a b l e W. W. L e s s l e y , Judge p r e s i d i n g .
C o u n s e l of R e c o r d
For A p p e l l a n t s :
Kirwan & B a r r e t t , Bozeman, Montana
B e r g , C o i l , Stokes & T o l l e f s e n , B o z e m a n Montana
For Respondents:
L a n d o e e , B r o w n , P l a n a l p , K o m m e r s & L i n e b e r a e r , B o z e m a n , Montana
For Third P a r t y Respondents:
Moore, R i c e , O ' C o n n e l l & R e f l i n g . Bozeman, Montana
S u b m i t t e d On B r i e f s : A p r i l 2 1 , 1983
Decided: June 30, 1 9 5 3
$ul\j ; 1983
,
Filed:
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
The District Court of the Eighteenth Judicial District
issued an order September 13, 1982, dismissing an amended
third party complaint against Jack Hume and Middle Creek
Meadows. The order also denied third party plaintiffs,
Warners, leave to again amend their amended third party
complaint. Warners now appeal from that order. We reverse
the judgment of the District Court.
Jack Hume and Middle Creeek Meadows, Inc., third party
defendants, are the developers of Middle Creek Meadows
Subdivision in Gallatin County, Montana. The subdivision
includes three ponds constructed by the developers primarily
for aesthetic purposes. Pond three is the only one currently
used for irrigation.
Plaintiff Haugen, defendants and third party plaintiffs,
Warners and third party defendants, Walkers own property in
Middle Creek Meadows Subdivision.
Warners' basement was damaged by flooding in 1978 and
1979. They believed the flooding to be caused by leakage of
water from ponds one and two. In July of 1979, Warners began
to monitor the relationship between the depth of the water in
their sump hole and the depth of the water in the ponds.
After finding a definite correlation, Warners partially
blocked the flow of water into the ponds during the summers
of 1979, 1980 and 1981.
The obstruction of water flow into the ponds allegedly
caused the water remaining to become stagnant. Mosquitoes
and other insects began gathering near the ponds. Haugen's
home is next to one of the ponds. He filed a complaint July
7, 1981, against Warners for creating a nuisance. FJarners
filed an answer October 2, 1981.
In 1982, Walkers asserted a right to the pond water and
claimed that Warners' obstruction of the flow of water into
the ponds deprived them of use of the water. On July 8,
1982, Walkers removed the culvert cap placed by Warners to
obstruct the flow of water to ponds one and two. Warners'
basement again flooded.
On July 9, 1982, Warners filed a third party complaint
against Walkers, seeking a permanent injunction enjoining and
restraining Walkers from interfering with Warners' attempt to
control the flow of waters into the ponds. The third party
complaint alleged further that Walkers have negligently and
recklessly constructed, used and maintained the ponds and
that Walkers' use and maintenance of the ponds have created a
nuisance. Walkers filed a motion to dismiss on July 14,
1982.
A July 19, 1982 District Court order combined the
actions and set the entire cause for trial on the merits on
August 26, 1982.
Warners filed an amended third party complaint August 2,
1982, adding Jack Hume and Middle Creek Meadows, Inc., as
third party defendants. Hume and Middle Creek filed a motion
to dismiss the third party complaint against them on August
23, 1982, alleging that the action was barred by the statute
of limitations. The statute of limitations is two years.
Section 27-2-207, MCA. The complaint was filed in 1982, but
only alleged damages for the years 1978 and 1979.
Immediately prior to the September 2, 1982, hearing on
Hume's and Middle Creek's motion to dismiss, Warners filed,
without leave of court, a second amended third party
complaint alleging damages in 1982. Third party defendants'
motion was granted September 13, 1982, without leave to
amend.
Warners now appeal that order. The trial on the merits
as well as a hearing on a motion for summary judgment have
been vacated and continued pending resolution of this appeal.
The issues presented to this Court by Warners are:
1. Was leave of court necessary to amend the third
party complaint?
third plaintiffs' action barred the
statute of limitations?
Are third plaintiffs entitled punitive
damages?
Leave of court was required before Warners could file a
second amended third party complaint. Rule 15(a),
M.R.Civ.P., states in relevant part:
"Amendments. A party may amend his pleadings once
as a matter of course at any time before a
responsive pleading is served or, if the pleading
is one to which no responsive pleading is permitted
and the action has not been placed upon the trial
calendar, he may so amend it at any time within 20
days after it is served. Otherwise a party may
amend his pleading only by leave of court or by
written consent of the adverse party; and leave
shall be freely given when justice so requires."
This rule does not allow one amendment as a matter of course
per defendant. Rather, it allows one amendment as a matter
of course per pleading. Any other interpretation would
violate the purposes for the rule, to prevent poor pleadings
and to discourage harassment of the defendant. Wright,
Federal Practice and Procedure, Chapter 4, $1480, p. 405.
The original third party complaint was amended once,
prior to any responsive pleadings, to add Jack Hume and
Middle Creek Meadows, Inc., as third party defendants. Leave
of court was required before it could be amended again,
regardless how many of the amendments affected Jack Hume and
Middle Creek Meadows.
However, the trial court judge clearly abused his
discretion when he denied Warners the opportunity to amend
their third party complaint for the second time. Warners
failure to allege damages in 1982 was obviously inadvertent.
Leave of court to amend a complaint in order to correct a
mistake should be freely given when the amendment will not
mislead defendants to their prejudice. Besse v. McHenry
(1931), 89 Mont. 520, 300 P. 199. The amendment presents no
new cause of action, nor does it mislead third party
defendants.
To deny Warners their day in court because of an
inadvertent mistake is tantamount to denying Warners justice.
Refusal to permit an amendment to a complaint which should be
made in furtherance of justice is an abuse of discretion.
State ex rel. Gold Creek Mining Co. v. District Court (1935),
99 Mont. 33, 37, 43 P.2d 249, 250.
Apparently, the trial court judgers reason for denying
leave to amend the complaint was the supposed futility of the
amendment. However, the amendment is not futile because
Warners' action against the third party defendants is not
barred by the statute of limitations. Even without specific
allegations of damages in 1982, Warnersr amended third party
complaint alleges negligence in 1982 - the negligent
maintenance of the reservoir ponds. Whether that negligence
caused any recoverable damages is a question of fact to be
decided at a trial on the merits.
Jack Hume and Middle Creek Meadows, Inc. allege that the
statute of limitations should have begun to run in 1978
because that was when the flooding caused permanent injury.
" ... for permanent injury the statute runs from the time
the injury becomes complete to the land's use and enjoyment."
Nelson v. C & C Plywood Corp. (1970), 154 Mont. 414, 433, 465
P.2d 314, 324.
A permanent injury is one where the situation has
"stabilized" and. the permanent damage is "reasonably
certain". Blasdel v. Montana Power Co. (1982), Mont .
, 640 P.2d 889, 39 St.Rep. 219. The situation in the
instant case has not stabilized. Warners' basement continues
to periodically flood, allegedly whenever the ponds are
allowed to be filled with water from the in-flowing creeks.
The extent of the damages to the basement varies from
occurrence to occurren.cle,depending on the level of the water
in the basement and the condition of the basement at the time
of each flood.
Further, the nuisance is apparently abatable, as
illustrated by the fact that when the water flow from the
creeks was blocked in 1980 and 1981, the basement did not
flood. Allegedly, the developers could have abated the
nuisance themselves through corrective action. That remains
a determination to be made at trial. If the flooding is
terminable, it cannot be deemed a permanent nuisance. See
Harrisonville v. W.S. Dickey Clay Mfg. Co. (1933), 289 U.S.
334, 53 S.Ct 602, 77 L.Ed. 1208, where the Supreme Court held
that where the pollution of a creek was terminable, it could
not be deemed a permanent nuisance from the time the nuisance
was created.
The damage is not yet permanent. Therefore, the
nuisance is of a temporary and continuous character and gives
rise to a separate cause of action each time it causes
damage. 39 Am. Jur., Nuisance, $141, p. 403, and quoted in
Nelson, 154 Mont. at p. 434, 465 P.2d at pp. 324-325.
The applicable statute of limitations is two years.
Section 27-2-207, MCA. The Warners may be able to recover
damages for injuries suffered two years prior to the date of
their original third party complaint, July 9, 1982, if such
damages are proven at trial.
Finally, this Court has no jurisdiction over issue
number three, whether Warners are entitled to punitive
damages from Hume and Middle Creek Meadows. The appeal of
that issue is premature as there has been no trial on actual
damages.
The September 13, 1982, order of the District Court is
reversed and Warners are granted leave to amend their amended
third party complaint. This matter is remanded to the
District Court for trial on the merits, consistent with this
opinion.
We concur:
apn-e,~4Q..u~
Chief Justice!