TALLY BISSELL NEIGHBORS, INC., a Montana Nonprofit Corporation, ROBIN ALLEN, NANCY ALLEN, BOB BROWN, SUE BROWN, JON CAPON, BETSY CAPON, MARIAN CARTEE, TOM COURTNEY, SUSAN COURTNEY, ED CHIANELLI, CHRIS EVANS, ROBERT FRAHM, MARGO FRAHM, ELDON FRAHM, JACQUELINE FRAHM, DON HANKS, WENDY HANKS, BONNIE HODGES, WILL HUNT, LESLIE HUNT, LORRI HUSTWAITE, DARRYL HUSTWAITE, JOHN KLASSEN, SUSAN KLASSEN, STEVE KNIGHT, KALEEN KNIGHT, MICHELE LARSEN, GREG LEE, RICHARD MARRIOTT, LINDA MARRIOTT, BRIDGET O‘LEARY, JEFF POWERS, BARBARA POWERS, ROB RICE, WENDI RICE, STEVE SMITH, SHARI SMITH, TIM WILLIAMS, AMY WILLIAMS, and AMY WINSLOW v. EYRIE SHOTGUN RANCH, LLC, a Montana Limited Liability Company, ROBERT HAYES and JOHN DOES, 1 through 3
DA 09-0147
IN THE SUPREME COURT OF THE STATE OF MONTANA
March 29, 2010
2010 MT 63
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV 08-184(A). Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Eric F. Kaplan and Stephanie M. Breck, Kaplan & Breck, Columbia Falls, Montana
For Appellees:
Sean S. Frampton, Morrison & Frampton, Whitefish, Montana
Decided: March 29, 2010
Filed:
Clerk
¶1 Tally Bissell Neighbors, Inc. (Neighbors), appeal the order of the District Court of the Eleventh Judicial District, Flathead County, granting the motion to dismiss to Eyrie Shotgun Ranch, LLC (Ranch). We affirm in part and reverse in part.
¶2 We review the following issues on appeal:
¶3 Did the District Court properly dismiss Neighbors’ public nuisance claim?
¶4 Did the District Court properly dismiss Neighbors’ private nuisance claims?
¶5 Did the District Court properly dismiss Neighbors’ trespass claim?
¶6 Did the District Court properly dismiss Neighbors’ attractive nuisance claim?
¶7 Did the District Court properly dismiss Neighbors’ constitutional and statutory claims?
¶8 Did the District Court properly dismiss Robert Hayes as a defendant?
FACTUAL AND PROCEDURAL BACKGROUND
¶9 Robert Hayes (Hayes) purchased approximately 60 acres of property in 2006 located in the Tally/Bissell Zoning District near homes and properties owned by Neighbors. The Tally/Bissell Zoning District lies southwest of Whitefish, Montana, in Flathead County. Hayes transferred the property to the Ranch, of which he is a member. Hayes and the Ranch constructed a private shooting range on the 60 acres.
¶10 Neighbors filed a multi-count action in which they alleged that the Ranch‘s operation of a shooting range in close proximity to a subdivision and an elementary school constituted both a public nuisance and a private nuisance. Neighbors further claimed that the shooting
¶11 The Ranch filed a motion to dismiss for failure to state a claim upon which relief could be granted. The District Court dismissed Neighbors’ public nuisance claim on the basis that
¶12 Neighbors had requested an injunction under the attractive nuisance claim to prevent the “likelihood of injury” to nearby schoolchildren. The District Court dismissed the claim on the basis that attractive nuisance represents a tort theory that requires a showing of damage. Mere anticipation of injury, according to the court, proved insufficient to enjoin the shooting range. The court dismissed the trespass action on the grounds that noise cannot constitute a trespass. The court reasoned that only a person or tangible thing that enters the property of another can constitute a trespass.
¶13 The court summarily dismissed Neighbors’ constitutional claims. The court dismissed Neighbors’ claim under
STANDARD OF REVIEW
¶15 We review de novo a district court‘s ruling on a motion to dismiss pursuant to M. R. Civ. P. 12(b)(6). Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552. A motion to dismiss under Rule 12(b)(6) admits the allegations in the well-pled complaint. The court must consider the complaint in the light most favorable to the plaintiff in evaluating the motion. The court also must take as true all the allegations of fact contained in the complaint. Meagher, ¶ 13.
DISCUSSION
¶16 Did the District Court properly dismiss Neighbors’ public nuisance claim?
¶17 Neighbors rely on Martin v. Vincent, 181 Mont. 247, 593 P.2d 45 (1979), and Wheeler v. Moe, 163 Mont. 154, 515 P.2d 679 (1973), in arguing that the District Court improperly dismissed their public nuisance claim by looking beyond the face of the complaint. The Court in Martin determined that a court may not rely on “matters outside the allegations of the complaint” in granting a motion to dismiss. Martin, 181 Mont. at 251, 593 P.2d at 48. The district court in Martin had relied upon factual matters outside the complaint. For example, the district court determined that the brokers had failed to disclose their dual capacity as both broker and buyer based upon the brokers’ signatures on both the
¶18 Nothing in Martin, however, barred the district court from considering the applicable law when reviewing a motion to dismiss. Nothing in the District Court‘s order indicates that it looked at factual matters outside the allegations contained in the complaint. The court expressly stated in its order, “even taking all of the allegations as true and the claim as well pled,”
¶19 The plaintiffs in Wheeler filed an action against the Missoula County Sheriff, the Missoula County Attorney, and other public officials. Wheeler, 163 Mont. at 155, 515 P.2d at 680. This Court in Wheeler upheld a district court‘s dismissal of the plaintiff‘s complaint based upon the public officials’ immunity from civil prosecution in the performance of their official duties. Wheeler, 163 Mont. at 163, 515 P.2d at 684. The Court noted that the plaintiff‘s complaint contained no allegations that the public officers had been acting in any capacity other than as public officials. Wheeler, 163 Mont. at 163, 515 P.2d at 684. This Court dismissed the complaint as insufficient to support a claim. Wheeler, 163 Mont. at 161, 515 P.2d at 683.
¶20 Neighbors go astray with their argument that nothing in their complaint expressly refers to
¶21 Neighbors allege that the Ranch‘s shooting range constitutes a public nuisance. Sections
¶22 We now must review whether the District Court properly applied
¶23 This Court addressed the effect of
¶24 Nothing in
¶25 House Bill 487 added an entirely new Chapter to Title 76 to protect shooting ranges. House Bill 487 also included four amendments to other code provisions. The Legislature expressly exempted shooting ranges from
¶26 The Legislature chose not to exempt shooting ranges from the specific civil provisions regarding civil public nuisance in Title 27, Chapter 30. The Dissent posits that we should infer statutory authorization of new shooting ranges by “necessary implication” because
¶27 The test enunciated in Barnes ultimately considers whether the defendant‘s activity falls outside its statutory authority. Barnes, ¶ 25. Before considering whether the defendant‘s activity falls outside its statutory authority, however, a court must undertake a “particularized assessment” of the authorizing statute to determine whether the questioned activity even warrants protection in the first place. Barnes, ¶ 25. By requiring such a “particularized assessment,” the reviewing court ensures an “unequivocal legislative intent” expressly to or necessarily to imply authorization. Barnes, ¶ 21. The parties in Barnes did not dispute that the statute authorized the alleged nuisance—the city‘s sewage and storm drain system. Barnes, ¶ 27. The Neighbors sharply dispute, however, whether
¶29 This Court may not insert what has been omitted, or omit what has been inserted. Section
¶30 Did the District Court properly dismiss Neighbors’ private nuisance claims?
¶31 Montana law defines a public nuisance as one that affects an “entire community or neighborhood or any considerable number of persons.” Section
¶33 The District Court determined that the noise from the Ranch‘s shooting range represents a condition common to all the plaintiffs. As noted in Koll-Irvine, however, a district court should focus on the injury—whether the alleged nuisance interferes with a specific plaintiff‘s use and enjoyment of his land. Koll-Irvine, 24 Cal. App. 4th at 1041. The court should not focus on whether the condition constituting the alleged nuisance is unique to a particular plaintiff. Koll-Irvine, 24 Cal. App. 4th at 1041.
¶34 Some degree of increased noise from the Ranch‘s shooting range may present a condition common to Neighbors’ public and private nuisance claims. The injuries alleged in Neighbors’ private nuisance claims, however, are unique to each member of the group. For example, Neighbors’ private nuisance claims allege interference with the Triple D Game Farm, which supplies animals for still and cinema photography, and obstruction of Rob Rice‘s home recording studio. These injuries, including potential pecuniary losses
¶35 Did the District Court properly dismiss Neighbors’ trespass claim?
¶36 The District Court reasoned that the definition of trespass requires a person or thing to enter the property of another. The court determined that sound did not constitute a tangible thing. Neighbors contend that the modern view supports an action for trespass based upon intangible intrusions.
¶37 Neighbors point to cases from a variety of jurisdictions that recognize intangible invasions such as noise, light, airborne gases, and electromagnetic fields to support actions for trespass. See Cook v. Rockwell Int‘l Corp., 273 F. Supp. 2d 1175, 1200 (D. Col. 2003) (plutonium plume contaminants), Mock v. Potlatch Corp., 786 F. Supp. 1545, 1551 (D. Idaho 1992) (noise from plant‘s electrical generator), Elton v. Anheuser-Busch Beverage Group, Inc., 50 Cal. App. 4th 1301, 1307 (1996) (fire and smoke). All these jurisdictions have required a showing of actual physical damage, however, in bringing a trespass action based upon noise or some other intangible invasion.
¶38 The recognition of a trespass claim based upon an intangible invasion, yet requiring a showing of actual damage, maintains the distinction between trespass and nuisance. The law predicates the tort of trespass upon a party‘s right to exclusive possession of his property. Cook, 273 F. Supp. 2d at 1199; see also the Restatement (Second) of Torts, § 163, cmt. d
¶39 With respect to an intangible trespass, however, the majority of courts have reasoned that the party‘s right to exclusive possession has not been infringed. Cook, 273 F. Supp. 2d at 1200. As a result, courts generally require a showing of actual damage to support a cause of action for trespass based upon an intangible item. Cook, 273 F. Supp. 2d at 1200. We agree with the analysis employed by these courts and recognize an intangible invasion, accompanied by actual damages, to support a cause of action for trespass. The District Court failed to recognize that Neighbors may be able to establish actual damages in support of their intangible trespass claim. The District Court denied Neighbors the opportunity to develop facts and evidence sufficient to establish actual damage when it prematurely dismissed their trespass claim.
¶40 Did the District Court properly dismiss Neighbors’ attractive nuisance claim?
¶41 Neighbors argue that the anticipation of injury proves sufficient to sustain an attractive nuisance claim. Neighbors cite Montana cases where this Court has contemplated injunctions brought under nuisance theory grounded in tort. See Purcell v. Davis, 100 Mont. 480, 488, 50 P.2d 255, 256 (1935); Boyer v. Karagacin, 178 Mont. 26, 32, 582 P.2d 1173, 1177 (1978); Dutton v. Rocky Mtn. Phosphates, 151 Mont. 54, 74, 438 P.2d 674, 685 (1968).
¶43 Injunctive relief represents a principle of equity. Wells v. Young, 2002 MT 102, ¶ 12, 309 Mont. 419, 47 P.3d 809 (2002) (overruled in part on other grounds). This Court has long recognized that flexible, not cast-iron, rules govern courts of equity. State ex rel. Farm Credit Bank of Spokane v. Dist. Ct. of Third Jud. Dist. Co. of Powell, 267 Mont. 1, 24, 881 P.2d 594, 607 (1994). These rules call upon the courts of equity to adapt themselves to the exigencies of the particular case. State ex rel. Farm Credit Bank of Spokane, 267 Mont. at 24, 881 P.2d at 607.
¶44 Even though the Legislature now has codified nuisance law in Montana, nuisance theory sounds in general tort principles just like attractive nuisance. As a result, a court sitting in equity may grant injunctive relief for anticipated or potential danger under a tort claim such as attractive nuisance, as long as the plaintiff meets the requirements of an attractive nuisance claim. These requirements include: 1) an artificial condition maintained by the possessor of land in a place which the possessor knows or should know that children are likely to trespass; 2) the condition involves an unreasonable risk of death or serious bodily harm; 3) children because of their youth will be unable to discover the condition or realize the danger; 4) the utility of maintaining the condition is slight compared to the risk it
¶45 This approach comports with the statutory standard for granting injunctions. A preliminary injunction under
¶46 The Neighbors properly alleged in their complaint all the elements of attractive nuisance from Big Man. The court denied Neighbors the opportunity, however, to develop facts of an actual threat of irreparable injury. The District Court acted too hastily in dismissing the Neighbors’ attractive nuisance claim.
¶47 Did the District Court properly dismiss Neighbors’ constitutional and statutory claims?
¶48 This Court refused in Shammel v. Canyon Resources Corp., 2007 MT 206, 338 Mont. 541, 167 P.3d 886, to determine whether Article II, Section 3, and Article IX, Section 1, right to a clean and healthful environment, support a cause of action for money damages
¶49 Neighbors next claim that operation of the shooting range near an elementary school would violate Article X, Section 1(1) and (3) of the Montana Constitution. These provisions guarantee all Montanans “equality of educational opportunity,” and that “the Legislature shall provide a basic system of free quality public elementary and secondary schools.”
¶50 A similar analysis applies to Neighbors’ statutory claim. Section
¶51 Did the District Court properly dismiss Robert Hayes as a defendant?
¶52 Neighbors’ complaint alleges that Hayes initiated construction of the shooting range before selling the property to the Ranch. The complaint alleges that the noise from the operation of the shooting range forms the basis of the various claims. The complaint further alleges that this noise began simultaneously with construction of the shooting range. Thus, the complaint alleges that the nuisance—noise from shotgun blasts—began at the same time as initial construction of the shooting range. Hayes still owned the property at the start of the construction process. Neighbors allege that Hayes created the nuisance before he transferred the property to the Ranch.
¶53 Taking the allegations of the well-pled complaint as true, Neighbors properly included Hayes as a defendant. Neighbors cannot now enjoin Hayes from operating a shooting range that he no longer owns. Neighbors can seek, however, to prove that they suffered damages as a result of Hayes’ actions in creating the alleged disturbance from the shotgun blasts while he owned the property. Meagher, ¶ 13;
¶54 Section
CONCLUSION
¶55 The District Court correctly dismissed Neighbors’ constitutionally based claims and their attempts to assert a private right of action pursuant to
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
Justice Jim Rice, concurring and dissenting.
¶56 I would affirm the District Court‘s dismissal of the nuisance claims. I concur with the Court‘s resolution of all other issues.
¶58 The Court offers from the legislative history of
¶59 First, I disagree with the Court‘s assumption that the statute was meant to protect only pre-existing ranges. While parts of the statute are indeed directed toward protection of “established shooting range[s],”
¶60 To determine whether a statute “authoriz[es]” the offending act, either by “express” authorization or by “necessary implication,” Barnes explains that the issue is whether it “can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.” Barnes, ¶ 20 (quoting Hassell v. San Francisco, 78 P.2d 1021, 1022-23 (Cal. 1938)). We labeled this the “Hassell test of statutory authorization.” Barnes, ¶ 21. Under
¶61 We further explained in Barnes that, while “a statutorily authorized activity or facility cannot constitute an absolute nuisance as a matter of law, . . . nonetheless, [it] may become a qualified nuisance in fact ‘by reason of the improper or negligent manner in which it is conducted.‘” Barnes, ¶ 23 (emphasis added, citation omitted). Thus, even though the act in question cannot be challenged by way of an absolute nuisance claim, it can be challenged as a qualified nuisance claim based upon improper or negligent operation.
¶62 However, Neighbors admit they have pursued only absolute nuisance claims, for both their public and private claims, acknowledging in their briefing that “[f]or the record, the Neighbors have not made a qualified nuisance claim.” The parties’ arguments about the private nuisance claim are largely about whether the private claims have been separately pled from the public nuisance claim. However, the statutory authorization analysis set forth above applies equally to either a public or private nuisance claim.
¶63 The Court states that the statute here does not evince an “unequivocal [legislative] intent . . . to exempt shooting ranges from civil nuisance liability.” Opinion, ¶ 28. However,
¶64 Consequently, I believe both the public and private nuisance claims fail, and I would affirm the District Court‘s dismissal of those claims.
/S/ JIM RICE