*1 MATTSON, SLITERS, REBECCA E. NORTH FLATHEAD LAKE YACHT J. MICHAEL CLUB, RAYJ. R.
DOCKSTADER, HABEL, GREG HABEL, BOWD, WILLIAM G. PAUL & MARY RAY & SULLIVAN, HEIN, MAUREEN RANDA J. NEIL R. PETE C. MCALPIN, MCALPIN, WOLL, LOYD FOSTER, II, G.W.INGHAM BENJAMIN W.
LOUDEN, L. HARRY KENNETH WOLL, D. LOUDEN, MICHEL O. STEVEN SPECKERT,
SPECKERT, SUSIE SPECKERT, HECTOR JOHN DOES SPECKERT, 1-500,JANE DOES 1-500,ABC 1-500, CORPORATIONS XYZ PARTNERSHIPS DEF LIMITED 1-500, LIABILITY COMPANIES, 1-500, and all other
parties similarly situated, Appellants Cross-Appellees, Plaintiffs, MONTANA COMPANY, POWER a Montana Corporation, PPL MONTANA,LLC, a Delaware Liability Company, Limited TOUCH AMERICA Corporation, HOLDINGS, INC., a Delaware MONTANAPOWER, LLC, a/k/a NORTHWESTERN Liability
ENERGY, South Dakota Limited Company, and NORTHWESTERN Corporation, a South CORPORATION, Dakota Appellees, Cross-Appellants. Defendants, DANo. 07-0353.
Argued September 24, 2008.
Submitted November
2008.
August
Decided
2009.
JUSTICE NELSON the Opinion delivered of the Court. Lake, Montana, Flathead located in largest northwest is the natural freshwater lake west Mississippi. It long is miles and (at 15 miles wide its broadest points) square and covers 191 miles. Its primary two are upper tributaries Flathead River and the Swan River, which enter from the north and east. The lake drains to the 1930s, Power In the Montana Flathead River. into the lower south (MPC) River on the lower Flathead Kerr Dam constructed Company regulates outlet. The dam of the lake’s natural miles downstream 4.5 power for electrical generates and Lake’s water level Flathead Dam until managed and Kerr operated in Montana. MPC customers Montana, LLC to PPL conveyed it its interest when December (PPLM). has the dam since. operated PPLM owning property real group of landowners In November the upper banks of Lake and the southern on the shores Flathead (Landowners) action in the the instant River commenced Flathead Court, County, on behalf Flathead Eleventh Judicial District and against MPC similarly landowners1 themselves and situated course, certify the Landowners filed motions PPLM.2 In due the motions granted class The District Court lawsuit action. class: following certified the (other and the than Defendants persons
All and entities of the Flathead and Kootenai Tribes Confederated Salish Montana) Reservation, either with property real own County or of Flathead Lake in Flathead frontage the shoreline the Flathead County, Montana, Lake which contains a bank of Montana, or County, River in Flathead both. located MPC PPLM The Landowners claim that manner which erosion, in continuous loss operated have Kerr Dam has resulted shoreline, They contend that damage properties. to their and PPLM’s primarily by are MPC’s erosion and caused full maintaining Lake’s water level at practice year each Flathead elevation) (i.e., the fall storm season. highest into pool permitted at the are properties the Landowners’ response, points PPLM out in the easements, property from owners subject obtained shoreline flood, 1930s, Dam ’40s, ’50s, operator allow the of Kerr drain, with subirrigate, or otherwise affect the Landowners’ Mattson, Sliters, plaintiffs Lake E. North Flathead The named Rebecca Habel, Habel, Bowd, Club, Ray Dockstader, Greg J. R. William G. Yacht J. Michael Sullivan, Hein, Mary Ray McAlpin, McAlpin, J. R. Pete & & Maureen Randa Neil Paul Woll, Benjamin Louden, Harry Woll, Loyd Foster, Ingham II, L. Kenneth C. W. G.W. *4 Louden, Speckert, Speckert, Speckert, Speckert, D. John Does DEF Limited O. Susie Hector Michael Steven 1-500, 1-500, 1-500, Partnerships 1-500, Corporations XYZ Jane Does ABC Liability 1-500, parties similarly Companies and all other situated. Power, Inc., Holdings, Montana The Touch America Landowners also named defendants, LLC, Energy, Corporation as a/k/a and Northwestern Northwestern restructuring (pursuant to a alleging that are successors to MPC these three entities 2002) alleged wrongdoing. and, such, occurred in are liable MPC’s argue, however, The waters Flathead Lake. Landowners scope They
MPC and PPLM acted outside have of these easements. nuisance, trespass, taking assert claims of a and breach of property, the easements. might that the Recognizing pose ‘legal easements barrier” to the claims, parties summary
Landowners’ filed cross-motions for legal judgment ultimately the easements’ effect. The Court District argument rejected operator the Landowners’ that the dam use, invade, 2,893 or their properties affect above an elevation of feet and concluded instead that the easements parcels.” “cover entire The erosion, erosion, court also including ruled that “wave action” is within scope Finally, any duty easements. the court concluded that PPLM has not damage to cause unreasonable to the Landowners’ properties applies only damage unrelated to the use of the easements. appeal Landowners now from the District Court’s order
granting summary judgment defendants, favor all while PPLM cross-appeals from District order certifying Court’s this lawsuit as issues, a class action parties present as to PPLM. The four which we restate as follows:
1. Are the scope by easements restricted in a limiting contour line 2,893 around Flathead Lake at feet above mean sea level? Is2. operator Kerr Dam allowed under the easements to cause properties? erosion the Landowners’ operator 3. Is the of Kerr Dam required not to cause to, damage unreasonable or interfere unreasonably with the of, enjoyment properties? Landowners’ In evaluating certification, Landowners’ motion for class required was District Court allegations to take all their “as true’? below, As detailed we conclude that the easements are not by limiting
restricted Lake; “contour line” around rather, Flathead they parts extend to those properties Landowners’ which are 2,893 “affected” when the lake’s water at level is feet above mean sea level as measured at Kerr Dam. We further conclude that easements include an incidental reasonably cause necessary to the erosion Landowners’ properties. However, we hold that the dam operator is not entitled to cause unreasonable to those interfere unreasonably enjoyment with the of those properties. Finally, issue, with respect cross-appeal hold the District erred taking Court all of the allegations Landowners’
217 part, in and remand reverse accordingly part, affirm in “as trae.” We proceedings. for further
ADDITIONAL BACKGROUND Rocky Mountain Power Commission issued 1930, the Federal In ¶7 MPC) to (RMPC, subsidiary 50-year of a license Company Power River. RMPC the lower Flathead a dam on operate construct and of Kerr Dam MPC in 1938. Construction license to transferred the Depression. the delayed due to Great 1930 but then was commenced in operations finally in and commercial completed dam The was in began Lake are located half of Flathead Kerr Dam and the southern In Reservation. of the Flathead Indian the exterior boundaries
within (four license), MPC and original years expiration before the the 1976 the Flathead Salish and Kootenai Tribes of the Confederated new applications operate for a license competing filed Reservation facilities). (the reservoir, dam, appurtenant the and Project the Kerr 50-year a new eventually a settlement under which They reached jointly, and MPC would to MPC and the Tribes license would issue term, years for first at which operate project and the the hold upon taking project the over the point option the would have Tribes Regulatory Energy to MPC. The Federal specified of a sum payment in joint and issued the license approved Commission the settlement (1985). Co., Power 61,070 The 1985. See Montana 32 F.E.R.C. July ¶ under this license. presently operated dam is Hungry from and releases Flathead Lake fed snowmelt River.3 Prior to upper Dam the Fork of the Flathead Horse South Dam, average an lake’s rose of Kerr water level the construction early due to year mid-April spring from June eight feet each 2,890 sea average peak The elevation was feet above mean runoff. steadily during the summer to dropped The water level then level. following spring. it remain until Under base level where would however, lake to an elevation some Dam rises operations, Kerr maintained average pre-dam peak and is three to four feet above gradually It is over the winter at this level into October. then lowered level, after pre-dam two or three feet above the base an elevation cycle anew. spring begins runoff operator dam and dam licenses authorize the 3Hungry completed in 1953. Horse Dam was 2,883 2,893 feet
regulate Flathead Lake between elevations above (RMPC’s connection, Frank M. Kerr mean sea level. vice time) president general manager at testified before the concerning Federal Power Commission October 1929 RMPC’s develop on Flathead application power Lake and Flathead River. acknowledged good controversy He that there had been “a deal of high as to effect lake” that a great discussion water study deal been subject. Noting had conducted on ‘ho one buy avoided,” pay any damage possibly wants to that can Kerr testified that things result of these that I have has us described indicated to *6 2,893 engineers
as businessmen and as that the elevation is the logical development everyone in the interest of that be Unquestionably land, concerned. this takes some of nothing but importance lake, except at the north end of the the of where delta large the River very Flathead has made a area flat.
Kerr further testified that he had been many
asked the question times as to what effect storage this at 2,893 upon will have lake in general, the shore order in to use expression thought an that I would by be best understood a layman, you I have said people to these that ‘If build will or do your anything on property light your in the of experience as heretofore, of you what elevations the lake have prevailed will in way by no be affected the new conditions.” Army Engineers In MPC and the U.S. Corps of entered into Understanding Memorandum of which specified procedures for the regulation of Flathead Lake control, in the of interests flood needs, recreational and power-production As needs. amended in the provides that, Memorandum conditions permitting, the lake will 2,883 by drawn down to April elevation feet 15 and then raised to 2,890 by elevation feet Memorial Day 2,893 and to elevation feet June 15. The provides Memorandum also that when the lake reaches 2,886 elevation feet in a or major year, moderate flood the dam operator gradually will open spill-gates to maintain free flow and gates will not close the until after danger exceeding of elevation 2,893 passed. feet has The Federal Power Commission subsequently approved these procedures, Co., see Montana Power 35 F.P.C. 250 (1966), Energy and the Regulatory Federal incorporated Commission the Memorandum ofUnderstanding into the jointly 1985 license issued MPC the Tribes. PPLM Kerr reports that Dam has been operated substantially in the same manner since 1938 and in Understanding since 1962. accordance with the Memorandum above, under conditions pre-dam Flathead Lake explained As steadily during dropped early in June and then peak reached its at full level, lake is maintained to its whereas now the summer base feet) (elevation early question There is no 2,893 into October. pool fact, anticipated In RMPC properties. shoreline practice impacts Federal Power In 1937 letter September as much. 2,893 at feet for Commission, holding stated that the lake RMPC usually pre- under prevailed than those which longer time intervals instance, could, for “affect’Takeborderlands and dam conditions would beyond project of lands conventional “waterlogging cause boundary.” contend, however, maintaining lake at The Landowners’ cause) (and caused will continue to
full into October has pool they particular, assert damage properties. to their substantial upper Lake Flathead River of Flathead shoreline Kerr operation such “continuously being eroded” and “undercut” 4 They Dam, footprint” an of the lake. resulting “ever-widening during storms, that storms explain that erosion is more severe waves fall, presence higher-than-normal in the and that the stronger property shoreline erosion and during produces fall storms substantial Thus, their claim that most damage. the Landowners artificially at or fall when the lake is held place takes 2,893 response, near feet. In PPLM characterizes the Landowners’ exaggeration.” the extent of shoreline erosion “an contentions about PPLM, “the Lake is and is According majority equilibrium at *7 by only Kerr five operation not affected the of Dam.”PPLM claims that by the any great regulation are affected extent PPLM’s of Moreover, the operation water PPLM maintains that its lake’s level. liable, it is scope dam is within the of the flood easements and that not therefore, damages. for the Landowners’ claimed noted, began securing from As RMPC and MPC these easements ¶14 1930s, late property process shoreline owners in the continued number Notably, purchased significant into the 1940s and ’50s. MPC the stated nothing $1.00 of the easements for more than consideration Although in of the assorted printed language contract. extent, they and its give contracts varies to some all MPC 4 consultants, According all of has occurred on to one of Landowners’ erosion shores, bedrock, except composed is the mouth those and most severe near lake’s River, upper there 40 to 50 feet. of the Flathead with annual land losses 220
successors perpetual right flooding, subirrigating, and easement for
draining, affecting otherwise with the of Flathead Lake or waters any part and its all or tributaries hereinabove described are, by regulation lands will or be affected which by construction, control Flathead of the waters of Lake hydroelectric of a operation power maintenance dam and in development lake, River dam Flathead below said designed regulate to control and the waters of Flathead Lake at elevations, varying exceeding a maximum water controlled feet, datum, level of 2893 U.S.G.S. at said dam. parties viability agree against the Landowners’ claims depends large
MPC and PPLM in part interpretation on the foregoing language.
STANDARDS OF REVIEW We de ruling review novo a district on court’s a motion for summary judgment, applying the criteria in set forth M. R. Civ. P. 56. Club, LLC, 12,
Arnold v.
284,
Yellowstone Mountain
MT
¶
Summary
Mont.
judgment
DISCUSSION An easement is a nonpossessory interest in land-a right which person one use has to the land specific of another for a or a purpose imposed servitude as a upon Wall, burden the land. Blazer 2008 MT 145, 24, 173, 183 ¶ Mont. P.3d 84. An easement cannot be created except by writing, an instrument by operation law, by or Blazer, prescription. Here, by ¶ easements were created written instruments. are express grants by owners, Most property shoreline although some are conveying reservations MPC when own its properties. shoreline Where nature, an easement is specific the breadth and scope of
the easement are determined actual terms of the deed. In other words, if the grant specific terms, reservation is in its it is decisive
221 122, 46, 305 MT Hardy, v. ¶ of the limits of easement. Guthrie Jr., The 467; Ely, & James W. 367, 28 accord Jon W. Bruce Mont. P.3d (‘When (2009) 8:2, 8-4 in Land Law Easements and Licenses § of easement, terminology an such language employed to create precise is contrast, usage.”). grant where the governs the extent of terms, beyond must look general is in its courts reservation determining scope in breadth language deed reasonably necessary and servitude, only as is which need be such created. the easement was purpose convenient for the for which 47; §70-17-106, Here, the Guthrie, see MCA. Landowners also ¶ contend, specific, they as agree, the easements are PPLM and we ‘flooding, specifically usage the dam as operator’s define certain draining, affecting” parts or otherwise subirrigating, properties. Landowners’ in granting property of a an interest real writing The construction Baker governed by Mary rules of J. interpretation. contract 18, 338 41, States, Mont.
Revoc. Trust v. Harvest 2007 MT ¶ Cenex 851; 191, 19, Shaw, 2007 MT P.3d accord Wills Cattle Co. ¶ 397; 70-1-513, Mont. 167 P.3d MCA. The construction § Trust, of contract is a of law. Baker Revoc. interpretation question a 19. A effect interpreted give contract must be so to the mutual ¶ parties contracting, as it at the so far intention existed time 28-3-301, as the same is ascertainable and lawful. Section MCA. When parties a writing, contract is reduced to the intention of the is to be writing 28-3-303, from MCA. possible. ascertained alone if Section together whole of a contract is to taken so as to effect to give every if part reasonably practicable, helping interpret each clause 28-3-202, language other. Section MCA. The contract is govern if the interpretation language explicit its is clear and and does absurdity. 28-3-401, an involve Section MCA. Evidence of circumstances made and the matter to under the contract was 28-3-402, 28-2-905(2), which it relates be considered. Sections 70-20-202(2), However, MCA; Trust, 47 & see also Baker Revoc. n. 5. ¶ to, vary, such evidence not admissible to add or contradict the terms §28-2-904,28-2-905(1), 70-20-202(1), MCA; Baker the contract. See Trust, Revoc. ¶ mind, these to the Landowners’ principles With turn
contentions.
Issue 1 by limiting contour scope Are the easements restricted 2,893 line around Flathead Lake at above mean sea level? feet *9 noted, give As the easement contracts MPC its successors the ¶21 flood, subirrigate, drain, to or otherwise affect with of right the waters all of any part Flathead Lake and its tributaries or the Landowners’ are properties may by regulation which or be affected the and control by Dam, designed Flathead Lake Kerr “which dam of is to control regulate elevations, varying the waters of Flathead Lake at not exceeding feet, a maximum water of 2893 controlled level U.S.G.S. datum, at parties dispute significance said dam.” The the of ‘2893 this feet” clause.5 The reason that Landowners because the maximum 2,893 feet, level is as the do specified “controlled” water easements not lying extend to land above this elevation at the time the easements words, other argue were created. In the that is a Landowners there height 2,893 limit or “contour line” at around Flathead Lake feet and the dam operator may that not allow the lake’s waters or to invade properties view, however, affect their above In PPLM’s this elevation. merely feet” design” According ‘2893 “describes the of the dam. to PPLM, parcel.”The each flood easement encumbers “the entire District agreed with PPLM on points. Alternatively, Court both these PPLM argues that dam, even if‘2893 feet” is not a of the still “description” it line; rather, is a contour is a it limitation the lake as level dam, every point measured at the not at the around lake. agree We the with Landowners that feet” the ‘2893 clause limits scope easement,
the of PPLM’s agree but we PPLM it with that does not create a line” flood, “contour around the lake. the Again, right to drain, subirrigate, or properties otherwise affect shoreline extends to are, all any part or of the hereinabove described lands which will or may be the regulation and control the waters affected Dam], Flathead designed [Kerr Lake which dam is to control regulate the elevations, waters of Flathead varying Lake at not exceeding a feet, maximum controlled water level of 2893 datum, U.S.G.S. at said [Emphases added.] dam. Reading together these terms so as to effect give every part, helping other,
each clause
the
interpret
required
we
do
(§ 28-3-202, MCA),
reject
PPLM’s proposition it has a
every
boundless
to flood “the
parcel”
entire
Landowner.
interpretation
easements,
arguing PPLM ignores points
PPLM
out
also
that some of the
do
easement contracts
not refer
‘2893
However,
granting provision
deny
feet”
itself.
PPLM does not
that it is bound to
operate
consistently
the dam
with those contracts which
refer to
do
‘2893 feet.”
superfluous
feet”
as a
by”
treats the ‘2893
clause
“affected
clause and
reflects
whole,
language
interest. Taken as
point of
drain,
flood, subirrigate,
conveyed
right to
grantors
may
“affected”
only
part
parcels
of their
be
otherwise affect
is
at a maximum
regulated
of Flathead Lake
when the water level
2,893
parcels may
Kerr
Some
feet at
Dam.
controlled elevation
elevation,
while
entirely
level
at this
“affected”
when
water
operator’s right
again,
not be
at all. But
the dam
others
“affected”
only
which are “affected”when
parts
parcels
extends to
those
Hence,
2,893
at
feet at the dam.6
dam-related effects
water level is
which occur because
water level
Landowners’
2,893
beyond
regulated at the
above an elevation of
feet would be
dam
scope of
easements.
Conversely, nothing
language
in the easement
establishes
ceiling
2,893 feet
mean
level on
contour line or
at
above
sea
limiting
“flooding, subirrigating,
all
parcel
each Landowner’s
such that
*10
occur
The
draining,
affecting”
or otherwise
must
below
elevation.
2,893
level
feet
language states that the maximum controlled water
qualifier
apparently
“at said dam”-a critical
the Landowners
2,893
entire
disregard. There is no stated limitation of
feet around the
Indeed,
any
shoreline.
language contemplates
the easement
that “all or
part
given
parcel may
be “affected” when the water
of’
shoreline
2,893
Thus,
at
level is raised to an elevation of
feet
the dam.
while
2,893
may
points
water
occasion exceed
feet at other
around
level
lake,
claim,
as the
and while MPC and PPLM
Landowners
properties
points
“affected”
at
on those
have
various
shoreline
2,893 feet,
above an elevation
as the Landowners also
properties
claim,
permitted by
language
such
are
the easement
when the
events
of2,893
regulated
level is
at the
at an elevation
feet or less.
water
dam
(Mo.
Co.,
1955),
Rutledge v.
280
670
cited
Union Electric
S.W.2d
by PPLM,
language.
interpretation
does not alter our
of the easement
granted
flowage rights”
The
at
in that case
“unlimited
to
deed
issue
under, submerge,
‘back water over
flood
otherwise
said
or
or
otherwise,
parcels
through
tracts or
of land
backwater or
whether
erosion,
water,
by
ground
drainage,
lack
flooding,
seepage
caused
whatever,
any
manner
from the
drainage,
resulting
obstructed
construction,
dam.”
operation
Rutledge,
and maintenance of the
Tsjaid dam,
671, 673.
house
power
S.W.2d at
The deed also stated that
subject
6 Theterm “affected”is
constraints discussed under Issues
and
designed
and works
shall be
to hold the water
appurtenant
thereto
approximately
level,”
at
660 feet
mean sea
level at the dam
above
but
Rutledge,
it did not
a maximum
of water at the dam.
state
elevation
Indeed,
“approximately
interpreted a vertical PPLM’s use and right limit on affect their properties, PPLM expand then could surface area of Flathead Lake indefinitely expense at shoreline property owners They undercutting eroding away properties. their assert that such expansion past that, occurred has over the several decades and aas result, 2,893-foot line contour around the lake is wider now than it was in predecessors the 1930s. Landowners maintain that their agree did not this “ever-expanding taking” of shoreline property. essence, argue any interpretation Landowners language under shoreline property granted owners right entirely, MPC the perpetual flood erode their thereby rendering permanently those properties submerged and customary unusable for would See purposes, be absurd. §28-3-301 -401, MCA (respectively, interpreted “[a]contract must give be so as to effect parties to the mutual intention at as it existed time contracting,” “[t]he of a language govern contract is to its interpretation the language if is clear and explicit and does not involve an absurdity”). agree We interpreting language contract grant such a would an absurdity involve as Kerr insofar Dam *11 operated unreasonably. Indeed, artificially as to the that an effect 2,893 lakeshore, maintained water level of feet on would have Frank told people prior M. Kerr these to the construction of the dam: you ‘If your will or do on anything property light your build experience heretofore, as to what of the lake prevailed elevations have you way above, will in no affected the new As conditions.” noted average pre-dam 2,890 the lake’s peak feet, elevation was and the steadily during 2,882 feet, water level dropped roughly summer to where following light it would remain until spring. of these (§§ circumstances, 28-3-402, 70-20-202(2), which consider and MPC MCA), certainly grant, did not intend to owners property obtain, right properties to sink their did not intend to an unfettered into the completely permanently lake. however, time, guarantee, not and the At the same MPC did
¶28 be no reasonably expect, could not there would property owners damage resulting operator’s to their from the dam properties at all Indeed, right years. over the the Landowners exercise of its flooding course their challenging are erosion that occurs in the not draining off the fall and properties spring during in the the water taking” they occurs not “ever-expanding complain winter. The ofwhich dam, 2,893 simply the lake level is raised to feet at the but because at into the season shoreline kept pool because it is full fall storm when significant-a practice erosion most the Landowners contend unnecessary damage properties. causes and unreasonable their Thus, construing the ‘2893 feet” clause as we have to be a limitation dam, limiting level at to a contour line opposed water lake, Rather, an absurdity. around the does not of its own force create language use construing grant right the easement reasonably necessary Landowners’ in a manner that is not properties by or to cause erosion and to those unreasonable pool the lake full fall storm would maintaining at into the season absurdity. considerations, however, create the These are addressed it to respectively. say, purposes below under Issues and Suffice discussion, present ofthe that the feet”clause not establish ‘2893 does argued limit operator’s vertical the Landowners. While the dam flood, subirrigate, drain, parcels affect otherwise shoreline unlimited, 2,893 is not it is maximum not restricted to a elevation Rather, at parcel. parts feet each it extends to whatever of those 2,893 parcels are “affected” the level of Flathead Lake held at when feet sea Kerr above mean level as measured at Dam. accordingly affirm the that the We District Court’s conclusion summary on the judgment
defendants entitled to Landowners’ theory. “contour line”
Issue 2 Is Dam under operator Kerr allowed the easements to cause erosion to the Landownersproperties? ‘2893 The Landowners contend even if the feet” clause does lake, line limiting contour around the the easement establish do not MPC PPLM to to their contracts still allow cause erosion allegedly properties, particularly type quantity erosion *12 226 here-namely, undercutting
has a of occurred caused combination artificially presence higher during lake levels and of waves high fall storms. grants perpetual language The relevant easement ‘the and flooding, draining, affecting” otherwise subirrigating, or its Landowners’ with waters of Flathead Lake and “eroding” out point
tributaries. The Landowners that is not listed. Furthermore, they with the term respect affecting,” “otherwise ejusdem generis, holding invoke a of that a canon construction “when general phrase specifics, general word or list of or follows word phrase interpreted only will be to include of the same items class ed., Dictionary (Bryan ed., those listed.”Black’s Law 594 A. Garner 9th 2009); Adams, 105, 114-15, West also v. City see Circuit Stores 532 U.S. (2001) (“‘[T]he 1302, 121 general S. Ct. 1309 words construed only objects embrace similar nature to objects in those enumerated ”). specific preceding argue words.’ Landowners that under ejusdem generis, affecting” only “otherwise includes those actions “flooding,” are similar “subirrigating,” nature and “draining” that “eroding” and is outside class. For PPLM part, acknowledges “eroding” its that is not expressly
listed in language the easement and that affecting” may “otherwise be things limited to similar in flooding, nature to subirrigating, and draining. argues But PPLM erosion consequence flooding, is a is, and subirrigating, draining therefore, the scope within other words, easements. PPLM maintains erosion which necessarily occurs in the of ‘flooding, subirrigating, draining, course affecting [the otherwise properties] Landowners’ with the waters Flathead permitted Lake its tributaries” is under the easement contracts. applied We ejusdem generis, have doctrine which is caselaw, in our
longstanding statutes, to constitutional provisions, written instruments.7 application, Before the doctrine can have e.g. City of Kalispell 5, 221, 230, 742, See v. School Dist. No. 45 Mont. 122 P. (1912) “streets, (“public places” alleys public places” 744-45 in the list did not public property); Bardsen, 954, McLaughlin 177, 188, 145 include school 50 Mont. P. (1915) (“other “shaft, drift, 956 did 221, 225-27, 232 prospect excavation”in the list hole or other excavation” question); Dist., Bynum not include sewer trench in 528, Thaanum v. Irr. 72 Mont. (1925) (“other any P. subdivision of the state” the list “nor county, city, town, municipality, nor other subdivision of did not the state” include the irrigation district); 902 Children, 618, 621, 161 Transp. In re School 117 Mont. P.2d (1945) (“other “building, furnishing, repairing, work” in the list or other work” did pupils); R.R. Commrs., 153 transporting 384, 388, 457 not include Walter v. Mont. Bd. (‘inerchandise (1969) ‘heavy P.2d equipment, list and commodities” in the words, Burke v. specific must associated with general words Sullivan, 203, 205 (1954), 374, 378, requirement 265 P.2d 127 Mont. here, affecting” directly associated clearly met as “otherwise Hence, interpret ‘flooding, subirrigating, draining.” with only same affecting” to include items of the general term “otherwise *13 terms. specific class as those three ‘flood,” executed, contracts were At the time the easement “drain” were and as follows:
“subirrigate,” defined inundate; as, the overflow; deluge; “1. To the river flood: flooded inundated; to to or cover with valley. permit 2. To cause or be fill fluid; as, irrigation; land for ....” or other to arable water flood Language Dictionary English New International Webster’s of (2d 1934). usually ed. “An inundation of water over land not 970 (8th Dictionary Law 2, vol. 1247 ed. Bouvier’s by it.” covered 1914). surface, as of
subirrigate: irrigate by system ‘To below the New International Webster’s underground pipes. porous Dictionary land, to irrigation; ‘To to of irrigate: subject 2509. over, causing flow or by upon, with water a stream to supply to water.” Webster’s New it, channels; through as in artificial Dictionary International of irrigation: operation 1313. ‘The artificial watering causing by lands or water to flow over lands Dictionary Law 2, Bouvier’s means ....” vol. 1683. to flow out or by degrees; gradually
drain: “1. To draw off to cause as, tank; hence, to drain water off; utterly; to draw off to from a by 2. of liquid cause the exhaustion of.... To exhaust contents drawing off; gradually dry them make or to remove empty; to streets, Webster’s New from, etc.;....” by gutters, surface water as Dictionary International place 782. water from one to ‘To conduct Law another, Bouvier’s for former.” purpose drying Dictionary vol. 1, 939. is “erode” in the as these question whether is same class ‘flood,’’“subirrigate,’’and “drain”
terms. We conclude it is not. Whereas water, placement contemplates or removal of “erode” involve gradual away something: wearing destruction or ...; away; by disintegration eat slow destroy
erode: ‘To into or shovels, tractors, petroleum power did not include merchandise commodities” (1976) 282-83, 512, Donovan, 278, products); In re 169 Mont. 546 P.2d 514-15 Estate of (“all set, sewing table, “my three all my personal Zenith Color Television effects”in the list my pieces jewelry, glass pitcher, luggage, Samsonite costume cut vase and of White issue). jewelry personal expensive not include the at effects clothes” did 228 Phys. away, by & to wear as land
specif., Geog., Geol. action water;....” Dictionary Webster’s International 869. New erosion: gradual eating away operation ‘The soil of currents Dictionary 1, or tides.” Bouvier’s Law vol. away land,
To
such
not in
something,
wear or eat
is
the same class
may
as to
from
move water
one location
another. While erosion
a consequence
flooding, subirrigating,
draining,
it is not
similar
right
Accordingly,
nature to those actions.
to erode is
term
affecting.”
included in the
“otherwise
analysis, however,
This conclusion does not end our
as PPLM
contends,
agree,
right
right
incident
erode is
to the
flood, subirrigate,
ago recognized
and drain. This Court
“the
long
law,
maxim
thing
granted,
that when the use of a
everything
is
granted by
enjoy
the grantee
reasonably
use,
such
is, rights
granted.”
that are incident
something
else
Laden v.
Atkeson,
302, 306, 116
881, 884 (1941);
P.2d
Mont.
accord Sullivan
(Mass. 1934) (“When
Donohoe,
v.
N.E.
an
created, every
other property
right necessary
enjoyment
its
by implication.”);
is included
e.g.
County
see also
Carbon
Union
(1995) (“[T]he
Co.,
459, 473,
Reserve Coal
271 Mont.
898 P.2d
includes,
transfer of a mineral
interest
implication,
incidental
*14
mineral.”).
rights reasonably necessary
extract
to
the
that
rule
conveyances include
rights necessary
those
to make use ofthe property
conveyed can
traced back
at
in the common law least as far
as
(1239-1307)
13th century: “Amaxim
dating from
time of Edward I
grants
thing
states that one who
a
must be understood to have granted
that
thing
without which the
could not
exist.”
be or
Restatement
(Third)
(2000);
Property:
cmt. a
County,
Servitudes
Carbon
§2.15
of
cf.
(“[T]he
473, 898
271 Mont. at
grant
particular
P.2d at 688
aof
interest
tacitly
in property
grant
carries
with
those incidents without which
avail.”).
grant
be of
rights
would
no
These
the nature of a
easement,”
“secondary
i.e.,
appurtenant
‘ia]n easement
that is
to
primary
easement;
right
or actual
things
necessary
to do
that are
fully enjoy
Dictionary 587;
the easement itself.” Black’s Law
see also
Loyd
(Ark.
935, 938
v.
Corp.,
Southwest Arkansas Utilities
580 S.W.2d
1979) (“Asecondary
simply
easement...
is
a
device
legal
permits
fully
the owner
enjoy
rights
of an easement
all of the
and benefits
easement.”);
of Realty Co.,
v. F.A. Sebring
69 So. 2d
Crutchfield
1954)
(Fla.
(“
‘Every
by
easement carries
it
implication
with
the right,
secondary easement,
sometimes called
doing
of
is
what
reasonably necessary
enjoyment
”);
for the full
of the easement itself.’
course,
by
as
70-17-112,
implication
nothing passes
MCA. Of
§cf.
reasonably
which
grant
except
an easement
is
to the
of
incidental
Fancher, & Son
enjoyment.
Kearney
fair
See
necessary to its
(Tex.
1966); Laden,
at
2d
112 Mont.
App.
Civ.
Dist.
S.W.2d
306,
subirrigate, water Lake. goes the waters of Flathead It without regulating the course of Indeed, the inevitably during process. erosion occurs saying that (1) fact: cite two of “erosion”which reflect this Landowners definitions in an area by ground which flood waters lower the surface process “the soil” Nevada Division of Water by removing upper layers (citing of 1098) (2) eating “the Dictionary gradual and Planning, Water Words by (citing of currents or tides” Bouvier’s away operation of the soil away, as Dictionary). Likewise, “erode” ‘to wear Law Webster’s defines Dictionary by as the action ofwater.” Webster’sNew International land in the away” of is “wearing 869. Since a certain amount inevitable shoreline perpetually flooding, subirrigating, draining course if do avail grant right of the the latter would be of no properties, Hence, the grant right it not also include a to do the former. did enjoyment necessary right some to the to cause erosion and, thus, by flood, subirrigate, included perpetually drain in the easements. implication contend, however, types degrees The Landowners that certain They begin distinguishing by erosion are allowed. “flooderosion” erosion,” they define,
from ‘bank erosion” and ‘beach based Dictionary, Water Words follows: by process ground flood erosion: the which flood waters lower the removing in an by upper layers surface area soil bordering erosion: of land or water bank destruction areas rivers cutting wearing flowing or waves or water bodies action of retrogression large erosion: the shore line lakes beach action, currents, coastal caused waters wave shore causes natural other than subsidence (since if argue permissible
The Landowners that even erosion” is “flood operator express right dam has the to ‘flood” their properties), *15 In this beyond scope “wave action” erosion is of the easements. (accessed Aug. http://water.nv.gov/WaterPlanning/dict-l/ww-dictionary.pdf 2009). pages Dictionary Reply Brief PPLM attached from the to its several Water Words Summary Judgment. Support of Motion for regard, they assert that damage” the “massive to their properties has by erosion, been caused not by flood but bank and beach erosion by brought artificially a combination of high lake levels and storm- driven minimum, wave action each fall. At a contend, the Landowners genuine there is a issue of material fact as to the kind and causes of damage the erosion at issue here. persuaded We are not operator’s the dam right erosion
limited to by “flooderosion” as defined the Landowners. As discussed above, the right to cause erosion expressly is not granted in the contracts; rather, it by is included implication with the express right perpetually flood, subirrigate, such, and drain. As scope of the erosion is defined as that reasonably which is necessary to the enjoyment of the express rightwhich, depending on (e.g., high circumstances how regulated when), the lake is erosion, include bank erosion, beach or some other type of erosion. Accordingly, agree we cannot that bank and beach erosion are per se outside the scope of the question, rather, easements. The is whether specific erosion of which the Landowners complain was and is reasonably necessary during the times it has been occurring. If not reasonably necessary, then that erosion is not within the easements. In this regard, PPLM asserts that Flathead Lake’s water level is “mandated” the dam license. This is true respect with April (2,883 feet), Day (2,890 feet), feet). Memorial (2,893 June 15 But PPLM cites no term in the license dictating that the lake must be 2,893 maintained at October, feet into and PPLM admitted at oral argument the Federal Energy Regulatory Commission has imposed no such requirement. hand, On the other aside, the license parties have come forward conflicting with evidence regarding the kind and causes of erosion and the propriety of keeping the lake pool at full into the fall. For example, the Landowners cite various studies their consultants, one of whom concluded that lowering 2,890 the lake to feet in October would “essentially stop erosion of the full pool shoreline greatly reduce structures,” to shoreline while PPLM cites a 1996 Federal Energy Regulatory report Commission discussing alternative pool management scenarios. The point Landowners also out that discovery (including their reports) consultants’ final had not been completed when the District Court took the motions for summary judgment under advisement. We therefore conclude that question of whether
complained-of erosion was and reasonably necessary and, thus, within the scope of the easements cannot be resolved at this stage *16 and, if development factual through summary judgment. Further the District Accordingly, we reverse necessary, required. a trial are on the summary in favor of the defendants grant judgment Court’s of for proceedings remand further theory Landowners’ “erosion” this issue.
Issue to required Dam not cause operator Is the Kerr ¶43 of to, unreasonably damage with the unreasonable or interfere enjoyment of, properties? the Landowners’ reasonably necessary enjoyment is to the of Even if some erosion easements, operator contend that the dam the the Landowners to, damage to cause or interfere required not unreasonable enjoyment of, support their As for unreasonably properties. with the (Third) they cite Servitudes proposition, Property: this Restatement (2000). Issue §4.10 Consistent with the law discussed under §4.10 servitude, by the holder of states that unless limited the terms in a manner that is an easement ‘is entitled use the servient estate necessary enjoyment of the servitude.” reasonably the convenient states, the however, by that unless authorized terms Section 4.10 also servitude, the holder ‘Is entitled to cause not damage unreasonably to the estate or interfere unreasonable servient its that the enjoyment.” explain with comments further §4.10 may any greater damage than that easement holder “cause contemplated by reasonably accomplish the parties, necessary or (cmt. purposes g) of the servitude” not use the easement ‘in a way unreasonably enjoyment such as to interfere with of the servient (cmt. h). damage estate” What constitutes unreasonable circumstances, depends interference on the such unreasonable estate, character the servient purpose for which servitude created, the use reasonably was of the servient estate made or contemplated at the time the easement was created. See Restatement (Third) g, cmts. Property: Servitudes h. §4.10 summary judgment briefing, their the Landowners cited §4.10 damage that an must that the arguing easement holder “show was reasonably greater necessary by parties,” no than or contemplated while PPLM cited for the that easement holder proposition ‘ia]n §4.10 has the cause right ‘contemplated whatever parties, reasonably necessary accomplish purposes alternative) addition, argued (apparently ”In PPLM in the servitude.’ specific, analysis the easements of what is because here “an ‘reasonably necessary’ is irrelevant. The dominant tenement has the liability.” Addressing issue, to use the easement without applies only District Court held that 4.10 to damages that are § Thus, reasoning unrelated to the use of the easement. (since damages Landowners’ were related to the use of the easements they flooding, subirrigating, occurred in the course of and draining), the court concluded any that MPC and PPLM did not violate duties imposed §4.10. argue The Landowners that the analysis District Court’s is in They
error. contend that the requirement to abstain from unreasonably damaging the servient estate is “an independent *17 requirement applies maintains, that to all easement holders.” PPLM however, “only that applies general”4.e., when the easement is §4.10 (see specific particulars when it lacks regarding scope e.g. Guthrie v. 467). Hardy, 122, 49, 367, 28 2001 MT 305 Mont. ¶ P.3d PPLM asserts that where an easement’s purpose specifically is defined and the easement terms, holder’s use is within the scope express of the there liability is no damage for occasioned argues such use. PPLM thus that specific because the purpose of the here easements is to allow ‘flooding, subirrigating, draining, or affecting” otherwise Landowners’ properties, and because PPLM “acting has been within limits,” [those] the issue of reasonableness is ‘irrelevant” and the Landowners cannot state a disagree claim. We and conclude that the Landowners’ position is correct. preliminary matter, As a we that contrary observe to PPLM’s
contentions during
argument,
oral
the reasonableness standards set
forth in
are longstanding
§4.10
example,
well-settled. For
recognized
Court has
secondary
that
rights
easement
must be
exercised ‘in such a
needlessly
reasonable manner as not to
increase
upon”
burden
or
“unnecessary injury
do
to” the servient estate.
(internal
Laden,
306,
wisdom
only to
noted,
argues
applies
PPLM
that §4.10
As
easements at issue.
an easement
essence, PPLM asserts that where
In
general easements.
her easement
defined,
may exercise his or
the holder
specifically
damage to
causing unreasonable
liability” for
rights “without
fails for several reasons.
argument
estate. This
servient
easement,
creating an
instrument
construing
written
it existed at the
mutual
intention as
give
parties’
effect to the
must
and lawful.
far
the same is ascertainable
contracting,
time of
so
(Third)
Property:
28-3-301, MCA; see also Restatement
Section
(‘[T]he
is to
function of
law
Servitudes
Chapter 4 Intro. Note
*18
legitimate
likely
to the
intentions
give
effect
ascertain
servitudes.”).
parties’
create
parties
of the
who
expectations
9
2002)
(Ariz.
Glovitz,
420,
App.
e.g.
36-37
1st Div.
¶¶
v.
50 P.3d
See
Paxson
1995) (‘IT]he
(Ark.
Brown,
S.W.2d 546, 550
§4.10);
holder of
(applying
897
Wilson v.
damage
duty
property
the owner of the
so as not to
estate has a
to use
dominant
servient
(Colo. 1998)
1237-38,
Ranch,
1229,
Telluray
1241
estate.”); Lazy Dog
965 P.2d
Ranch v.
(‘The
§4.10); Peterson,
an easement must
(adopting
intention, turn, writing is to be ascertained from the ‘if alone 28-3-303, MCA; possible.” 70-17-106, MCA; Section see also § (Third) §4.1(1). Property: Restatement Servitudes But that is not of always possible, specifically easement, even with a defined servitudes are often created documents lack express which terms governing many questions may arise as to the scope or application intended (Third) servitude. See Restatement of Property: b, a; Servitudes Lazy Dog cmt. 4.2 cmt. §§4.1 Ranch v. (Colo. 1998). ay Ranch, 1229, 1237 Tellur 965 P.2d Perhaps parties did not foresee the situation that has occurred or did not incur the expense drafting of a document every eventuality. Indeed, to cover PPLM itself asserts that the easement at contracts issue here are “typical”in they “donot specifically every mention type damage of [the Landowners’] occur to properties.” The Restatement thus articulates a number of “default” rules which are to be used “supplement” courts to the terms of a servitude as necessary to determine the rights obligations of the parties or (Third) their successors. Restatement Property: Servitudes §§4.1 c, 4.2,4.10 cmt. cmt. a. These rules are set forth in through 4.13 §§4.3 and, of the Restatement in the case expressly easements, created may be used supplement ‘to the specific terms” of the servitude. (Third) Restatement Property: Many Servitudes cmt. d. §4.1 rules simply impose a reasonableness standard. reasons, For reject these PPLM’s contention that §4.10
does not apply here because the easements are specific in nature. For thing, one there is no merit to premise PPLM’s that because the parties an easement endeavored to define the easement in specific terms, they must have succeeded in setting every out necessary term all disputed questions resolve which could ever arise as to its scope, thereby eliminating any need to resort to the Restatement’s supplemental default rules. This premise utterly divorced from reality, as the instant lawsuit Moreover, illustrates. PPLM fails to recognize the limited nature anof easement. It nonpossessory is a interest in right land-a person one has to make limited uses of another’s property particular for a purpose; it is grant neither a of title to the property possessory nor a Wall, interest. See Blazer v. 2008 MT 145, 24, 173, 343 Mont. 84; Taylor ¶ 183 P.3d Co., v. Montana Power 247, 24, 2002 MT (Third) 162; Mont. ¶ P.3d Restatement Property: Servitudes cmt. d. §1.2 While the easement holder has the to use the servient estate in a reasonably manner that necessary to the enjoyment servitude, see supra-, ¶
235 (Third) 4.10, the easement § Servitudes Property: Restatement damage inflict right an to unreasonable holder does not have inherent in that use. the course of connection, two contained agree presumptions we with the this right on hand has the §4.10mamely,
in
that the
holder
one
Tejxcept
reasonably
manner
necessary
use
estate
a
to
the servient
hand has no
by
as
the terms of the servitude” but
the other
limited
Tu]nless
right
damage
to
to the servient estate
cause unreasonable
with the
authorized
the terms of the servitude.” This accords
that the
expects
commonsense view that
owner of a servient estate
reasonably necessary
enjoy
do
to
easement holder
what is
and,
damage to her
process,
servitude
in the
cause reasonable
to
property,
does not
the holder
inflict unreasonable
expect
but
has
damage
scope
or interference. Even where the easement’s
been
defined,
that the
of the servient
specifically
we will not assume
owner
through
grant
estate
to
the unfettered
intended
her silence
unreasonably damage
property.
PPLM claims it has here to
her
Such
absurdity
very
an
would lead
are bound
avoid
assumption
we
MCA).
(§28-3-401,
Rather,
parties
intended
fair
presume
and,
end,
balance of their interests
to that
intended the easement
be
damage
used
a manner
to or interference
such
that unreasonable
(except
clearly
with the servient estate would not occur
authorized
(Third)
agreement).
Property:
the terms of the
See Restatement
(TWjhere
agreed
h
parties
Servitudes
4.10 cmt.
have not
§
otherwise,
fair
interpreted
the servitude should be
to reach a
balance
(TT]he
interests.”);
Ranch,
Lazy
of their
965 P.2d at
Dog
1238
interests
of both
must be
in order to achieve due and
parties
balanced
estate.”);
enjoyment of both the easement
the servient
reasonable
195, 196,
see also
230
at
e.g. Sampson,
Mont. at
748 P.2d
964
terms,”
easement for
road” was
in its
(although
private
“specific
‘Ta]n
“unreasonably
not
easement still could
be used so as to
burden the
tenement”);
Corp.,
Electric
344
Stirling
Membership
servient
v. Dixie
(La.
1977)
427, 428,
(although
So. 2d
the easement
included
App.
had to
express right
shrubbery,”
an
‘to cut and trim trees and
manner,
regard
rights done ‘in a reasonable
with due
to the
all
reasonable);
parties”;
spraying
indiscriminate
chemical
not
was
1986) (the
(N.H.
Baldi,
297, 300,
A.2d
Thurston Enters.
reasonably... so as
grantee of an easement
use the easement
“must
grantor”;
“destruction of the
possessory
interest
unreasonable”).
underlying
property by
fee
the user of an easement is
reasons,
reject the
4.10
§
For similar
we also
contention
applies only
damages
to,
that are unrelated
or do not occur in the
of,
course
the use of the easement. The primary
purpose
rules
*20
through
set out in
supplement
4.13
“to
§§4.3
terms of the
servitude” and to aid the court
in determining
rights
“the
obligations
parties
successors,”
of the
their
including
rights.”
“use
(Third)
Restatement
Property:
d, 4.2,
Servitudes
cmts. c and
§§4.1
4.10. The
that
notion
the ‘ho
damage”rule prohibits
unreasonable
only
damages
those
the easement holder inflicts on the servient
property
using
when he is not
sense,
easement belies common
nothing in
Chapter
of the
supports
Restatement
such an approach.
(8th
Carvin
Co.,
v. Arkansas Power and Light
¶54
¶55 we hold that the requirement to cause damage unreasonable to the servient estate or unreasonably interfere (unless with its enjoyment clearly authorized the terms of the servitude) independent is an requirement anon easement holder’s use words, easement. In other requirement this can be breached if even the easement holder is operating within the easement’s technical parameters. applied As present case, we first note that nothing in the language authorizes MPC and its successors to, cause unreasonable or interfere unreasonably with enjoyment of, the Landowners’ properties. Thus, while the dam operator may use properties those in a manner reasonably necessary for the enjoyment convenient easements, its it has a damage to the separate obligation not to cause unreasonable enjoyment. their unreasonably or interfere with obligation, Whether MPC and PPLM have breached however, stage summary judgment. cannot be at this through resolved issue; have come with evidence on this parties conflicting forward thus, development and, necessary, factual if a trial are further required. accordingly grant We reverse the District Court’s summary judgment in on the favor defendants Landowners’ theory damage” “unreasonable and remand further proceedings for this issue.
Issue 4 evaluating the Landowners’ motion class for certification, was the required District Court to take all their allegations ‘hs true’? In June the Landowners filed a motion class certification Noting as to PPLM. District already granted Court had such *21 MPC, as to they motion that in “exactly asserted PPLM was the same position” MPC had in before been the December 1999 transfer of Thus, they MPC’s interest in Kerr Dam to PPLM. reasoned that the court’s decision granting class certification as to MPC was “equally applicable” to PPLM. They asked that the identical class certified. be response, In PPLM that argued ¶59 the motion Landowners’ for class and, certification lacked “any evidentiary factual support” consequently, PPLM could not adequately respond to the motion and court the did not “a have sufficient factual basis” on which to decide the motion. PPLM the stay ruling asked court to on the motion the pending completion discovery of initial an requested and also evidentiary hearing on addition, the class-certification issue. PPLM presented an analysis motion, on the merits of the Landowners’ arguing on “the factual allegations based limited set forth to date” that the Landowners could not meet three of the elements to necessary 23(a) (b)(3). certify a class under M. R. Civ. P. and The District Court request evidentiary ¶60 denied PPLM’s for an The court hearing. noted that PPLM had “an submitted extensive and thorough and, brief in to opposition the certification motion brief,” an subsequently, support affidavit in of such to which the Landowners had filed a The reply. court stated that it could not what ‘imagine present hearing counsel could better evidentiary at an upon relatively they narrow issue than in their have briefs and Moreover, gravamen affidavits.” the court noted that the operation the ongoing claims was based Landowners’ Thus, Dam, of the time-to-time owner. regardless management Kerr considered, heard, arguments and rejected already it had since certification, and the class since the elements of MPC’s counsel on as to the motions MPC underlying facts Landowners’ operative evidentiary that an same, persuaded the the court were was PPLM hearing was needed. order, granted Court Thereafter, separate the District in a doing, to In so class as PPLM. for certification
Landowners’ motion
rule, a
is not
correctly
that as a
court
allowed
general
noted
court
in
claims
order to
analysis
plaintiffs’
the merits of the
engage in
(citing
may maintained
Retired
a class action
determine whether
(7th
584, 598
City
Chicago, 7 F.3d
Cir.
Chicago Police Assn. v.
1993)).
it
However,
“required
also
that was
take
the court
stated
(citing
class
as true”
allegations
support
in
action
Plaintiffs’
156, 177-78,
U.S.
analysis of Landowners’ motion have its argues true.” PPLM the court should made “as and, upon Rule 23 in this determination under ‘based evidence” evidentiary an suggests that the court should have conducted regard, do fact meet the elements hearing ensure that Landowners the case for 23. PPLM asks us “remand determination of ofRule utilizing appropriate action standard.” class respond opportunity” PPLM had “ample Landowners any it chose and that the District Court was well submit evidence evidentiary an denying request its PPLM’s within discretion actually court hearing. Moreover, the contend that the Landowners and evidence PPLM claims were material to the considered facts *22 Thus, they conclude that PPLM’s concerns class-certification issue. misplaced. They of this issue are handling over the District Court’s ‘(t]he validity claims [their] is not to be tested at the emphasize stage.” class certification assertion, however, it is Contrary the not clear to Landowners’ the court in fact all the District Court’s order whether considered
from the PPLM is relevant to class- of the evidence that contends so, fact, given it is the court did that it certification issue. In doubtful Supreme The did not state legal an standard. Court applied incorrect
239 required allegations that a ‘Is the Plaintiffs’ in Eisen court to take (as opined). of the class action as true” the District Court What support said, rather, Supreme nothing language the Court was in the history authority court “gives any of Fed. R. Civ. P. 2310 a conduct of a inquiry a into the merits suit order determine preliminary Eisen, it 417 may whether be maintained as a class action.” U.S. at 177, 2152; Wright, Miller, 94 S. Ct. at see also Alan Arthur R. Charles Mary Kane, 7AA, 1785, Kay & Federal Practice and Procedure vol. § (3d 2005) (“[I]t ed., clear that 376-77 West now is an evaluation of the consideration.”). underlying Yet, of the dispute proper merits is not lacking conduct an into the the authority inquiry merits of suit does mean the must take all plaintiffs’ allegations not court as true 11 purposes evaluating for Rule 23 motion. See Federal Practice and (‘The §1785, Procedure 379 Eisen prohibition addresses concern parties a probability should have to show of success on the certification; in order prove merits class it does not limit the court’s necessary inquiry underlying into elements of the case in order to met.”). evaluate whether Rule 23 has been Indeed, proposition judge accept “[t]he that a district must all of complaint’s allegations deciding certify when whether to a class nothing Szabo,
cannot be found in Rule 23 and has recommend it.” certainly 249 F.3d at “A may pleadings district court look past to determine requirements whether rule 23 have been met. Going beyond necessary, as a pleadings court must understand claims, defenses, facts, applicable relevant substantive law in meaningful order to make a determination the certification issues.” (5th 1996) Co., v. Castano American Tobacco F.3d Cir. (footnote omitted). Supreme Court has explained that
the class generally determination involves considerations that are enmeshed in factual legal comprising plaintiff issues s plain enough cause of action. Sometimes the are issues from the pleadings to determine whether the interests absent parties fairly encompassed plaintiffs claim, within the named sometimes it necessary probe court to behind the respects M. R. Civ. P. 23 is identical in all relevant to Fed. R. Civ. P. 23. 12(b)(6) 11 Amotion Rule 23 motion under differs from a under Rule where the plaintiffs allegations e.g. does court take all of the of fact as true. Lozeau See v. Geico Co., 8, 350 MT 136, 320, 207 316; Bridgeport ¶ Indem. Machines, Mont. P.3d see also Szabo (7th 2001). 249 F.3d 675-77 Cir. *23 240 ... question. the certification to rest on coming before
pleadings 23(a) remains ... with Rule conformance [A]ctual, not presumed, indispensable. 2364, Falcon, 457 U.S. 147, 160, 102 S. Ct. Co. v. Telephone
General omitted). (citations (1982) marks quotation internal class, simply is certify question a determining whether Rule 23’s meet representative and class class proposed whether “a determination, judge To make for certification. requirements necessary under legal inquiries are factual and make whatever should end, may allow Szabo, the court at 676. To that 249 F.3d Rule 23.” Moore, Moore’s Federal See James Wm. hear discovery and evidence. (3d 2009); ed., Bender 23.84[2], Matthew Practice vol. 5, 23-386 § 1982) (“[TJhere (2d Devices, 673 F.2d Cir. Sirota v. Solitron court, prior for a district proper it is no doubt can be hearings to discovery and to conduct class, to allow certification of satisfied.”); Retired Rule 23 are prerequisites whether the determine (TS]ome necessary to Police, discovery may be Chicago at 598 7 F.3d certified.”). there is no Although a class should be determine whether hearing held, many cases a hearing that a requirement absolute necessary, example, for when and useful-er even appropriate is question is court on the certification before the paper record §1785, 364-68; Intl. Procedure Federal Practice and inadequate. See Bay Plywood Corp., 659 F.2d Chesapeake America v. Woodworkers of 1981) (‘It (4th ever, seldom, if to resolve possible Cir. facts pleadings, from the and where questions representation class evidentiary inadequate, an during discovery proceedings are developed or, necessary if for parties request be held on the hearing should 23, by Rule the court sua requisites into the meaningful inquiry sponte.”). courts as of the federal persuaded approach We note that regard, sound. In this in the cases cited above is
reflected guidelines recently following articulated the Circuit the Second addressing Rule 23 motions:
(1) only making after may certify a class judge a district requirements Rule 23 has been that each of the determinations (2) judge if only made met; determinations can be such requirement Rule 23 relevant to each disputes resolves factual to a underlying facts are relevant that whatever and finds and is have established requirement Rule 23 been particular rule, applicable the relevant facts and based on persuaded (3) met; obligation to standard, requirement that the legal make such determinations is not lessened overlap between a requirement issue, Rule 23 and a merits even a merits issue that (4) is identical requirement; with a Rule 23 making such determinations, judge a district should not any aspect assess (5) the merits unrelated requirement; to a Rule 23 a district judge ample has discretion to circumscribe both the extent of discovery concerning requirements Rule 23 and the extent of a *24 hearing to determine requirements whether such are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits. (2d 2006).
Miles v. Lynch Co., 24, Merrill & 471 F.3d Cir. We adopt these guidelines for purposes of M. R. Civ. P. 23 and hold that the District Court concluding erred in it “required was to take the allegations Plaintiffs’ support in of the class action as true.” We therefore vacate the July court’s 2003 Order on Motion for Class Action Certification as to Montana, LLC, Defendant PPL and Rationale and remand for pursuant reconsideration to the Miles guidelines. As for request
¶68 PPLM’s for an evidentiary hearing, we hesitate to impugn the District matter, Court’s decision on this as the court articulated a number of persuasive reasons for denying PPLM’s is, request. however, The fact that the court operating was under an legal incorrect standard at the time. As just explained, the court past look the Landowners’ pleadings to make whatever factual and legal inquiries necessary in determining whether the proposed class and representatives class meet the requirements for certification under Rule 23. We therefore vacate the District Court’s February 2003 Order on Motions Regarding Class Action Certification as to Montana, Defendant PPL LLC, and Rationale and remand for reconsideration.
CONCLUSION We conclude ¶69 that PPLM’s flood easements do not necessarily pose legal barrier to the summarize, Landowners’ claims. To we affirm the grant District Court’s summary judgment in favor of the defendants on the Landowners’ “contour line” theory, but we reverse the court’s grant of summary judgment favor of the defendants on Landowners’ “erosion” and damage” “unreasonable theories. Further and, factual development if necessary, a trial are required in order to determine whether MPC PPLM exceeded scope easements causing erosion that not reasonably necessary was to the flood, and drain subirrigate, to right perpetually of their enjoyment (see 40-42, supra), by properties ¶¶ on and off the Landowners’ water properties or the Landowners’ causing unreasonable (see unreasonably enjoyment with the those interfering 55-56, supra), or both. ¶¶ Court’s orders issue, vacate District cross-appeal As for evidentiary on the class- hearing for an
denying request PPLM’s motion for granting the Landowners’ question certification action as PPLM. We remand of this lawsuit a class certification reanalyze request instructions to reconsider PPLM’s with under pursuant law discussed Issue question class-certification for further part, Affirmed in reversed in remanded part, proceedings. McCARTER, sitting for CHIEF JUSTICE
DISTRICT JUDGE COTTER, WARNER, GRAY, MORRIS and RICE concur. JUSTICES LEAPHART, concurring. JUSTICE correctly notes an easement is a Opinion I concur. The interest” in land-a which one has “use” “nonpossessory person I Opinion, the land of another. 16. cannot reconcile definition ¶ exercising such a proposition person, with easement, can, through theory via a “nonpossessory” interest flood *25 secondary easement, destroy completely of incidental or take or through my way thinking, estate Opinion, servient erosion. To ¶ through “possession” erosion to the ultimate destruction amounts Contrary to the definition of an easement-this is a property. “taking” opposed to a mere use. property nonpossessory However, Opinion question does leave open since reasonably necessary was and is complained whether erosion referenced, my I during forego the times definitional reservations and concur.