                                  No.   92-346

             IN THE SUPREME COURT OF THE STATE OF MONTANA




CHARLES SCHAUBEL and EVA SCHAUBEL,
            Plaintiffs and Appellants,


ENOCH    IVERSEN and OLIVIA IVERSEN,
            Defendants and Respondents.



APPEAL   FROM:        District Court of the Seventh Judicial District,
                      In and for the County of Richland,
                      The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
            For Appellants:
                      J. Douglas Alexander; Attorney at Law, Sidney,
                      Montana
                      Robert L. Johnson, Attorney at Law, Lewistown,
                      Montana
             For Respondents:
                      Geoffrey R. Keller; Matovich, Addy         &   Keller,
                      Billings, Montana


                                 Submitted on Briefs:     December 17, 1992
                 IR    2 ?Ti3                    Decided: March 2, 1993
Justice John Conway Harrison delivered the Opinion of the Court.

     This is an appeal from the Seventh Judicial District, Richland
County, the Honorable Richard G. Phillips presiding.             Appellants
Charles and Eva Schaubel (the Schaubels) appeal from a directed
verdict and denial of their motion for a new trial.            We affirm.
     The Schaubels raise only the issue of whether the District
Court erred in applying 5         85-7-2212,   MCA, in granting its directed
verdict. However, because the Schaubels failed to specify as error
and address an independent ground on which the District Court
granted the directed verdict, we need not address this issue.
      The Schaubels sued Enoch and Olivia Iversen (the Iversens) on
the theory that they were negligent regarding the overflow of a
drainage ditch that runs approximately twenty-five to fifty feet
from the Schaubels' residence and on the theory that they were
operating a nuisance.         According to the pre-trial order, whether
the Iversens were negligent, and whether their negligence, if any,
was the proximate cause of the Schaubels' damage was to be
determined at trial. Also to be determined as an issue of law was
whether 5   85-7-2212   (2)   ,   MCA, barred the Schaubels ' claim.    That
section reads:
     85-7-2212.   Irrigation ditches            -
                                         nonliabilities.    An
     irrigation district or private person or entity owning or
     operating irrigation ditches is not liable for:
     . . .personal
     (2)           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;
     ...
     At the close of the Schaubels' case-in-chief the Iversens
moved    for a directed verdict.      After   lengthy discussion in
chambers, the District Court granted this motion based on two
reasons.     The first reason was the defense provided by   §   85-7-
2212(2), MCA.     The second reason was the Schaubelst failure to
establish a duty or breach of any duty by the Iversens or to show
that the Iversens' irrigation practices were different than would
have been practiced by a reasonable person.       The second reason
amounts to failure to establish a prima facie case of negligence.
        The Schaubels raised only the application of S 85-2-2212(2),
MCA, in their motion for a new trial, which the court denied after
briefing and oral argument.     They raised onlythat issue on appeal
also. However, as the Iversens correctly point out in their brief
to this Court, that was not the only basis on which the District
Court granted their motion for a directed verdict.
        The issue of whether the District Court erred in determining
that the Schaubels had failed to establish a prima facie case of
negligence is not properly before this Court, as Rule 4(c),
M.R.App.P.,    requires that the notice of appeal "designate the
judgment, order or part thereof appealed from."      State v. Delap
(1989), 237 Mont. 346, 351, 772 P.2d 1268, 1271.       Furthermore,
because the Schaubels did not raise the issue or argue it in their
brief, the issue is deemed waived and we need not address it.
Teesdale v. Anschutz Drilling Co. (1960), 138 Mont. 427, 431, 357
P.2d 4, 7; Hagerty v. Hall (l959), 135 Mont. 276, 283, 340 P.2d
147, 151; See also Nutter v Permian Corp. (1986), 224 Mont. 72,
                           .
727 P.2d 1338 (order denying sanctions would not be reversed where
appellant filed no brief or transcript with this Court).     "This
Court will not endeavor to review a matter when appellant has
directed no argument toward it.l1   Sands v. Nestegard (1982), 198
Mont. 421, 428, 646 P.2d 1189, 1193.
     The Schaubels argue in their reply brief that the District
Court did not specifically determine that they had failed to
establish a prima facie case; rather, the court's second enumerated
reason also referred to 5 85-7-2212, MCA, and not to another issue.
The District Court specifically stated:
     The other [reason for granting the motion for directed
     verdict] is I fail to find any evidence of any standard
     to establish the duty or any evidence of a breach of that
     duty to show that the irrigation practices were improper.
     There has been no evidence presented that the irrigation
     as practiced by the Iversens was not as would have [been]
     done by a reasonable person.
     Contrary to the Schaubelsl argument, this statement is not
unclear or ambivalent.   It speaks directly to their failure to
establish a prima facie case of negligence. There is no doubt that
the court was speaking to this issue when its statement is viewed
in light of the following:
     1.   The Schaubels sued on the theory of negligent
     irrigation practices;
     2.     The Iversens' answer denied negligence        and
     affirmatively pled lack of proximate cause           and
     contributory negligence;
     3. The Iversens raised the issue of proximate cause in
     their motion for summary judgment and the Schaubels
     responded to that issue;
     4. The Iversens raised the issues of proximate cause and
     comparative negligence in their trial brief and the
     Schaubels squarely addressed negligence in their trial
    brief;
    5. The pretrial order specifically raised the issue of
    negligence as a matter to be decided a t t r i a l ; and
    6 . The Iversens stated that their motion for a directed
    verdict was based on the arguments set forth in their
    trial brief and motion for summary judgment and
    specifically cited the Schaubels' failure to establish
    proximate cause.
    The record shows that negligence and whether the Schaubels
could establish the elements were overriding issues in this case.
Furthermore, a small sample of the arguments found in the
transcript    the hearing     the motion for     directed verdict
reveals that the argument focused mainly on the negligence issue
and that the Schaubelst counsel clearly addressed that issue.
                                      . .
    MR. JOHNSON: [Schaubelslcounsel] , we have certainly
    established control on the part of the plaintiffs --
    excuse me, the defendants, and we've certainly
    established causation, As a matter of fact, we've
    established something a good deal more than negligence.


    MR. KELLER: [Iversens* counsel]  ...   There has been no
    proximate cause established between the 38.5-acre
    drainage and the building up of the silt as a proximate
    cause, a "but formt example, in the ditch that backed up
    the water.   . . .  What there has been is testimony,
    uncontroverted, that the Bureau of Reclamation or the
    Board of Control has the duty of maintaining that
    drainage ditch.  ...  There's been no evidence presented
    that there was any foreseeable consequence as a result of
    any actions. So I think that the proximate cause link is
    necessary for a finding of negligence. It is totally
    absent and something that warrants a granting of the
    motion for directed verdict.


     THE COURT:  ... I have absolutely no evidence that any
     of the practices of Iversens are negligent in their
     farming operation. I have no evidence that they used too
     much water. I have no evidence that the silt i s not
     other than normal,
    THE COURT:   I don1t have any evidence that they have
    violated any standard of proper farming in terms of their
    operation in the irrigation that they've done.


    .    JOHNSON:
     determine
                       . . or Now, a failure tofor the jury to
                  whether
                            .
                               not
                                   surely it's
                                                alleviate that
     problem with knowledge of it is negligence.
    We need not belabor the paint any longer.       The Schaubelsl
failure to allege error in this independent, sufficient, clearly
articulated ground for granting the Iversensl motion for a directed
verdict constitutes a waiver of that claim.         As this is an
independent ground on which the directed verdict can stand, w e
affirm the District Court's grant of the directed verdict and
denial of the motion for a new trial.
     Af finned.
                                     March 2, 1993

                             CERTIFICATE OF SERVICE

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


J. Douglas Alexander
ALEXANDER LAW FIRM, P.C.
P.O. Box 1270
Sidney, MT 59270


Robert L. Johnson
Attorney at Law
Suite 507 Montana Building
Lewistown, Montana 59457




Geoffrey R. Keller
MATOVICH, ADDY & KELLER, P.C.
225 Petroleum Building
2812 First Ave. North
Billings, MT 59101




ED SMITH
CLERK OF THE SUPREME COURT
