Marty v. State
| Decision Date | 21 December 1989 |
| Docket Number | No. 17733,17733 |
| Citation | 786 P.2d 524,117 Idaho 133 |
| Parties | Joe MARTY and Ella M. Marty, husband and wife, Carl W. Lundholm and Gladys I. Lundholm, husband and wife, Keith Rady and Deanna Rady, husband and wife, Paul Gunderson and Deoine Gunderson, husband and wife, Duane Lundholm and Ramona Lundholm, husband and wife, Plaintiffs-Appellants, v. STATE of Idaho, a body politic; Flood Control District 5; Walter Speelmon; Water District 31; Donald Shenton; Garth Soderquist; Holley Water Users Association, a forfeited Idaho corporation, by and through its statutory trustees Lamoyne Barney, Rex Coleman, and J. Kay Byrne; Jackett Canal Company, an Idaho corporation; Level Canal Company, a forfeited Idaho corporation by and through its statutory trustees, Werner Schmitt, and Frank Siddoway; Owsley Canal Company, an Idaho corporation; Independent Water Users of Mud Lake, Inc., an Idaho corporation; Jay Furniss; Art Dobson; Joe Potter; John Doe Corporations I Through X; John Does I Through XX, Defendants-Respondents, and Lewis Bezold; Jefferson County, a political subdivision of the state of Idaho, Defendants. |
| Court | Idaho Supreme Court |
Ling, Nielsen & Robinson, Rupert, for plaintiffs-appellants. Mark A. Ingram, argued.
Jim Jones, Atty. Gen., Boise, Curt R. Thomsen, Sp. Deputy Atty. Gen., argued, Idaho Falls, for the State.
Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendants-respondents, Water District # 31, Flood Control District # 5, Level Canal Co., Schmitt, Siddoway, Furniss, Potter, Shenton, Soderquist, and Speelmon. Curt R. Thomsen, argued.
Anderson, Pike and Bush, Idaho Falls, for defendant-respondent, Art Dobson, Douglas R. Nelson, appeared.
Racine, Olson, Nye, Cooper and Budge, Pocatello, for defendant-respondent Jacket Canal Co. William D. Olson, appeared.
Imhoff and Lynch, Idaho Falls, for defendant-respondent Owsley Canal Co. Stephen McGrath, appeared.
St. Clair, Hiller, Wood and St. Clair, Idaho Falls, for defendants-respondents, Holley Water Users, Lamayne, Coleman and Byrne. Richard T. St. Clair, appeared.
This is a flood liability case. It involves the flooding of farmland near Mud Lake in 1984 and 1985. The owners of this farmland (the landowners) sued various governmental agencies, officers and employees (the governmental agencies) and local canal companies (the canal companies) and water users (the water users) seeking damages and injunctive relief. The issues we address in this opinion are (1) whether the governmental agencies were immune from liability, (2) whether the landowners were entitled to pursue their claim for inverse condemnation, (3) whether the canal companies and the water users breached a duty they owed to the landowners to prevent the flooding and (4) whether the landowners were entitled to an injunction. We affirm the summary judgments as to the immunity of the governmental agencies, as to the lack of any breach of duty by the canal companies and the water users and as to the denial of an injunction. We reverse and remand as to the summary judgment granted against the landowners on their claim for inverse condemnation.
THE BACKGROUND AND PRIOR PROCEEDINGS.
The Mud Lake area is a terminal basin without a natural drainage outlet, comprised of the presently diked area of Mud Lake and adjacent low-lying farmlands. In the 1920's the early settlers began diking the lake in order to reclaim productive agricultural lands from the marshes and to provide storage for irrigation. Prior to the diking of Mud Lake, the lands now owned by the landowners had been subjected to periodic flooding because they were located in a 100-year flood plain. The area involved in this case and some of the pertinent features are portrayed in the following map:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On June 3, 1983, the board of commissioners of Jefferson County declared the area surrounding Mud Lake to be a flood emergency area and requested assistance from the governor of the State of Idaho. On June 6, 1983, the governor declared the existence of a state of extreme emergency because "excessive runoff and spring rains have seriously weakened the Mud Lake dikes" and the failure of these dikes would result in "serious flooding to approximately forty residents and several thousand acres of land" and "endanger the lives and property of the citizens of Terreton." All agencies of state government were required by the proclamation "to take action ... to arrest or alleviate the conditions perpetuating the state of extreme emergency."
Unusually heavy rainfall in the spring of 1984 combined with the already saturated water table from 1983 to create a flow into the Mud Lake water system that had not occurred since 1923.
In a combined effort the governmental agencies, the Army Corps of Engineers, the canal companies, the water users and numerous volunteers responded to the impending flood. The Idaho Department of Water Resources (IDWR) coordinated this effort. Action was taken to: (1) strengthen and increase the height of the Mud Lake dike, which encloses the lake on the south, southeast and southwest; (2) divert excess water from Mud Lake through the use of the Owsley Canal Co. pump station; (3) divert water from Camas Creek at the Lone Tree structure; (4) cap all artesian wells that flow into the lake; (5) retain inflow from Camas Creek and flood waters at the wildlife refuge behind the Bybee structure; and (6) cut the Dobson ditch to relieve the pressure on the Bybee structure.
On June 12, 1984, the board of commissioners of Jefferson County declared the existence of a state of emergency because of the flooding of land adjacent to Mud Lake, including that of the landowners. The governor of the state of Idaho did the same on June 14, 1984.
Flooding of the farmland of the landowners commenced in April 1984. Water remained standing on these lands throughout the year. Similar flooding occurred in 1985.
In late 1985 the landowners filed suit seeking damages and injunctive relief against the governmental agencies, the canal companies and the water users. The landowners based their claims for damages on theories of trespass, strict liability, negligence and inverse condemnation. They alleged that their farmland had been flooded as a result of the actions and decisions of the governmental agencies, the canal companies and the water users, including the failure to construct a spillway to prevent the flooding of the landowners' farmland.
The governmental agencies, the canal companies and the water users moved for summary judgment, denying that there was any basis for liability under the theories advanced by the landowners and that their actions and decisions were immunized under several Idaho statutes. The trial court granted summary judgment dismissing all of the claims of the landowners. The landowners appealed.
The governmental agencies assert that they were immunized from liability to the landowners under I.C. § 42-1717. The trial court agreed. We agree that all of the governmental agencies except the flood control district are immunized in this case under I.C. § 42-1717. 1 By the terms of this statute the State of Idaho, IDWR and their agents or employees are given immunity from damages caused through measures taken to control and regulate a dam or to protect against failure of any dam during an emergency.
The Mud Lake dike is a "dam" as defined in I.C. § 42-1711(b), since it has an impoundment capacity of more than fifty acre feet.
All of the actions or decisions of IDWR that are alleged to have contributed to the flooding in 1984 and 1985 can be characterized as measures taken to control and regulate the dike or to protect against failure of the dike during an emergency.
For the purpose of ruling on the motions for summary judgment, the trial court assumed that some of the flooding of the landowners' land resulted from the lack of any system for drainage of an inflow of water into Mud Lake in excess of its capacity. A 1981 report of a safety inspection of the Mud Lake dike conducted by IDWR concluded that the dike did not contain a low level outlet nor a spillway capable of passing or storing the 100-year flood with freeboard required by the state's rules for new dam construction. The report noted that due to the character of the dike and downstream conditions, a low level outlet or a spillway might not be warranted. The report recommended a study to determine where either could be provided. Early in 1984 IDWR in conjunction with Flood Control District No. 5 evaluated the practicality of relying on a spillway to control the level of Mud Lake. IDWR concluded that due to the lack of adequate ponding areas around the lake, a spillway would not have much value.
I.C. § 42-1717 does not require existing dams to comply with the rules for new dams. It requires inspection of dams by the director of IDWR or at his direction. The statute specifies that if the director concludes that a dam is unsafe, the director may order the dam removed or repaired. If the owner of the dam does not remove or repair it, the director may draw off the water from behind the dam.
Here, following the 1981 inspection, the director did not conclude that the Mud Lake dike was unsafe because of the lack of a spillway or low level outlet. Therefore, there was no occasion for the director to order the dike to be removed or repaired. Whether a spillway or a low level outlet was necessary for the safety of the dike was a decision the legislature left to the judgment of the director. There was no mandatory requirement that either a spillway or a low level outlet be installed in an existing dam, only that new dams were required to have them. This was made clear by the rules and regulations of IDWR concerning the safety of dams. As they existed in 1984 and 1985, they provided: "The...
To continue reading
Request your trial
-
In re WD170, 35175.
...§ 42-602. To fulfill this duty IDWR is authorized to create water districts throughout the state. I.C. § 42-604. Marty v. State, 117 Idaho 133, 138, 786 P.2d 524, 529 (1989). Given that IDWR was created specifically to manage water within Idaho, through water districts, a construction of I.......
-
Marty v. State
...for inverse condemnation and injunctive relief. It was from these orders that the first appeal was taken. In Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989) (Marty I ), we ruled: (1) that all the governmental agencies except the flood control district were immune from liability under I.C......
-
Inama v. BOISE COUNTY EX REL. BD. OF COM'RS
...seq. (1997). Section 46-1017 was intended by the legislature to codify a version of the doctrine of public necessity. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989). Insofar as is relevant in this case, the statute provides that no political subdivision of the state, "engaged in any .........
-
S. Griffin Const., Inc. v. City of Lewiston
...preparedness, response, and recovery by all state agencies . . . ." I.C. §§ 46-1003(2),(6) and (7). A & R cites to Marty v. State, 117 Idaho 133, 143, 786 P.2d 524, 534 (1989), in support of the position that the Act is similar to the common law doctrine of public necessity and that the des......