*1 INC., FORMICOVE, Appellant, BUR- Plaintiff NORTHERN, INC., LINGTON Defendant Respondent. No. 83-143. Sept. 21,
Submitted
1983.
Decided Dec.
Charles respondent. BENNETT, Judge, District R. Honorable GORDON delivered
sitting for MR. CHIEF JUSTICE HASWELL opinion of the Court. Inc., summary judg- a
Plaintiff, Formicove, appеals Northern, (BN), by Dis- Inc. granted Burlington ment District, County. Cascade Eighth Judicial trict Court of the situated between a embankment BN has railroad Two River. culverts property and the Missouri Formicove’s of and June May of 1980 run under the embankment. waters. by surface was flooded 1982 Formicove’s basemеnt its culverts to maintain claims BN’s failure Formicove basement. Formicove’s to flood caused the surface waters Co. (1921), Valley Ry. v. Gallatin LeMunyon Relying upon Sec- held that P.915, Court the District 60 Mont. statutory duty on 69-14-240, MCA, impose tion does waters and of surface regard with obstruction BN summary granted judgment. BN LeMunyon case here is whether dispositive issue no MCA, imposes correctly held that Section regard to obstruction with statutory duty a railroad on LeMunyon mani- holding surface We waters. believe the festly be incorrect must therefore overruled.
Relying on definitions of surface waters and watercourses Ry. Fordham Northern Pacific down in laid below) (set facts 76 P. forth and the presented, in sur- question the Court found the water was opposed face water in a running watercourse. Reciting the common law rule to the effect surface water is mankind,” enemy “the of all against each owner is which legally land, protect entitled to his the Court concluded the rule was not altered what then Re- was Section Codes, Act, vised a codification of a 1903 now 69- 74-240(1), provided: MCA. That Section then
“It shall the duty every corporation, be company, person or operating any railroad, thereof, owning or branch state, in any this and of corporation, company, person any state, constructing this within three months completion after the any through county the same state, to cause to bе constructed maintained suitable *3 ditches and along drains each side of the roadbed of such or road to construct openings through culverts or such watercourses, drains, ditches or roadbed to or connect with so as to afford sufficient carry outlet to drain and off along water such such draining railroad whenever water has by been necessary obstructed or rendered railroad; construction of such provided of the that none drains or ditches herein to required referred shall be to be by any constructed of the persons or herein corporations described, named or except required when to remove and drain off water upon accumulated to property adjacent or upon the right whose natural channel or outlet way been destroyed or impaired by the such embankmеnt of railway so . .” (Emphasis constructed as aforesaid . . added.)
The Court held: “ . . supra . That portion of Section included within exception or proviso, which mentions ‘natural channel’ 192 body of the sec-
or ‘outlet’ refers back to the first or main corporations fixing requirements tion, of railroad watercourses, ‘ditches,’ ditches, drains, and and means expressed, ‘drains,’ or as therein and hence ‘watercourses’ provisions no relief to the of this section likewise afford Mont, respondent.” P. at 199 at 917. years. sixty-two for more
This view has been followed thаn legislature be can determined Where the intention of plain meaning statute, courts used in a from the may words any interpre- go apply other means of not further and Tongue Coop. River Elec. v. Mont. Power tation. (Mont. 1981), St.Rep. 511,] P.2d [195 Mont. construing simply statute, to ascertain and оur is therein. what in terms or substance contained declare may what has or omit We what has been omitted insert been inserted. MCA. required statutory proviso language before and drains con
construction and maintenance of ditches carry off nect with “ditches or drains watercourses” proviso impounded by a railroad embankment. general will and ditches was a limitation on rule: Drains required only whose off accumulated water be to drain destroyed impaired “natural channel or outlet” has been equated LeMunyon opinion the embankmеnt. The proviso to the words or outlet” “natural channel principal in the words “ditches or drains or watercourses” apparently that the word clause concluded proviso in the be included “watercourses” was intended to contemplate surface and that therefore the statute did only water, watercourses. severely limiting the obvi overlooks construction
This principal purpose statute, which was ous *4 applied The statute to railroads. the common rule as it law speaks only “drains,” “ditches,” “watercourses,” but carry “openings,” off “culverts,” to drain and and “outlets” “ draining watеr been of such water . . . whenever removing draining obstructed” and off water accumu- upon Clearly lated in- property. nonrailroad the statute was kind, tended to impounded deal with water of any without regard to the nice distinction made between surface water Mont, Fordhаm, and a in at P. watercourse at 1043: “ ... If the flood water main becomes severed current, or return, spreads leaves the same never to out ground, over the lower it if becomes surface water. But it body forms a flowing continuous with the water the ordi- channel, nary or if departs presently it from such channel return, to it is to regarded part be as still a of the stream. said, did, While it might be as the commissioner proviso prin- words “natural channel or outlet” refer to the clause, cipal it is possible to comprehend opin- from his ion equated how “ditchеs, he those words to words drains or watercourses” in principal clause. The context is not even the same. The latter words are used to describe places vagrant to which the is to be returned. The former words are used places to describe the from which vagrant water came as a result of the embankment. There no rule statutory ap- construction that would prove of flip-flop. this contextual if by
Even
this literary legerdemain one
words
reads the
“ditches or drains or watercourses” into
sub-
proviso
stitute for the word
“natural channel
outlet” set forth
therein
legislature,
imposed by
the limitation
LeMunyon court decision could not
do so
be sustained. To
we
required
would be
give
meaning
the words “water-
courses”
ignore
and to
the words ditches and
In con-
drains.
structing a statute
are required
we
to consider it as a whоle
and,
if possible, give meaning
every
word contained
ex
1-2-101, MCA;
therein. Section
State
rel. Cashmore
Anderson
doing
fined in the tortured LeMunyon aсcepted, is it not struction rendered would application support proviso of that limited conclusion statute to watercourses. perform legislature must idle We assume that the does interpretation gives 1-3-223, ef acts. An that Section MCA. always preferred fect is оne that makes a statute void Sup surplusage. treats a as mere American Linen statute (Mont. 1980), ply Dept. 131, 37 v. Revenue 617 P.2d of St.Rep. LeMunyon construction reduced making nothing surplusage, a more than statute mere it enemy common rule. codification of the Viewing written, rather than as artifi the statute as cially reconstructed, we conclusion reach unavoidable existing legislature law and that intended enemy applied em as to railroad set aside common rule adopted maxim, “[o]ne must so of bankments favor infringe upon rights rights of an use his own аs 1-3-205, is reinforced Our other.” Section by interpretations MCA. conclusion by comparable that
of a statute Missouri (Cox (1903), Co. 174 v. & St. R. Hannibal J. state’s courts Murphy Fran 588, 854, St. Louis-San 74 v. Mo. S.W. and 637) (1920), Mo.App. 682, S.W. 205 226 cisco R. (Chicago Supreme & Court confirmed the United States (1915), Tranberger 678, 67, U.S. 35 S.Ct. Alton R. Co. 238 v. 1204). L.Ed. 69-14-240(1), MCA, is the as Section Section same LeMunyоn by construed Codes, statute Revised except proviso a into court, clause for the conversion separate during sentence codification. apparent 69-14-240, MCA, mis- was
It is then that Section LeMunyon. construed the doctrine
BN
that under
nevertheless contends
holding.
сontrary
prior
must follow this
stare decisis we
which reflects
stare
is a fundamental doctrine
While
decisis
equal
stability, predictability
treat
our concerns for
require
mani-
we follow a
ment,
that
stare decisis does not
v.
State
Fischl
(1933),
festly
94 Mont.
wrong decision.
Court
Fourth Judicial
1057;
State
District
20 P.2d
Dist.
(1965),
also,
Jepson
Reversed and remanded. HARRISON,
MR. SHEA, JUSTICES SHEEHY and The RAPKOCH, Honorable PETER L. Judge, sitting District for MR. JUSTICE MORRISON concur.
MR. JUSTICE WEBER dissenting.
I dissent LeMunyon majority the holding that and case law 1921 opinion consistent with that misconstrue Sec- 69-4-240, tion MCA. in Nothing statutory language the nor the legislative history legisla- indicates that the Montana ture intended to hold higher duty railroads to a of care in managing duty imposed surface water the on other than property owners.
“An uphill property duty owner owes no to his downhill neighbor to prevent vagrant of еncroachment such or neighbor’s. surface waters property from his onto his Co., LeMunyon Ry v. Valley Gallatin . 517, 60 Mont. 199 LeMunyon P. 915. This rule has and been reviewed af- firmed from following time to time in the cases: Montana Sylvester Co., v. Anaconda Min. 1067; P. 73 Mont. 236 Johnson, O’Hare v. State Mont.410, 888; 116 153 P.2d Highway Meats, Inc., v. Cоmm’n Biastoch 145 Mont. 400 274. Accordingly, judg- P.2d defendant is entitled to Roope The Com- ment Anaconda as matter of law.” pany 28, 33, 494 P.2d 924.
In reaching legisla- the “unavoidable conclusion that ture intended to aside existing law and set enemy embankments,” applied common rule as to LeMunyon the majority years prece- overrules 62 of and 196 prede- contrary. consistently
dent, which found to the 69-14-240, in At was enacted cessor to Section MCA legislature intervening years in has our no time amended the to include surface waters. statute majority its discov- cites Missouri casе law to bolster ery legislative regarding The 1879 of surface water. intent challenged of is identical version Missouri’s statute part language See of MCA. the first (1879) legislature § added Rev.St.Mo. 810 the Missouri critical element scored below: company per- every corporation, or
“It shall be the of owning operating any branch thereof son or railroad or person company any corporation, con- state, of and structing any af- state, three months railroad in this within any county through completion in this of the same ter the state, suitable and mаintained to cause to be constructed through right way openings roadbed across and along railroad, drains each such suitable ditches and railroad, to connect with side of such of the roadbed courses, sufficient ditches, so as to afford drains including along water, wаter, off outlet to drain surface draining of such water been such railroad whenever necessary the construction obstructed or rendered (1909). See § railroad; . .” such . Rev.St.Mo. (1978). § 389.660 Rev.St.Mo. precedential value
This amendment nullifies *7 opinion. authority majority in the and 1920 cases cited as (1903), Joseph 174 Mo. R. Co. Cox and St. v. Hannibal authority majority posi- for the 854 is limited S.W. legislative by approved the 1907 Missouri, Cox tion. In was had its statute. Montana water” to addition “surface legislative opportunity Missouri, to but chose not as same history portion was which is a of our exercise it. That by majority. considered imposes statutory reinterpretation a majority’s new
The duty. defining duty upon that Plaintiff railroad without offending surface water water as here characterized opinion imposes duty majority apparently a rain The water. upon accept рroperty Burlington adjoining Northern specify the railroad owners’ surface water. It does not how they manage is to from ad- these once are diverted waters joining into railroad’s and culverts. The lands ditches Supreme Court of Missouri has that: held “ (and places duty grants upon ‘Thе a no a law permission) upon any railroad no to enter servient land to any enlarge existing ditch, construct or water- drain Smithpeter carrying capacity,’ course to increase its water supra, may Co., v. R. Wabash and a railroad not make an opening dischаrge in its roadbed accumulated surface adjacent proprietor, ditch, water on an no drain when carry away incurring watercourse exists to it without liabil- ity Temple Topeka Atchison, for such action.” & Santa Railway Fe Co. 417 S.W.2d duty A new to drain off or remove accumulated surface wa- adjoining property ters from I has here. be- been created judiciary, obligation legislature, lieve the has like an duty any imposes upon define the limits of it individual or corporate citizens. post application
Last, I am troubled ex facto ma- jority’s holding. summary judgment District Court’s ruling favor of the defendant was a on the law correct based judgment, majority at that time. To reverse that precedent. long-standing overruled cause remanded liability perform duty. for a determination of failure to According rulings Court effect аt time of flooding, remanding did not exist. only majority law, cause to be tried new im- under poses duty upon defendant, a new but the Dis- instructs apply trict Court to law to 1980 facts. given although statute, erroneous,
“The construction to a part before modification, its reversal or of it beсomes a as though much it; written into and the made in only construction will affect contracts made thereafter.” Ry. Montana Horse Co. Products v. Great Northern *8 194, 216, 7 P.2d Mont. to this prior occurred liability flooding The issue of and reversal Court’s reconstruction the statute by today’s ruling. not be affected LeMunyon should changing leave the I would affirm the District Court and legislature. the statute foregoing joins GULBRANDSON
MR. JUSTICE dissent.