No. 89-035
IN THE SIJPREME COURT OF THE STATE OF MONTANA
1989
GRAVELEY RANCH,
Plaintiff and Appellant,
-vs-
THOMAS SCHERPING and ANITA SCHERPING,
Defendants and Respondents.
APPEAL FROM: District Co,urt of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, J.udge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles A. Graveley, Helena, Montana
For Respondent:
G. Curtis Drake and Glen L. Drake; Keller, Reynolds,
Drake, Sternhagen & Johnson, Helena, Montana.
Submitted on Briefs: July 7, 1989
Decided: November 17, 1989
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
Plaintiff appeals from an order of the District Court of
the First Judicial District, Lewis and Clark County, granting
summary judgment in favor of the defendants, the Scherpings.
The issue on appeal is whether summary judgment was properly
granted based on the running of the statute of limitations.
We reverse the District Court's order and remand this case
for trial.
On October 29, 1987, the Graveley Ranch filed a lawsuit
seeking damages for the death of 27 cows, 11 calves, the
expectant offspring of those cows, and other miscellaneous
expenses incurred as a result of defendants' negligence. The
complaint establishes that the plaintiff holds a grazing
permit for 177 head of cattle on lands adjacent to defen-
dants' property. On September 30, 1984, defendants' resi-
dence burned to the ground, leaving lead batteries inside the
foundation walls exposed with no means of protection from
plaintiff's cattle which were pastured in the area during the
summer of 1985. During that summer, plaintiff contends that
he noticed some of his cattle "were looking very bad and were
losing weight." Plaintiff traced these symptoms and result-
ing deaths to the exposed lead batteries, alleging that:
. . . (plaintiff) caused some of those animals to
be tested and learned that several cows had died
from lead poisoning. On November 4, 1985, he
received a letter from the Solid and Hazardous
Waste Bureau of the Montana Department of Health
and Environmental Services that the source of the
lead poisoning had been pinpointed as the founda-
tion of defendants' destroyed home.
Plaintiff contended that 2 7 cows and 11 calves died as a
result of lead poisoning between September 1985 through the
calendar vear 1986.
In the answer, defendants1 alleged as a defense that the
two-year statute of limitations period provided in $5
27-2-207, MCA, had run against the plaintiff prior to the
filing of the action. Defendants moved for summary judgment,
which plaintiff resisted on the ground that the limitation
period did not begin to run until formal confirmation of the
source of the injury was received. Plaintiff pinpointed
November 4, 1985, as the date of formal confirmation when he
allegedly received a letter from the Department of Health and
Environmental Sciences.
The District Court refused to toll the statute of limi-
tations because it concluded that plaintiff had knowledge of
the actual cause of the injury prior to November 4, 1985, as
evidenced by the following letter from plaintiff's counsel to
the defendants dated September 25, 1985:
. . . As a result of your failure to clean up the
property, my brother has suffered the loss of at
least six head of grown cattle and may incur sub-
stantial expense in drawing blood and testing the
same on over 700 head of cattle. The lead poison-
ing has been confirmed by the State Department of
Health, and the source has been identified as the
lead batteries that were left at the uncleaned
scene of the fire. . . .
In its Answer to Interrogatories and Requests for
Admissions on July 14, 1988, plaintiff admitted that the copy
of the September 25 letter was true and correct. We agree
with the District Court that plaintiff's knowledqe of the
cause of inj,ury as of September 25, 1985, precludes a tolling
of the statute of limitations until November 4, 1985 when
formal confirmation was allegedly received.
Plaintiff further contends that the statute of
limitation period should be tolled until the damage was
completed or stabilized. The District Court also rejected
this argument, concluding that once plaintiff had knowledge
and confirmation of the cause of the injury, no f,urther
stabilization was necessary. We conclude that the continuing
nature of the injury in this case tolls the statute, and
remand the case to the District Court.
In reaching this conclusion, we must first determine
the type of injury sustained by the plaintiff. A nuisance
is statutorily defined in Montana as:
Anything which is inj.urious to health, indecent or
offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the
comfortable enjoyment of life or property. . .
Section 27-30-101, MCA. We conclude that the presence of
exposed lead batteries on defendants1 property resulting in a
series of livestock deaths is potentially injurious to health
and sufficiently interfered with plaintiff's use of property
for grazing so as to constitute a nuisance under S
27-30-101, MCA.
Whether or not the two-year statute of limitations can
be tolled in a nuisance case depends upon whether it is a
permanent, temporary, or continuous nuisance. In making such
a determination, this Court has followed the general state-
ment set forth in 39 Am.J.ur., Nuisance, S 141, which is re-
stated in 58 Arn.Jur.2dI Nuisance S 132, pgs. 701-702.
The nature of a nuisance as permanent or temporary,
which, as has been seen, is a question that £re-
quently is difficult to determine, has an important
bearing on the running of the statute of limita-
tions. Where a nuisance is permanent in character,
and its construction and continuance necessarily
result in an injury, all damages are recoverable in
only one action, and the statute commences to run
from the completion of the structure or thing which
constitutes or causes the nuisance. The fact that
the nuisance continues does not make the cause of
action a recurring one. The running of the statute
is not prevented by the fact that the plaintiff
failed to discover that permanent character of the
injury, or its cause, in time to bring an action
for damages.
On the other hand, when the injury is not complete,
so that the damages can be measured in one action
at the time of the creation of the nuisance, but
depends upon its continuance and uncertain opera-
tion of the seasons or of the forces set in motion
by it, the statute will not begin to run until
actual damage has resulted therefrom. Each repeti-
tion of a temporary continuing nuisance gives rise
to a new cause of action, and recovery may be had
for damages accruing within the statutory period
next preceding the commencement of the action. . .
See Walton v. City of Bozeman (1978), 179 Mont. 351, 356, 588
P.2d 518, 521; Nelson v. CC Plywood (l970), 154 Mont. 414,
434, 465 P.2d 314, 324-25.
In Nelson, this Court held that pollution of the plain-
tiffs' groundwater by defendant's dumping of glue waste was a
continuing temporary nuisance justifying a tolling of the
statute of limitations. Although the dumping began in 1960
and plaintiffs did not file their complaint until 1965, this
Court held that the limitation period would be tolled and
that plaintiffs could recover for all damages inc,urredin the
two years preceding the filing date.
In Walton, supra, this Court also found a continuing
nuisance where the City of Bozeman relocated an irrigation
ditch and constructed a storm sewer which caused annual
flooding of plaintiffs' farm crops. This Court held that:
. . .
the damages caused here were a continuinq
nuisance and as such were within the applicable
statute of limitations, because at all times, the
City could have abated the nuisance by taking
curative action. Since the nuisance was so termi--
nable, it cannot be deemed to be a permanent nui-
sance as of the creation date in 1967.
The instant case is similar to Nelson and Walton. In
Nelson, we held that a new cause of action arose each time
the defendants dumped glue waste. Here, although the
plaintiff's injury is traceable to a single nonrecurring
event, the continuing presence of the exposed batteries
created an ongoing hazard potentially injurious to health and
interfering with plaintiff's use of the land for grazing.
This hazardous situation could have been readily abated by
removing the ruptured batteries from the site and cleaning
the foundation walls. Thus, following our statement in
Walton, because the nuisance was terminable through cleaning
of the site, it cannot be deemed to be a permanent nuisance
as of the date of the fire.
Our conclusion that this nuisance is continuing and
temporary is further supported by our decision in Shors v.
Branch (1986), 221 Mont. 390, 720 P.2d 239. In Shors, we
held that the presence of a gate blocking access to a river
constituted a continuing tort in that it could have been
readily abated by removal of the gate. Thus, plaintiffs had.
a cause of action each day the gate obstructed the free use
of their easement and could recover damages for the two years
preceding filing of the action.
The instant case is similar to Shors. Removal of the
gate in Shors could have directly remedied the situation by
affording the plaintiffs the immediate unobstr,ucted use of
their easement. Here, the contaminants from the ruptured
batteries co,uld and should have been cleaned up by the
defendants. An immediate cleaning of the site could have
prevented the death and illness of the plaintiff's cattle.
The nuisance in this case is temporary, because cleaning the
site would have readily abated the hazard.
I n c o n t r a s t t o a temporary, ongoing n u i s a n c e , a perma-
n e n t n . u i s a n c e i s one where t h e s i t u a t i o n h a s " s t a b i l i z e d " and
the permanent damage is "reasonably certain." S e e Haugen
T r u s t v . Warner ( 1 9 8 3 ) , 204 Mont. 508, 665 P.2d 1132, c i t i n g
Blasdel v. Montana Power Co. ( 1 9 8 2 ) , 196 Mont. 417, 640 P.2d
889, U . S. v . D i c k i n s o n ( 1 9 4 7 ) , 331 U.S. 745, 67 S . C t . 1382,
91 L.Ed 1789. I n Haugen T r u s t , t h i s C o u r t h e l d t h a t damage
c a u s e d by s u b d i v i s i o n c o n s t r u c t i o n had n o t " s t a b i l i z e d " a s o f
t h e d a t e of t h e f i r s t flooding because:
The e x t e n t o f t h e damages t o t h e basement v a r i e s
from o c c u r r e n c e t o o c c u r r e n c e , d e p e n d i n g on t h e
l e v e l of t h e water i n t h e basement and t h e
c o n d i t i o n o f t h e basement a t t h e t i m e o f e a c h
flood. . . .
The damage i s n o t y e t p e r m a n e n t . Therefore,
t h e n u i s a n c e i s o f a t e m p o r a r y and c o n t i n u o u s
n a t u r e and g i v e s r i s e t o a s e p a r a t e c a u s e o f a c t i o n
each time it c a u s e s d a m a g ~ .
665 P.2d a t 1135. Upon remand, p l a i n t i f f s i n Haugen - r u s t
T
would b e a l l o w e d t o r e c o v e r damages f o r i n j u r i e s s u f f e r e d two
years prior to t h e d a t e of their complaint, assuming such
damages were p r o v e n a t t r i a l .
In Blasdel plaintiffs filed suit seeking damages for
p r o p e r t y d e s t r o y e d by a r i s i n g g r o u n d w a t e r t a b l e d u e t o t h e
raising of Flathead Lake by t h e c o n s t r u c t i o n o f K e r r Dam.
Plaintiffs first complained of adverse effects to their
property i n 1941. They d i d n o t f i l e t h e i r c o m p l a i n t u n t i l
1960. The t r i a l c o u r t found t h a t t h e w a t e r t a b l e f l u c t u a t e d
from y e a r t o y e a r c a u s i n g i n t e r m i t t e n t damage t h a t d i d n o t
become permanent until 1959-1960 when the water table
stabilized. The c o u r t h e l d t h a t t h e s t a t u t e d i d n o t b e g i n t o
run u n t i l t h a t t i m e . W e affirmed.
The i n s t a n t c a s e c a n b e d i s t i n q u i s h e d from B l a s d e l and
Haugen
- - Trust.
- Here, t h e damage was permanent in that six
The instant case can be distinguished from Blasdel and
Haugen Trust. Here, the damage was permanent in that six
cows had died before September 25, 1985, and the remaining
damage was reasonably ascertainable through testing of the
remainder of the herd. Thus, the statute is not tolled until
the death or illness of the last cow poisoned. However, the
presence of the lead batteries does constitute a nuisance
which could have been abated at any time by the defendants.
Thus, the nuisance is continuing until it is abated; the
statute does not begin to run until the batteries are removed
and the toxic residue cleaned from the site of the fire. If
defendants have made no effort to remove the hazardous
materials from the fire site, a new cause of action may arise
each time a cow becomes ill or dies as a result of lead
poisoning. Once the nuisance is removed, the statute of
limitations will bar any action commenced later than two
years after abatement of the nuisance, or discovery of the
cause of the injury whichever occurs later.
In either case, the plaintiff's alleged cause and
possible recovery will be limited to damages for injuries to
his herd, subject to any mitigating circumstances, suffered
within two years prior to the date of filing its complaint.
The District Court's order granting summary judgment for
defendants is reversed and the case is remanded for a trial
on the merits.
Reversed and remanded for further proceedings consistent
with this opinion.
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Justice
We Concur:
Chief Justice
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'
Justices 7
Justice L. C. Gulbrandson dissenting.
I respectfully dissent.
In my opinion, the majority has ignored recent
decisions of this Court involving statute of limitations and
has enlarged the discovery exception by relying upon a theory
of "nuisance" under S 27-30-101, MCA, a theory which w a s
never argued to the District Court or to this Court.
This Court, in Holman v. Hanson (Mont. 1989), 773 P.2d
1200, 1203, 46 St.Rep. 734, 738, stated:
[Wlhether there has been a "discovery" of
facts sufficient to start the running of
the statute of limitations is a question
of law.
The majority has correctly concurred with the District Court
that the plaintiff had knowledge of the cause of injury as of
September 25, 1985, but then ignores this Court's comments in
Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 121, 713
P.2d 992, 995,
[Tlhere is no Montana precedent for
utilizing discovery doctrine to toll the
statute of limitations beyond discovery
of the cause of an injury.
The appellant has, in effect, argued that the statute
of limitations in this case should be tolled until his
damages had stabilized and stated in his reply brief:
Plaintiff had no idea how many more, if
any, additional cattle would die as a
result of the lead poisoning. His
damages had, in no way, stabalized [sicl
and, his cattle continued to die for the
remainder of 1985 and all of 1986.
This argument was rejected by this Court in E.W. v.
D.C.H. (Mont. 1988), 754 P . 2 d 817, 820-21, 4 5 St.Rep. ?78,
783:
Finally, it is argued that the
running of the statutory period should be
tolled because EW's injuries were not
complete until after the statute of
limitations had run. However, "it is not
necessary to know the total extent of
damages that an act causes to begin the
running of the statute of limitations."
. . . Few are the injuries that could not
someday develop additional consequences.
To adopt the theory advocated by EW would
again postpone the statutory period
indefinitely.
Section 27-1-203, MCA, provides
that "damages may be awarded ... for
detriment ... certain to result in the
future." In Frisnegger v. Gibson (1979),
183 Mont. 57, 598 P.2d 574, we construed
S 27-1-203 consistent with the Montana
practice of instructing juries that
damages need only be reasonably certain.
183 Mont. at 71, 598 P.2d at 582. Under
the Frisnegger rationale, EW could have
presented evidence of, and received
damages for, future harm, if any.
(Citations omitted.)
In my view, the appellant's stabilization argument is
without merit in view of the statement in the September 25,
1985, letter of demand that:
As a result of your failure to
clean up the property, my brother has
suffered the loss of at least six head of
grown cattle and may incur substantial
expense in drawing blood and testing the
same on over 700 head of cattle.
and the further argument of appellant set forth above that
cattle "continued to die for the remainder of 1985 and all of
The majority has apparently agreed that the
stabilization argument is without merit by stating in the
majority opinion:
Here, the damage was permanent in that
six cows had died before September 25,
1985, and the remaining damage was
reasonably ascertainable through testing
of the remainder of the herd.
I concur that the remaining damage was reasonably
ascertainable and would, therefore, affirm the ruling of the
District Court.
Chief Justice J. A. Turnage:
I concur in the dissent of Justice Gulbrandson.
c
Chief Justice