*1
KEMPH,
TRAVIS BELUE
and AARON
Plaintiffs
MONTANA,
v. THE STATE OF
Appellants,
Mussel
Respondents.
County,
shell
Defendants
No. 81-501.
July
Submitted
1982.
Aug.
Decided
See §72. *2 plaintiffs argued, Belue, Hardin, T. for Clarence appellants. Roundup, argued, Ask, Pratt, & for defen-
Ask Thomas respondents. dants and opinion
MR. HARRISON of the JUSTICE delivered Court. brought by plaintiffs alleging negligence
An action was maintaining The a nuisance. District summary judgment for the defendants with court entered respect appeal. plaintiffs to such claims and the is whether the facts The sole issue before Court developed summary judgment show that a on motion burning pile slag risk of forest the foreseeable constituted range fire. summary grant made its to
The District Court decision deposi- judgment ten on the basis some to defendants it. tions, submitted to Those documents affidavits and other Republic depositions Coal and affidavits establish that Company, Mine, four miles is located Klein Coal a/k/a/ Township Roundup, Montana, on Section south operated Range on North, M.P.M. A coal mine was East when closed. until 1908-1909 (rocks, During period, slag mine coal, waste and other products) piled in certain areas on the section. One slag piles approximately high, feet vegetation, adjacent ridge covered with and located on a during Highway On the of December afternoon slag pile, windstorm, a a severe fire started near this spread five miles four and one-half to aross defendants’ plaintiffs’ land and onto the land. pile slag burning
The trial court found that the started prior to 1950. Red embers were then visible to motorists driving along highway. years disap- In later the embers peared, may but fumes fire indicated have moved deep pile. However, inside the after the mine closed coal hazard, was not considered a and no were fires reported. highway through ever When the state built portion slag apparently of the the fire was dead.
Plaintiffs sued the owners for failure to construct protection burning slag. a fire break other trial premises, depositions court viewed the considered and affi- *3 granted summary davits, judg- defendants motions slag pile ment. The court noted that the had never caused a area, in that that flames were never visible on the sur- face, and that the had never been considered a nui- sance or hazard. The court then concluded that the defen- leaving dant’s in conduct untouched until 1979 prudent, reasonable, was did not create an unreasona- ble hazard.
Plaintiffs contend that other conclusions could be reasona- bly may drawn from the same facts: Fire hazards with- exist storage flames; out and the of combustible material on one’s property reasonably expected can be to start a fire. 56(c), provides summary judgment M.R.Civ.P.,
Rule
that
proper
pleadings, depositions,
if: “. . . the
in-
answers to
terrogatories,
together
file,
and admissions on
with
affi-
any,
any
davits, if
show that there is no
moving party
material fact and that the
is entitled to a
judgment as a matter of law.” The
must
movant
make
showing
any
that excludes
real doubt as to the existence of
any genuine
Harland v.
material fact.
Anderson
issue of
(1976),
theory negligence great jury in of use detail. that case a property. negligent in use of found the defendant his jury overturned the verdict and found as a mat- This Court negligent.. Mang ter of law that the defendant not supra, arose in the same district and under the same opinion judge as heard case and relied on in he our Mang following quotes deciding issue. The are from Mang apply to this which case: by
“Basically use of its reasonableness of the necessarily owner must be determined the fact and ap- particular of as it circumstances each case arises provision principles plication appropriate of law and of reciprocal justice. Further, dictates of mutual any predicated given negligence act, back can be on before duty sought individ- act must be and found a that complaining, duty ual observance of which would have injury. . . averted the negligence
“An
is not what
additional test of actionable
prevented
particular
might
accident,
what
rea-
discharge
sonably prudent
men would have done
they existed at the
the circumstances as
their duties under
Montana
Milasevich v. Fox Western
time of
accident.
Corp.,
. . .
“It has been well said any resulting danger injury con- his direct foresee negligent. intervening risk force is not duct or from an *4 Ry. Chicago, Taylor Co., Milwaukee, Paul & Pac. St. Long, 759; 365, 371, Lencioni Mont. 384 P.2d 455. << “ weighing striking is, in likeli- the Tn this balance—that injury harm,
hood of the and the value of seriousness of the judges to be law interest sacrificed—the the actor’s con- light appeared in duct situation as would the reasonable man his shoes at the time of the or act complained actually happened, omission of. Not what reasonably prudent person what would then have fore- likely key happen, seen as is the to the of rea- ’ * * * sonableness “Harper supra, page James, Torts, The Law of at prevailing obligation state The view. of defen- dants turns on whether: “ offending foreseeably ‘. . . the conduct involved unrea- sonably great risk harmof to the interests of someone other obligation than the . . [T]he action . to refrain from . . . particular only conduct is owed to those who are foreseeably endangered by only the conduct and with re- spect to those risks and hazards whose likelihood made the unreasonably dangerous. Duty, conduct words, other scope negligent measured of the risk which conduct ” foreseeably 437-38, entails.’ 153 Mont. 458 P.2d at principles Mang, supra, From of law forth in set we constituting can find no issues of material facts negligence part on of the defendants and find no error granting summary judgment in the trial court’s on the negligence. plaintiffs argued addition, 50-63-103, that section applied MCA, to the facts of this case. Logging Court, in a recent DNRC v. Fork Clark
Company St.Rep. Mont., interpreted considered the above statute and the same to apply only setting leaving fire, intentional purpose of which is to burn excess forest material. That is clearly here, not the situation we hold the statute not applicable. next issue is whether the was a thereby making nuisance, the defendants liable.
456 “Anything 26-30-101, MCA,
Section defines “nuisance” as: injurious health, which is to indecent to or offensive property senses, free . . or an obstruction to the use of undisputed Here the that ex- facts show the old many, many years public along Highway isted in full for 83 showing previously view. no There is that had ever showing in the is no that it caused fires area and there was neighboring property hazard to considered a owners. Dewey (1928), This Lumber Co. court held Faucett referring 250, 259, 646, 266 P. 648 to the statutes private covering public foregoing nuisances, “[t]he and crystallizations effect, are, in statutes of the common general law which and are consistent with rules long recognized by the courts.” been “ per occupa- generally act, ‘A se nuisance is defined as an tion, structure, all times or which is a nuisance at any regardless circumstances, or under of location sur- any roundings. are: or omission or use Other definitions act property thing health, itself of tranquillity, or which is of hurtful decency outrages morals, of the
or or which community; so or main- that which cannot be conducted lawfully permitted exist; or to tained as to be carried on private persons and, to an act or use as related injurious continuing legally nature, of a to and to offensive property, Nuisances, Am.Jur., health Sec. both.’ (1957), v. Kolokotrones P.289.” McCollum 438, 443-444, 782-83. any many years open were
Here, flames not visible for burning For in the area beneath the surface. occurred burning years prior underground fire, was ten to the 1979 any have been less less obvious observer and there to pile. public complaints concerning no to There- officials slag genuine fore, that the of material fact we find no 'pile nuisance. evidence is a was or was not substantial
Whether there
Company
Flansberg v. Montana Power
matter of law.
Court, considered
summary judgment
granting
and held:
of a motion for
any negligent
“If
omission
there is no evidence
act or
(Citation
properly granted.
defendant,
the
omitted.)
a non-suit
is
equally applicable
to a motion for
rule
summary judgment
here.
under
circumstances disclosed
Mont,
at
“When the no ma record discloses issue as party opposing fact, terial is on the motion burden summary judgment present evidence of material and (Brown raising genuine substantial nature issue of fact *6 386) Thornton, 150, 432 in this granting the failure to sustain that burden authorizes the of summary judgment. 58, 460 Mont. P.2d at 266. presented
“Whether not there is substantial evidence by plaintiff question is a of law for the court not a question jury.” of fact Mont. P.2d at party
This Court has held of number cases that seeking summary judgment has the initial of show- burden ing remaining, absence of issue of material fact passes opposition then the burden to to raise such ma- Capp See, Homes, terial of fact. DeWinter Inc. (1973), 507 P.2d 1061.
For the reasons stated the of decision the District Court is affirmed. DALY, SHEA,
MR. JUSTICES SHEEHY and MORRI- SON, concur. dissenting: HASWELL,
MR. CHIEF JUSTICE my jury question regarding I In dissent. view a exists damage plaintiffs’ whether the caused to was fore- land Accordingly, seeable. there are of material issues precluding summary 56(c), judgment. fact Rule M.R.Civ.P. majority Mang relies on Eliasson support granting the District Court’s summary judgment However, case is to defendants. dis- Mang. tinguishable on its facts Mang the defendants’ was no indication In there mid-September summer-fallowing ground could have strong plaintiffs’ damage, In wind. absent a caused employed by geologist of Mundie, the State case, Ben by Department that, Lands, affidavit stated Montana presently potential danger exists “an extreme gob long continues as the coal will continue to exist so briefing papers of concurred with the to burn.” Mundie also Lands that a of Abandoned Mine Assistant Director igniting range “high probability fire” future and forest extremely dangerous to trav- “fire is that the existed and surrounding using Highway ranchers, and the local elers communities.” expert opinion my raised view, of Mundie evidence jury of whether de- decided of fact to be damage reasonably plaintiffs’ foreseen could have
fendants pile. smoldering gob on the merits. I reverse for a trial would foregoing dissent WEBER, in the concurs MR. JUSTICE HASWELL. JUSTICE of CHIEF