Rauser v. Toston Irr. Dist.

• Decision Date: 30 June 1977
• Docket Number: No. 13243,13243
• Citation: 172 Mont. 530,565 P.2d 632,34 St.Rep. 496
• Parties: George RAUSER and Phyllis A. Rauser, husband and wife, Plaintiffs and Respondents, v. The TOSTON IRRIGATION DISTRICT, Maurice L. Hunsaker, Frank J. Slifka, and Samuel F. Kirskey, the members of the Board of Commissioners of said Toston Irrigation District, Defendants and Appellants.
• Court: Montana Supreme Court

Page 632

565 P.2d 632

172 Mont. 530

George RAUSER and Phyllis A. Rauser, husband and wife, Plaintiffs and Respondents, v. The TOSTON IRRIGATION DISTRICT, Maurice L. Hunsaker, Frank

J. Slifka, and Samuel F. Kirskey, the members of

the Board of Commissioners of said

Toston Irrigation District,

Defendants and Appellants.

No. 13243.

Supreme Court of Montana.

Submitted March 17, 1977.

Decided June 6, 1977.

Rehearing Denied June 30, 1977.

Corette, Smith & Dean, Kendrick Smith (argued), Gerald R. Allen (argued), Butte, for defendants and appellants.

Harrison, Loendorf & Poston, James T. Harrison, Jr. (argued), Helena, for plaintiffs and respondents.

Thomas A. Olson, Alvin E. Bielefeld (argued), Billings, for amicus curiae.

HARRISON, Justice.

George Rauser and Phyllis Rauser, husband and wife, brought this action in the district court, Broadwater County, against the Toston Irrigation District and members of the Board of Commissioners of that District. The complaint alleged a portion of Rausers' land was taken without compensation, and construction of the irrigation project with resultant seepage caused water to stand stagnant on approximately forty acres of plaintiffs' land situated along Warm Spring Creek. It alleged this amounted to the taking of a flood easement.

Defendant's motion to strike the individual board members as parties was granted. Trial was had before a jury and a verdict returned in favor of Rausers in the amount of $100,000.

The Toston Irrigation Project consists of the Crow Creek pump unit and a water delivery system built as a part of the Missouri River Basin Project. The land to be irrigated was to serve as a replacement for lands flooded by Canyon Ferry Reservoir. The project began in 1955 with fewer than a thousand acres under irrigation. At present it covers nearly five thousand acres.

Plaintiffs are not members of the Toston Irrigation District but their land is bounded on one side by land in the District. The acreage alleged taken is at a lower elevation than land in the District.

Each party presented expert hydrological testimony and expert valuation testimony. Plaintiffs' hydrological expert testified the source of the water on the Rauser property was to the south and east, basing his opinion on well readings taken over a substantial number of years. Along with other factors, he took into consideration the extent of irrigation in the District and the rainfall. He also read into evidence from a United States Geological Survey document entitled "Geology and Occurrence of Ground Water in Townsend Valley, Montana" the following statement:

"The application of additional irrigation water to the benchland flanking Warm Spring Creek will increase the extent of waterlogging in the bottom land unless provision is made for more adequate drainage. In this part of the valley the Tertiary sand and gravel deposits, which are mantled by permeable windblown soil, are underlain by beds of hardened clay, locally referred to as 'hardpan.' If water is applied to these lands, a gradual rise in the water table will take place. This rise will result in the increased flow of existing springs in the lower part of the valley, and new springs will appear along the slope from the benchland to the valley bottom. In this area the valley bottom is underlain by relatively impermeable fine-textured clay. The capillary fringe above the water table will rise to the surface in much of the bottom land, saline soil will develop, and the land will eventually become unproductive. Waterlogging will become more extensive if irrigation water is applied to the benchland that lies at a higher elevation than the present irrigated land unless provision is made for more adequate drainage. This condition will exist not only in the Crow Creek area but also in other parts of the valley where additional irrigation is planned."

The expert indicated his findings confirmed this prediction.

George Rauser testified the diminution of value because of the "taking" totaled $100,000. Plaintiffs' expert valuation witness testified the loss was in the range of $35,000 basing his opinion on comparable sales of three nearby parcels.

Defendant's hydrological expert testified the cause of the flooding on plaintiffs' land was the enlargement of plaintiffs' own irrigation ditch which created a barrier to the natural drainage of the land. Defendant's valuation expert placed the total loss at $26,000.

The parcel affected by the water includes the land where plaintiffs' home, shop and outbuildings are located. The United States government built and owns the physical assets of the irrigation system. Almost from the beginning of irrigation on the project, there have been negotiations between Rausers and the District about the flooding of the land and proposals to drain it. The District went so far as to draw up plans and obtain bids for a drain system, but because the bid was substantially more than expected nothing further was done.

The Toston Irrigation District appeals. We summarize the issues as these:

(1) May an irrigation district exercise the power of eminent domain on a project whose physical assets are owned by the federal government?

(2) May there be a condemnation of property without a showing of negligent design, construction, or operation of the project?

(3) Was the action barred by laches?

(4) Was the verdict supported by substantial credible evidence?

(5) Are attorney fees allowable?

(6) Was there an adequate description of the land here involved?

Issue (1). The power to condemn property is granted to irrigation districts by Montana statute, section 89-1301(3), R.C.M.1947, and states:

"(3) The board * * * shall also have power and authority to acquire by purchase, lease, contract, condemnation, or other legal means, lands (and rights in lands) for rights of way, for reservoirs, for the storage of needful waters, and for dam sites, and necessary appurtenances, and such other lands and property as may be necessary for the construction, use, maintenance, repair, improvement, enlargement and operation of any district system of irrigation works."

That the physical assets are owned by the United States government does not limit the power to condemn. Section 89-1301(7) clearly indicates substantial federal involvement is contemplated in "construction, operation, and maintenance of the necessary works for the delivery and distribution of water therefrom * * *." Defendant argues the trial court lacked jurisdiction because the physical assets are owned by the United States. This argument must fail for no efforts were made on the part of defendant to remove the case to federal court and no case authority is cited or relied upon to support defendant's position.

While the District questions whether there was in fact a taking here and the compensability of it, case law holds there can be a taking without a total physical appropriation of land. Here the District did not condemn the land, rather it caused the land to be permanently invaded by the percolation of water. Similar fact cases have been considered by the United States Supreme Court recognizing the rights of the damaged landowner. United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; 2 Nichols on Eminent Domain, Taking and Damage § 6.32.

Issue (2). Whether there may be a taking by the District without a showing of negligence in design, construction, or operation of the District?

In actions for damage for seepage the rule as stated in Fleming v. Lockwood, 36 Mont. 384, 391, 92 P. 962, and quoted in Rhodes v. Weigand, 145 Mont. 542, 549, 402 P.2d 588, 591, is:

" * * * If, in fact, the seepage occurred as plaintiff contends, it must have been the result of negligence on Lockwood's part, either in constructing or operating the ditch, since it is not contended that it was the result of inevitable accident or was caused by an act of God; and therefore the plaintiff had the burden of proof, in the first instance, to show negligence on the part of the defendant."

The District cites Fleming as authority for the fact that to have a recovery here there must be intentional or negligent acts. Fleming, a negligence case, provided for payment in the case of intentionally caused torts. The District cites Rhodes as authority, but there this Court provided for the issuance of an injunction, noting:

"The record in this cause discloses with clarity that appellant in the year 1947, again in 1961 and again, after complaint had been made to him of flooding in the year 1962, persisted in his negligent and deliberate acts."

Montana's case law does not require a showing of negligence or a theory of negligence when faced with deliberate or intentional acts. In Calvert v. Anderson, 73 Mont. 551, 555, 236 P. 847, 848 the Court held:

"It is the rule in this state that the owner of an irrigating ditch is not an insurer thereof and is liable only for damages caused by his willful acts or by his negligence in constructing, maintaining or using his ditch."

However, as we will discuss later, Fleming and Rhodes are not applicable to the facts of the instant case.

In Rhodes the court found that the rule which requires a showing of negligence was met by deliberate acts, the flooding of plaintiff's land.

The instant action is one for inverse condemnation. The 1972 Montana Constitution, Art. II, Section 29, provides:

"Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails."

An early Montana case, Less v. City of Butte, 28 Mont. 27, 32, 72 P. 140, 141, in construing this identical language in the 1889 Constitution "Private...