                             No.    91-196

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1991



CHRIS L. ALEXANDER and SUSAN M. ALEXANDER,
husband and wife; CHERYL BARNES; PHILLIP M.
DALE and MARY ANN DALE, husband and Wife;
JANET I. DOUGHERTY; JAMES H. DUNN and
ELEANOR DUNN, husband and wife; DAVID H.
KIRSCH and RHONDA L. KIRSCH, husband and
wife; JANET E. LEWIS; MATHEW G. SALMINEN
and BECKY J. SALMINEN, husband and wife;
DEBORAH M. (PRECHTL) SCOVILLE; and                           pj-
L. EDWARD WILKINSON and RUTH MAE WILKINSON,
husband and wife,                                         jBA      b

               Plaintiffs and Appellants,                 A01; 2 7 '1991
     V.

EDWARD K. McCAULEY and ANITA L.
McCAULEY, husband and wife,
               Defendants and Respondents.



APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Jefferson,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               David N. Hull, Attorney at Law, Helena, Montana
          For Respondents:
               Paul B. Smith, Attorney at Law, Boulder, Montana


                                   Submitted on Briefs:   July         2,   1991

                                               Decided:   August 2 7 ,        1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Plaintiffs appeal from the decision of the District Court of
the Fifth Judicial District for Jefferson County, granting the
defendants' motion for summary judgment.      We affirm the District
Court.
     The sole issue for our determination is whether the District
Court erred     in granting the defendants'     motion   for summary
judgment.
     Appellants in this action are homeowners in the city of
Boulder, Montana.      Edward and Anita McCauley are owners of an
irrigation ditch running from the Boulder River through the town.
The McCauleys acquired their ditch and water rights on April 14,
1988, from their predecessor, B. W. Phelan.    Edward McCauley first
diverted water from the Boulder River into the ditch on May       9,

1988.    However, Phelan had been doing so since 1946, and the ditch
had been similarly used since at least 1888.
     United States Soil Conservation Service Central Forecast
records show that between May 27 and 31, 1988, 2.55 inches of rain
fell in the Boulder vicinity.    A May 30 storm dropped 1.17 inches
of rain, the largest precipitation event in five years.    On May 30
or 31, many Boulder residents' basements flooded.        The parties
agree that the flooding resulted from subsurface seepage and not
from surface water.
        From the time that defendants acquired their water rights in
April 1988, until the flooding occurred, no work was done on the

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ditch other than normal maintenance to clear obstructions within
the ditch. On June 5 or   6,    1988, the defendants placed straw bales
at the point of their diversion of the Boulder River to increase
flow and hold the ditch banks steady while work was done on the
headgate and a culvert.        The defendants restored the headgate to
its pre-1981 level and dredged portions of the ditch on June 9,
1988.

        Water level data compiled during April to July 1988 showed a
15 to 20 foot rise in several town wells.        On June 27, 1988, an
additional valve to an outfall line was opened into the Boulder
sewage lagoon system.     The Town Administrator testified that the
water level in several sewer manholes dropped four to five feet
within one hour.      During the late evening of June 27 and the
morning of June 28, 1988, Edward McCauley shut down his ditch by
placing boards and a tarpaulin across the ditch.           The barrier
remained in place until July 7, 1988.      Water levels in many of the
affected homes went down or dissipated completely over the next few
days.
        The homeowners filed suit on July 20, 1989, alleging that
defendants negligently caused excessive water to flow through the
ditch resulting in ground saturation and the eventual flooding of
their properties.     Extensive discovery took place, and McCauleys
eventually moved for summary judgment.      Briefs were submitted, and
the District Court thereafter granted defendants' motion            for
summary judgment.    In its order, the District Court found that the

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record disclosed no genuine issues of material fact "in light of
long established legal principles of water and ditch right law of
this state."    The court stated that (1) because the situation
giving rise to the complaint existed for over 50 years, prior to
homeowners' acquisition of their property,                §    85-7-2212,   MCA,
entitled the defendants to immunity: and (2) the ditch owners are
entitled to summary judgment under the rationale of Thelen v. City
of Billings    (1989),   238   Mont.       82,   776   P.2d    528,   since the
homeowners were unable to show that the damage to their property
was proximately caused by the ditch owners. This appeal followed.
     We find that 5 85-7-2212, MCA, is dispositive of plaintiffs'
appeal.   That section reads in pertinent part:
     An irrigation district or private person or entity owning
     or operating irrigation ditches is not liable for:
     (1) personal injury or property damage resulting from
     floodwaters caused by rainfall or other weather
     conditions or acts of nature:
     (2) personal injury or property damage occurring on
     another's land and caused by water seepage that existed
     or began before the injured person first arrived on or
     obtained an interest in the land or before the damaged
     property was first placed on the land, if the seepage
     does not carry toxic chemicals onto the land   .           .     ..
     Homeowners assert that there was no seepage before the current
ditch owners overused the ditch.            However, none of the homeowners
acquired an interest in their land prior to 1970, and prior owners
in the area stated in affidavits that homes in that area suffered
from subsurface seepage as far back as 1935.                  The ditch had been
used in its present form long before 1935.              In this case, even if

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the damage to plaintiffs' basements was contributed to by defendants'
ditch, the undisputed facts establish that it was either because of
weather conditions or the same kind of seepage that had existed for
at least 5 3 years before the plaintiffs arrived or obtained an
interest in the land. Under either circumstance, plaintiffs' cause
of action is barred by 5 8 5 - 7 - 2 2 1 2 ( 2 ) ,   MCA.
      Accordingly, we affirm the judgment of the District Court.



                                                      Jfistice
                                           /
We concur:              /4




                                               5
                                                August 27, 1991

                                CERTIFICATE OF SERVICE

    I hereby certify that the following order was sent by United States mail, prepaid, to the
    following named:


    David N. Hull
    Attorney at Law
    P.O. Box 534
    Helena, MT 59624

    Paul B. Smith
    Attorney at Law
    P.O. Box 565
    Boulder, MT 59632

                                                   ED SMITH
                                                   CLERK OF THE SUPREME COURT
                                                   STATE OF MONTANA




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