Jeffers v. Montana Power Co.
| Decision Date | 30 June 1923 |
| Citation | 217 P. 652,68 Mont. 114 |
| Parties | JEFFERS v. MONTANA POWER CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; Jos. C. Smith, Judge.
Action by J. B. Jeffers, revived in the name of Susie L. Jeffers, as executrix, against the Montana Power Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.
M. M Duncan, of Virginia City, and Pray & Callaway, of Great Falls, for appellant.
L. O Evans, J. V. Dwyer, D. M. Kelly, and W. B. Rodgers, all of Butte, and Geo. R. Allen, of Virginia City, for respondents.
HORSKY District Judge (sitting in place of CALLAWAY, C.J disqualified).
Since the trial of this action in the district court, the plaintiff, J. B. Jeffers, has died, and Susie L. Jeffers, his wife, as executrix of the last will and testament of J. B Jeffers, deceased, has been substituted as party plaintiff in his stead. Appeal from a judgment following a directed verdict in favor of the defendants. This is an action for damages to plaintiff's property and for equitable relief by way of injunction to permanently restrain the defendants and their servants, etc., from maintaining and operating a certain dam known as the Hebgen dam in the manner set forth in the complaint.
In his second amended complaint, plaintiff alleges that he was the owner of certain lands in the Madison valley, together with buildings thereon, which he had occupied for several years as his home; that the lands were valuable for raising agricultural crops and live stock and were so used by the plaintiff during his occupancy thereof; that there is situated upon the Madison river in Gallatin county, Mont., what is known as the Hebgen dam, constructed across and in said Madison river for the purpose of damming up and storing large quantities of water; that the defendant, Montana Power Company, which for convenience will hereinafter be designated as the Power Company, is the owner of power dams situated on the Madison and Missouri rivers, together with certain hydroelectric generating plants, which it operates by means of the power furnished by the water stored in the dams; that a certain corporation known as the Montana Reservoir & Irrigation Company, hereinafter called the Reservoir Company, was a subsidiary corporation of the Power Company and that the record title to said Hebgen dam and reservoir is in the name of the Reservoir Company. The complaint then gives the total capitalization of the Reservoir Company and alleges that the Power Company owns all of the capital stock of the Reservoir Company with the exception of five shares, which stand in the name of its five directors, each of whom has one share for the purpose of qualifying him as a director of the Reservoir Company; that at all times the Power Company has dominated, controlled, and directed the policy, operation, and management of the Hebgen dam; and that at all times the defendant Frank M. Kerr has been vice president and general manager of the Power Company and likewise general manager of the Reservoir Company. It is further alleged that the Hebgen dam and reservoir was constructed, maintained, and used by the Power Company, through its subsidiary, the Reservoir Company, for storing water for generating power and releasing the water when the Power Company desires to manufacture power in excess of what can be furnished by the natural flow of the Madison and Missouri rivers; that the defendant Kerr in his capacity as general manager of both companies has charge and control over the operation and method of operation of the Hebgen dam and the manipulation of the waters of the Madison river flowing through and out of the Hebgen dam; that the defendant Dawson was employed by the Power Company as superintendent and managing agent of the company at the Hebgen dam under the supervisory direction and control of Kerr; that Dawson had immediate physical control of the manipulation of the flow of the river passing through the dam; and that the defendants were acting in concert and engaged in carrying out the plan and operation of the dam devised by the defendant company.
It is then alleged that the lands of the plaintiff are situated upon a low bottom bordering upon the east bank of the Madison river down stream from said Hebgen dam and so lying that when the waters of the river overflow the east bank they naturally flow upon plaintiff's land; that "during the months of January, February, and March, 1917, the natural flow of said water in said Madison river was at, or slightly below, normal; that during said months there were periods of freezing weather, during which periods there was a rapid and constant formation of ice in said Madison river; that during said months water was released from said Hebgen dam by defendants, as is hereinafter mentioned, for power purposes only, and the same was used by the defendant, the Montana Power Company, in the operation of its power plants; and the defendant Power Company directed the release thereof that it might use the said waters for the purpose of generating hydroelectrical power, and the waters of the said Hebgen dam were released only upon the orders and at the direction of the defendant, the Montana Power Company, through its general manager, the defendant Kerr, and not otherwise; that the said defendant Kerr, and by his orders the defendant Dawson, operated said Hebgen dam and said power dams during said months and particularly during said periods of freezing weather, in such manner as to discharge at various times, in said river, large quantities of water, thereby greatly and suddenly increasing the flow of said river over the natural flow thereof, and causing unnatural fluctuations in the flow of said river, and as a consequence thereof shore ice formed in said river high upon the banks thereof, and the same became broken up and, together with slush ice which was then flowing in said river, were caused to form 'jams' or ice dams in said river; that the storage of water by the Hebgen dam, as aforesaid, was so affected, regulated, and controlled by said defendants Kerr and Dawson that sometimes, and within the time hereinbefore specified, the flowage of the water in said river below said dam would be greatly increased above the normal flow of said river, as aforesaid, and through such a practice the ice bodies formed during the winter months in freezing weather, as aforesaid, were largely in excess of such as would have been formed if the said river had during such time been permitted to flow at its normal natural state, and at such times wherein great quantities of water were released from said dam into said river, as aforesaid, ice bodies were formed in many places along the channel thereof and near the lands of plaintiff hereinabove described, and when the said flow of said river was increased, as aforesaid, the channel of said river at such places was rendered incapable of carrying water and ice flowing down said river, and jams and ice dams were formed in said river as aforesaid; that, by reason of the foregoing, the waters flowing in said river were forced out of the natural channel thereof, and under the soil, along and away from the banks thereof and overflowed the banks of said river and said waters flowed through, over, and upon the lands of plaintiff hereinabove described, greatly damaging the same and injuring and destroying the plaintiff's personal property thereupon." The complaint then describes in detail the damages sustained by the plaintiff.
It is further alleged that this condition was proximately caused by the operation of the dam by the defendants in the manner alleged and would not have occurred but for such operation of the dam; that if the waters of the Madison river are permitted to flow in the channel thereof in their natural course and way, and without interference upon the part of the defendants, the plaintiff in the future will not be subjected to such injury and damage and will be able to enjoy his lands and the possession and use thereof without disturbance or molestation or injury, as he did prior to the construction of the dam; that if defendants are permitted to continue their course of operation it will result in plaintiff's land being flooded and damaged from time to time; that the dam is maintained by the Power Company solely for storage purposes and during the winter time for the purpose of generating power and for no other purpose, and that if it is used at all for such purposes during the winter time it must be for power purposes, and the release of large quantities of water during and in freezing weather when large quantities of power are needed in the company's business, so that if defendants are permitted to operate the dam in the winter months the plaintiff's property will continue to be damaged, and that the operation of the dam when so operated is a nuisance; that adequate relief in damages cannot be obtained by the plaintiff, and that unless defendants are restrained a mutiplicity of suits for damages by plaintiff will become necessary, and that plaintiff will be deprived of his property without due process of law and without compensation first being paid, as required by the national and state Constitutions.
In his prayer the plaintiff asks that an order to show cause be issued directing the defendants to appear and show cause why the defendants and its and their servants, etc., should not be restrained and enjoined during the pendency of the suit from maintaining and operating said dam as above set forth and enjoining and restraining the defendants from interfering with the natural flow of the Madison river; that upon final hearing of the cause said Hebgen dam be declared a nuisance and said injunction be made permanent, and that plaintiff have...
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