                                      No. 87-62
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        1988


THE STATE OF MONTANA, ACTING BY AND
THROUGH THE DEPARTMETN OF HIGHWAYS OF
THE STATE OF MONTANA,

                      Plaintiffs and Respondents,
         -vs-
THOMAS M. FEENAN and ROBERT G. FEENAN, as
tenants in common, JANE DOE FEENAN, as wife
of THOMAS M. FEENAN; JANE ROE FEENAN, as wife
of ROBERT G. FEENAN,
                      Defendants and Appellants.


APPEAL FROM:          The District Court of the Eleventh Judicial District,
                      In and for the County of Flathead,
                      The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:

                      McGarvey, Heberling, Sullivan & McGarvey; Allan M.
                      McGarvey argued, Kalispell, Montana
         For Respondent:
                      W. D. Hutchison argued, Dept. of Highways, Helena,
                      Montana


                                        Submitted:               October 27, 1987
                                          Decided:               March 25, 1988

Filed:     ?--   ,.       ? ;t   ->
                                                   _,- - . _ " - ~ ~ " - '
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.



      This action arose from a condemnation of appellants'
property which adjoins U.S    Highway 40 which is now U.S.
IIiqhway 2 near Columbia Falls, Montana. The Feenans appeal
from the judgment of the District Court, Eleventh Judicial
District, Flathead County.     Judgment was entered after a
seven day trial in which the jury awarded appellants $16,500
for 2.04 acres of land as "damages for property taken."   The
jury awarded Feenans nothing for "damages or depreciation    in
the market value of the remaining property."
     We reverse and remand for retrial.
     The issue presented for our review in this appeal       is
whether the District Court properly instructed the jury as   to
the application of the common enemy doctrine to the State    of
Montana as condemnor.
     The Feenans own property on both sides of U.S. Highway
2. In 1981, 2.04 acres of a 240 acre tract were condemned in
order to expand the road from two to four lanes.     The 240
acre tract was being used for agricultural purposes on the
date of taking, but had been appraised as suitable for
residential use with commercial potential. The Feenans claim
that flooding caused by the construction of the new highway
has rendered the remainder of their property which borders on
the new highway unsuitable for commercial use. They wish to
recover damages for these lands. Most facts in this case, as
to the cause, effect and extent of flooding, are disputed by
the parties.
     The Feenan property is located approximately $ mile west
of Trumbull Creek where the creek crosses the highway. On
the north side of the highway there was a barrow pit which
bordered the Feenan property.   In May, 1979, Trumbull Creek
flooded in a 50 year magnitude flood.        The floodwaters
exceeded the carrying capacity of the barrow pit, causing
considerable flooding on the Feenan property north of the
highway.     South of the highway, the creek had been
artificially channeled.   The southern creek bed had become
constricted with the growth of vegetation over the years.
Each party furnished expert testimony by hydraulic engineers.
The experts testified that the flow of water in Trumbull
Creek south of the highway was and is insufficient to carry
the estimated 50 year floodwaters either before or after
construction of the new highway. The Feenan property south
of the highway was not affected by the 1979 floodwaters.
     At the time of the 1979 flood, the State cut through the
old highway to the land south of the highway, diverting the
floodwaters north of the highway to the land south of the
highway.   These cuts were later replaced by culverts which
the Feenans allege substantially reduced the potential
flooding of the Feenans' property north of the highway, while
still not affecting their southern land.
     In constructing the new, expanded highway in 1984, new
culverts were put in new locations under the road. Also one
large culvert was replaced, rerouting an old culvert which
bent at a right angle under the highway with a larger,
straight one.    The new culvert empties directly into the
southern channel of Trumbull Creek, allegedly causing erosion
to the creek's western bank and increasing the danger of
flooding on the Feenan property south of the highway. The
barrow pit on the northern edge of the old highway was
replaced by a shallow ditch, allegedly increasing the chances
that future floodwaters will extend further north on the
Feenans' northern property.     However, the State ' s expert
testified that the new culvert would adequately carry the 50
year floodwaters from the north side of the highway to the
south side, eliminating flooding on the northern side.
     Trumbull Creek has not flooded the property in question
since the four lane highway was constructed, but the Feenans
contends that the value of their commercially valuable land
has depreciated due to construction of U.S. Highway 2 and the
consequential future flooding of their property. The Feenans
allege that they are entitled to damages for their property's
devaluation.
     Appellants do not argue with the condemnation amount of
$16,500 awarded to them by the jury. They contend that they
are also entitled to compensatory damages for the depreciated
value of their property caused by flooding which was
exacerbated and altered by the construction of U.S. Highway
2.    They argue that the doctrine of "common enemy" and
"reasonable   construction,"   which    are   applicable   to
neighboring private landowners, cannot be used to limit
liability of a state agency from its constitutional duty to
pay just compensation for property taken or damaged in the
exercise of its power of eminent domain. Art. 11, $ 29, 1972
                                                   ?
Montana Constitution.
     The common enemy doctrine provides that a landowner is
not liable for vagrant surface waters which cross his land
and go onto his neighbor's land.    That water is the common
enemy of both landowners. Roop v. Anaconda (1972), 159 Mont.
28, 494 P.2d 922. In diverting such waters, the landowner is
limited to reasonable care in avoiding damage to adjoining
property. O'Hare v. Johnson (1944), 116 Mont. 410, 153 P.2d
888.
     The land in question was appraised by appellants' expert
as worth $6,600 to $7,500 per acre before flooding. After
taking, due to flooding restrictions, the appraiser estimated
the land to be worth only $2,000 per acre.
     Appellants specifically argue that two jury instructions
offered, but not given by the court deprived them of
presenting their contentions and possible jury argument on
the instructions.     See Tacke v. Vermeer ~anufacturing Co.
 (Mont. 1986), 713 P.2d 527, 43 St.Rep. 123.
      Instruction D-25 was offered by the Feenans for the
purpose of instructing the jury as to a landowner's duty to
their neighbors when constructing ditches or altering the
flow of vagrant surface waters to alleviate flooding caused
by highway reconstruction. D-25 read:
      An uphill landowner owes no duty to his downhill
      neighbor to prevent the encroachment of surface
      waters from his property onto his neighbor's.
      However, a landowner who actively diverts waters
      must act reasonably in consideration of the
      foreseeability of injury to the neighbor's property
      and the amount of injury thereto. The law does not
      countenance the principal that one tract of land
      may be reclaimed at the expense of the destruction
      of another without just compensation.
     The court read all but the last sentence of this
instruction to the jury. Appellants contend that by removing
the last sentence of this instruction, the court erroneously
instructed the jury that any landowner, including a
condemning agency, could take any reasonable measures to
divert floodwaters without paying just compensation.
     The court then refused to read the Feenans' proposed
instruction no. D-28, on the basis that D-25 covered the
Feenans' contentions relating to the flooding issue.
     The Feenans' proposed instruction no. D-28 read:
     You are instructed that if reconstruction by
     Plaintiff has caused a condition which has or will
     produce intermittent but inevitable recurring
     flooding,   then   Defendants  should   be   justly
     compensated by said Plaintiffs, or Plaintiff for
     the depreciation if any, to the fair market value
     of Defendants' property resulting therefrom.
    Appellants allege that due to these erroneous omissions
in the instructions presented to the jury, the jury ignored
the loss in fair market value of the Feenans' property upon a
finding that the State's highway construction and divergence
of the floodwater was reasonable. We agree with appellants1
argument.
     Art. 11, § 29 of the Montana Constitution states:
     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.. . .
     This clause of our Constitution distinguishes land sales
from condemnation proceedings. It distinguishes a sale
between private landowners from a "taking" between a
condemning agency and a private landowner.
     The leading Montana case which comes closest to
addressing the issue at hand is State Highway Commission v.
Biastoch Meats, Inc. (1965), 145 Mont. 261, 400 P.2d 274. In
Biastoch, the State condemned private property around a meat
packing plant to build a highway. The resulting construction
eliminated a drainage channel, completely blocking the
natural flow of a creek. The new channel was diked causing a
flood basin that inundated the packing plant.      This Court
held that the State acted unreasonably in this instance and
the Biastocks were awarded compensation not only for the
condemned land but also for the value of their business.
     The State contends that language in Biastoch extends the
application of the common enemy doctrine to condemning
agencies.   We disagree.   The relevant language in Biastoch
cites OIHare v. Johnson (1945), 116 Mont. 410, 153 P.2d 888.
OIHare cites language which allows a landowners to change the
flow of water on his property as long as it is not done with
"malice or negligence."   Newton v. Weiler (1930), 87 Mont.
164, 286 P. 133. We do not see how malice or negligence is
relevant in this context, but hold as accurate as a matter of
law the premise that " [tlhe law does not countenance the
principle that one tract of land may be reclaimed at the
expense of the destruction of another without compensation"
(Cite omitted.) O'Hare, 116 Mont. at 418, 153 P.2d at 891.
Although the Feenans' land is not being destroyed by the
construction of the highway, there is evidence that periodic
flooding reduced its value.      The State, as a condemning
agency, is held to a standard of paying just compensation for
land when the diversion of vagrant surface waters causes
damage to private lands.
     Jury instructions given by the District Court did not
adequately   state   the  applicable   law   in this    case.
Instruction no. D-25 was so confusing that it should not have
been given. Instruction no. D-28 should have been given. We
hold that failure to give no. D-27 was reversible error.
     Reversed and remanded for a


We Concur:


,     Chief Justice
Mr. Chief Justice J. A. Turnage, dissenting:
      Today the majority chooses to ignore the record, rele-
vant Montana precedent and a jury's finding following a
seven-day trial.     In doing so, the majority reverses the
jury's finding based on the District Court's handling of two
jury instructions.     The objectionable instructions merely
serve the majority as a conduit to rule on this issue as it
pleases. Accordingly, I dissent.
      A review of the record reveals that, sometime prior to
1979, Trumbull Creek was relocated from its natural banks to
its present location.      Trumbull Creek's present man-made
channel is not sufficient to contain the Creek during a "50
year flood."     Such a flood occurred in 1979.      Trumbull
Creek's carrying capacity is further hampered by excessive
vegetation growth along its banks.    Experts for both sides
agree that Trumbull Creek's carrying capacity is limited to
90 to 120 cfs. In 1979, the spring runoff, estimated at 330
cfs., was much greater than Trumbull Creek's carrying capac-
ity, causing the creek to flood.
      Unfortunately for appellant State of Montana, Highway
40 runs through the above-mentioned flood plain. The State
responded to the 1979 flood, during highway reconstruction in
1984,   by placing four culverts under Highway 40 and by
replacing Trumbull Creek's passage under the highway with a
larger culvert. The State's action caused Trumbull Creek and
its flood waters to pass under the roadway. At trial the
State argued that its action was not the cause of the flood-
ing; rather, it was the proper and reasonable action in
response to the flooding.     The jury agreed that the State
acted reasonably.    See OIHare v. Johnson (1944), 116 Mont.
410, 419, 153 P.2d 888, 891.
      Appellants argue that the "common enemy doctrine" and
"reasonable   construction,"    which   are   applicable   to
neighboring   private   landowners, cannot be   used   to   limit
liability of the state from its constitutional duty to pay
just compensation for property taken or damaged through
eminent domain. The majority, without so stating, apparently
agrees with appellants' contention.
      The majority's position should fail for the following
reason.   In its opinion the majority states: "In diverting
such waters, the landowner is limited to reasonable - -in
                                                      care
avoiding damage - adjoininq p roperty.
                 to                        0'Hare v. Johnson
(1944), 116 Mont. 410, 153 P.2d 888."      The majority then
distinguishes State Highway Commission v. Biastoch Meats,
Inc. (1965), 145 Mont. 261, 270, 400 P.2d 274, 278-279, which
holds that the common enemy doctrine allows a condemning
agency to change the flow of water on his property as long as
it is not done with "malice or negligence. "     The majority
conveniently ignores that Biastoch is based on OtHare.
      Next, the majority holds the District Court erred when
it amended jury instruction D-25 to the point that D-25 "was
so confusing that it should not have been given."
      Instruction D-25, as amended, provides:
           An uphill landowner owes no duty to his
           downhill neighbor to prevent the en-
           croachment of surface waters from the
           property onto his neighbor's. However,
           a landowner who actively diverts waters
           must act reasonably in consideration of
           the foreseeability of injury to the
           neighbor's property and the amount of
           injury thereto.
Appellants did not object when the District Court gave amend-
ed Instruction D-25.   After reading D-25, it is my opinion
that the majority is overreaching to find reversible error.
      The majority also objects to the District Court's
refusal to give jury instruction D-28.     Instruction D-28,
offered by    appellants without citation of authority,
provides :
           You are instructed that if reconstruc-
           tion by Plaintiff has caused a condition
           which has or will produce intermittent
           but inevitable recurring flooding, then
           Defendants should be justly compensated
           by said Plaintiffs, or Plaintiff for the
           depreciation if any, to the fair market
           value of Defendants' property resulting
           therefrom.
      Instruction D-28 was more properly stated by Instruc-
tions D-3 and D-4, which provide:
           [Instruction D-3.1   The Constitution of
           the State of Montana provides that
           private property shall not be taken or
           damaged for public use without just
           compensation to the full extent of the
           loss being paid to the owners.
          [Instruction D-4.1  You are instructed
          that you should award the defendant as
          just compensation:
          1. the correct fair market value of the
          property actually taken; and,
          2.   if the property actually taken is
          part of a larger parcel, the deprecia-
          tion in current fair market value, if
          any, which will accrue to the portion
          not taken by reason of its severance
          from the portion taken by the construc-
          tion of the highway in the manner pro-
          posed by plaintiff.
      Instruction D-3 instructed the jury that respondent is
liable for private property taken without just compensation.
Instruction D-4 instructed the jury that just compensation
includes fair market value and land value depreciation.
Instructions D-3 and D-4 properly instructed the jury based
on the Biastoch-O'Hare rule and Article 11, Section 29, 1972
Mont. Const.
      In summary, it is my opinion that the majority has
sought to ignore Montana precedent that the common enemy
doctrine applies to condemning agencies. The issue at hand
is now being sent back to the District Court to speculate
what damages appellants might incur when the next " 5 0 year
flood" brings its runoff.
      I must disagree with the majority's decision to ignore
the record, relevant Montana precedent and the jury's
finding.




Mr. Justice L. C. Gulbrandson:
      I concur in the foregoing dissent of Mr. Chief Justice
Turnage.
