*1
105
CURRAN,
D. MICHAEL
Aрpellant,
Plaintiff
OF THE
DEPARTMENT OF HIGHWAYS
OF MONTANA,
STATE
Respondent
Cross-Appellant.
Defendant,
No. 92-388.
Submitted on Briefs December
1992.
April
Decided
1993.
St.Rep.
450.
See C.J.S. *2 Sternhagen, Sternhagen and William G. Appellant: For Plaintiff Firm, Law Helena. Garrison, Respondent: Stephen F. Nick A.
For Defendant and Beck, Services, Rotering Legal Department R. of Trans- & James Helena. portation, Opinion of the Court.
JUSTICE HARRISON delivered the (Curran) appeals an order of the Appellant D. Michael Curran County, denying Court, Clark his First Judicial District Lewis and against dismissing complaint and request for Department Highways (Department). Department of Montana cross-appeals. We affirm. Flat on Highway
Montana 200 crosses Crеek Curran’s County Corner. In 1985 the Lewis and Clark northeast Bowmans highway property, across Curran’s Department reconstructed the it with removing replacing over Flat Creek and large bridge wooden crossing required stream culverts. Construction of new twin Engineers permit, which in turn re- Army Corps States United Proteс- United States Environmental the concurrence quired Service, and Fish Wildlife Agency, the United States and Fish, To Wildlife and Parks. obtain Department Montana original plans its revised approval agencies, of these their standards. structure conform to and built the twin-culvert snow, by melting 1986, during new February a flood caused overflowed, cover- by ice The creek blocked and debris. culverts were land. The grazing acres of Curran’s ing approximately seventeen after gravel and land and left debris overflow caused erosion and feed from the had to move cattle the flood subsided. Curran ordinary to use the land and thus was unable affected area purposes. alleged Curran complaint, April
In his filed in ordinary replacing and skill duty care had use bridge duty by existing ignoring and it breached its engineering flow and standards when installed twin culverts Causing too were small handle flood waters. the result- flood, ing charged, trespass by Department. Curran was a alleged, Curran the new installation created a situation future, likely creating that was to recur unpredictably damages nuisance and future re- could not be by legal remedy. dressed original complaint prayed past future mandatory injunction requiring replace for a the Department to crossing crossing
the stream with a adequate design size and would prevent flooding property, prevent future of his future tres- passes, and abate the nuisance. 1990, however,
In November complaint, amended his de- leting request for damages leaving only for a mandatory injunction. July moved in deny 1991 to the injunction, and in June the District Department’s motion and dismissed Curran’s complaint preju- with dice. Curran appealed.
We have restated the on appeal issues as follows: *3 mandatory injunction 1. Whether a an remedy is in appropriate this case.
2. Whether the twin-culvert stream crossing сreated a nuisance 27-30-101, under § MCA.
As our holding on the first is dispositive, issue we do not address second issue. may
A district an injunction appears court issue that when the commission or continuance of an act will produce “irreparable injury” party seeking such relief. The granting injunction discretionаry, is and we will sustain it unless an abuse of discretion is shown. Madison Fork Lodge Ranch v. L & B Timber Pole Products (1980), 292, 302, 900, 189 Mont. 615 P.2d 906. The same standard of review applies to a District of an injunction. Court’s denial Smith v. County 292, 679 Ravalli Board Health P.2d 1249. Here, we conclude that the Court did not abuse its discretion denying in injunction. an for Depаrtment argues
The
not an appropri
remedy
ate
plain, adequate,
speedy remedy
when “a
at law” is
available,
and that such a
is available in the form of inverse
chiefly
condemnation.
The
relies
on our
in
decision
390,
(1984), 212
In
Riddock v.
Helena
Mont.
pipeline obtaining on his land without easement an inverse compensation just action for for the value of condemnation taking. easement on date of compensation at Riddock had for for an 687 P.2d asked for an taking compensation, оf land without or in the alternative injunction requiring city pipeline. to remove its court Riddock, city summary judgment grounds for the in the land person successor interest to the who had owned when city right compensation. had no The former pipeline, built through right compensation inverse landowner had a it; therefore, condemnation, an though pursue did not remedy for Riddock. was not an available theory that to allow a land Our rule in Riddock based on the to defeat a injunctive permit owner relief would landowner entity’s 1388. Webelieve public power of eminent domain. at policy alternative is to ensure public a matter better landowner, Curran, by requiring compensation damaged for a like any purchase property public purpose. it takes See the state to for Hurley 52 S.Ct. 76 L.Ed. v.Kincaid 285 U.S. (where threat federally-sponsored project flood control land, him for plaintiff’s compensate ened to floodthe failure to if compensation for an such “affords basis law”). at may be an action procured allege did not points plaintiff in Riddock the Curran out argues that the case should be distin- trespass nuisance or asking he is guished. argues, form, Dеpart- of the nuisance caused but an abatement open left opinion cites a 1909 which we ment’s stream He power company to injunction ordering possibility Billings & Eastern might its dam be warranted. Wilhite remove Co. 101 P. Montana Power land, plaintiff’s dam flooded Wilhite the defendant’s *4 lower, re- thе to requested compelling defendant an order plaintiff to move, way damage to further its in such a as avoid or alter dam power company to rebuild trial property. his court ordered dam, for a modified order remanded the case its but we repair nuisance, merely cоmpany to abate required power “entirely too broad injunction was commenting the trial court’s drastic,” necessary “there is no evidence that to rebuild, or repair, remove dam.” We concluded: will, cases, entry interlocutory
This order proper Court orders, restraining mandatory prohibitory, either may require; making but we find in such this record warrant an order in this case.
Here, too, find Department no warrant for an order compelling show,however, crossing. to reconstruct stream If can Department’s crossing land, Flat caused Creek to inundate his may compensаtion then be entitled to for physical of his property. We held in Knight 232, Missoula 1276, may property “a owner recover in an inverse condemnation action where actual physical damage proxi- mately by caused to his property public improvement.” course,
If loss can compensated, be an irrepa- not injury. voluntarily by rable He amending waived his com- plaint mandatory so to limit injunction, to but his irreparable injury. waiver does not create showing Without irreparable injury, mandatory injunction. Curran is not entitled to a
As Curran has not shown that his dam- irreparably aged, or thаt inverse an adequate remedy, condemnation would not be only remedy concluded that his is an action for condemnation or damages. raising a cross-appeal, filed an issue not ad-
dressed juris- the District Court: whether the has District Court replace diction to order the Depаrtment to the stream The Department argues that if the even District Court had ordered crossing, Department rebuild the stream could a permit Army not have done so without Corps from United States Act). (the Engineers, pursuant to 33 U.S.C. Clean Water Department argues, because the District Court has no authоrity Corps Engineers permit, to order to issue such a enjoined bridge could find itself rebuild prohibited by government. the federal deny injunc-
Because we affirm the District Court’s decision tion, permit requirements we need address this issue. Federal only would be a consideration if the District Court had decided to grant injunction.
Affirmed. *5 HUNT, TURNAGE, McDONOUGH
CHIEF JUSTICE JUSTICES concur. WEBER dissenting. JUSTICE GRAY majority totally fails respectfully dissent. The to address case, is and the pivotal nuisance which issue
availability it setting; doing, in a nuisance in so of ignores altogether the Decision and Order ofthe District Court which result, my majority is us for As a it is view that the before review. only incorrеct, opinion substantially is irrelevant to the case not below, I analysis us. Based on the set forth would reverse before proceedings. and remand further for matter, I As a threshold note that the District Court’s decision was being prior issued factual determinations made the case. Deny Depаrtment’s Injunc- While that Motion to decision 12(b)(6), M.R.Civ.P, tion, ruling on a Rule motion to rather than dismiss, allegations it clear the court Curran’s as true accepted is do of its decision. I will the same. purposes general, the District Court determined that nuisance injunction against nuisance allegations and the fact that both arose out of “would be well taken but for” statutory crossing pursuant to Department’s construction of a stream that, authority. determined Cur- Specifically, the court first true, “likely’ complained of allegations the flood waters ran’s 27-30-101(1),MCA.The court could a nuisance under § be considered (2) provides statute went on to note that subsection of that authority express of statute nothing done or maintained under the analysis agree with the District Court’s can deemed a nuisance. be point. to this 60-2-201, MCA, ex-
The court then determined § to construct the stream pressly authorized the bаsis, available because On it concluded that was law, nuisance, as matter could not constitute waters flood 27-30-101(2), the nuisance Having MCA. thus removed pursuant § case, its determination the District Court based question from Riddock, involving not available a nuisance. stages latter Court erred in these my thаt the District
It is view MCA, 60-2-201, authorized expressly analysis. It is true that statute, crossing. Nothing in that to construct and maintain flood however, to create authorizes citizen, of a Montana the circumstance private property waters on by Curran to a nuisance. The asserted constitute District Court’s stаtutory analysis contrary principles to established and recent case law. repeatedly governmental entity
This Court has held that a private entitled to no more deference than a citizen in matters of creating Knight City a nuisance. Missoula 252 Mont. 247, 827 1270, 1279; City Walton v. Bozeman 518, 522; Lennon v. Butte cases, P. 1102-3. In expressly each of those *6 rejected governmental entity’s argument 27-30-101(2), that § MCA, prevented a asserting claimant from against nuisance claim Knight, it. In stated we that: governmental
[WJhen a
entity in its method of administration of...
governmental powers]
[its
creates a nuisance it is not exercising the
governmental
doing
function but is
something
by
forbidden
law.
Knight,
Here, no expressly statute authorized the actions of the Depart- — ment to constitute a namely, nuisance the creation and maintenance of flood private property. Therefore, waters on erroneously District Court 27-30-101(2), MCA, сoncluded that pre- finding vented a of nuisance as a matter of law.
Once the case, nuisance claim is reinserted in this assuming with the District Court that Curran can establish a con tinuing nuisance, availability injunction of an can properly be addressed. This Court consistently injunction has held that an is a proper remedy to continuing Boyer abate a Karagacin nuisance. v. 26, 32, 1173, 1177-8;Floyd Mont. Butte 823, 827; Billings Wilhite v. & Eastern Montana Power Co. 101 P. 171. nuisance, In cases of inadequate are because injured party is forced to bring multiplicity of suits in successive injury. actions for the recurring Floyd, 827; See 412 P.2d at Hart v. (Md. Wagner 1944), 40 A.2d
I will not at length majority’s address inverse condemna- theory. note, however, availability remedy that the of such a entirely speculative addition, on the limited record In before us. above, case, noted Riddock was itself an inverse condemnation not a nuisance injunction case. We determined that an was not an alterna- tive or cumulative to the inverse condemnation claim. interesting party appears In this to note that neither regard, — — availability an consistently propriety at least to assert argues “public purpose” inverse condemnation claim. Curran flooding is served of his land. its answer to complaint, asserted as an affirmative defense solely any flooding attributable to a combination of warm rain; Deny Injunction, it support of its Motion to weather prior land via affidavit that the creek had flooded Curran’s averred only the instаllation of the culverts. The fair characterization “taking” contends that no oc- position Thus, parties run counter to the positions curred. the record both necessary an inverse condemnation existence of the elements and, therefore, availability to the of such an action to Curran action remedy. aas majority’s with the characterization of Wilhite. We disagree also was available under the
concluded Wilhite
are,
case,
of that
circumstances that
circumstances
stated,
at
stated that the record
“so similar to
bar.” We
ordinary
maintaining a nuisance to the
simple
case of
showed
Wilhite,
majority’s
at
statement
plaintiff’s damage.
101 P.
simply
possibility
Wilhite
open”
that we “left
incorrect;
an
to abate a nuisance
expressly approved
domain, remanding only
entity
of eminent
against
power
with
injunction it had
scoрe
court to narrow the
of the
for the district
*7
erroneously
Wilhite,
Finally,
majority
The threshold whether, true, may to establish a nuisance be able gations as discuss, majority does not and the District Court сoncluded as the Upon of law. nuisance as a matter establish a he cannot the ultimate issue of whether determination revolves is available. determination that the flood would reverse the District Court’s cannot constitute a nuisance as a matter of law and remand
waters proceedings. for further joins foregoing in the dissent.
JUSTICE TRIEWEILER