                                NO, 83-487
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1984



JERRY L. SMITH and VICKI E . SMITH,

                        Plaintiffs and Appellants,


THE PAVALLI COUNTY BOARD OF HEALTH,
D O 3 MULLIN and JAY SACKS,

                        Defendants and Respondents.




APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Ravalli,
               The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

      For Appellants:
               Richard A. Weber, Jr., Hamilton, Montana
      For Respondents:
               Robert Brown, County Attorney, Hamilton, Montana
               Eoone, Karlberg & Haddon; Randy Cox, Missoula, Montana
               Garlington, Lohn & Robinson, Missoula, Montana


                               -                 -.-
                                                  -
                                                  -
                               Submitted on Briefs:    January 24, 1984
                                             Decided: April 19, 1984



Filed:




                               Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
        This case arose out of a dispute between adjacent
I-andowners in Raval-li Countv.           Appellants objected to the
installation of a septic tank and drain field on property
owned by respondent Jay Sacks.              The District Court denied
          '
a-ppellants request for a preliminary injunction and from
this order appeal is taken.         We affirm.
        In the Spring of 1983, respondent Jay Sacks applied to
the Ravalli County Health Department for a permit to con-
                                          .
struct a septic tank and drain field on real property owned
by him in the Three Mile area of Ravall-i County.              In early
April of 1983, respondent Don Mullin, the Ravalli County
Sanitarian, made      an on      site inspection to determine the
seasonal high groundwater level.              This test was done to
assure compliance with regulations promulgated by the Ravalli
County Board of Health.          These regulations require a separa-
tion of fifty-four inches between the seasonal high groundwa-
ter level and the undisturbed ground surface before a septic
tank system may be installed.            A test hole six feet deep was
dug on the Sacks' property and no water was found.                  Mullin
did find a layer of discoloration at fifty-seven inches below
the surface, which he testified indicated the seasonal high
groundwater level.         He further testified that this was a
stand.ard method of determining the groundwater level.               Based
on this test, Mullin issued an information card which allowed
Sacks to receive a permit to install the septic tank system.
The permit was issued on June 24, 1983, and construction of
the system began.
        In mid-June   appellants noticed an unusual taste in
their   water.      Also    at    that    time,   an   irrigation    ditch
overflowed partially flooding their property.         These events
caused appellants to be concerned about Sacks1 installation
of the septic tank system.       Their concerns were expressed to
the Ravalli County Eoard of Health and to the Sacks them-
selves.     The septic tank system was moved from the proposed
site to a location further from appellants1 well as a result
of discussions between appellants and the Sacks, and despite
appellants1 continuing objections, construction of the system
began.
         Between June 27 and June 29, 1983, appellants tested
the water of several wells in the area for contaminating
material.     The test disclosed that all the wells contained
coliform bacteria in small amounts, but there was no trace of
fecal bacteria.       This indicated that there was no contamina-
tion from septic tanks in the area.        At the time of the test
Sacks' septic tank had not been installed.         Fearing that the
high water level may cause contamination of the well, appel-
lants brought this action to prevent installation of Sacks'
septic system.
         A temporary restraining order was issued on July 1,
1983, restraining Sacks from placing his septic system into
operation for ten days and restraining the Board of Health
from issuing any more septic system permits in the area.
During that period of time appellants arranged for two fur-
ther measurements of the groundwater level.        On July 6, 1983,
Joseph Strasko dug a test hole on the sacks' property to
determine the groundwater level.           Strasko is a registered
sanitarian employed by the Water Quality Bureau of the Mon-
tana     Department    of   Health   and   Environmental   Sciences.
Strasko determined       that the    actual groundwater    level was
between fifty-two and fifty-six inches below the surface.
Dr. William Woessner, Associate         Professor in Hydrology at
the University of Montana, measured the qroundwater level
through a stand pipe in mid July of 1983.      He determined that
the level was approximately forty-seven and a half inches
from the surface of the ground.
        The temporary restraining order expired on July 11,
1983.     On July 14 and July 27, 1983, hearings were held on
appellants' motion for a preliminary injuction.       Documentary
and testimonial evidence was introduced at both hearings, and
briefs were filed by the parties.         On August 12, 1983, the
District Court denied appellantsr motion finding that they
had not shown their property would be injured if the injunc-
tion did not issue, and if it were injured they have an
adequate remedy at law through an action for money damages.
From this ruling, appeal is taken.
        We first note that there essentially were two temporary
restraining orders issued.     The first restrained Sacks from
placing his     septic system into operation and the second
restrained the Board of Health from issuing permits for any
septic systems i n the area of appellants' property.
                .                                         However,
both were issued for the same purpose, to prevent any possi-
ble contamination of appellants' well.        Appellants' request
to convert both to a preliminary injunction was also denied
for the same reason, that appellants had not shown irrepara-
ble harm would occur if the injunctions were not issued.
Since their denial was based on the same reason, they will be
treated    as   one   for purposes of    our discussion   in   this
opinion.
        The allowance of a preliminary injunction is vested in
the discretion of the District Court, the exercise of which
the Supreme Court will not interfere with except in instances
of manifest abuse.      Porter v. K and       S   Partnership (Mont.
1981), 627 P.2d     836, 38 St.Rep.    648.       In reviewing this

discretion, the question is whether the trial court acted,
"[Alrbitrarily without the employment of conscientious judg-
ment or exceed led] the bounds of reason, in view of all the
circumstances, ignoring recognized principles resulting in
substantial injustice."      In Re the Marriage of Jermuson v.
Jermuson (1979), 181 Mont. 97 at 100, 592 P.2d 491 at 493;

citing Porter v. Porter (1970), 155 Mont. 451, 473 ~ . 2 d538.
Injunctive relief is proper only if:
             "an act has been done or is threatened
             which will produce irrepara.ble injury to
             the party asking for such relief, and
             acts which result in a serious change of,
             or are destructive to, the property
             affected either physically or in the
             character in which it has been held or
             enjoyed, do an irreparable injury. I
                                               #




Madison Fork Ranch v. L and B Lodge Pole Timber Products
(Mont. 1980), 615 P . 2 d   900 at 906, 37 St.Rep.1468     at 1474.
The issue thus becomes whether the District Court a-bused its
d.iscretion in determining that no irreparable harm would be
done to appellants' property if the injuction did not issue.
        We find no a.buse of discretion on the facts of this
case.    We have reviewed the record carefully and find no
evidence that appellants' property will be dams-qed if the
Sacks' septic system becomes operable.            At best appellants
have only advanced speculation that sewage from the Sacks'
system would contaminate their well.
        The tests for bacteria     showed no evidence of fecal
bacteria in either appellants' or any other wells, indicating
that no sewage was leaking into their well.             The unusual.
taste of appellants' water could have come from other bacte-
ria in the soil which the tests proved were present.         Even if
there had been fecal bacteria in the water, it would have
provided no conclusive answer since the Sacks' system had
never operated before the test samples were taken.
      The majority of appellants' case below was spent trying
to prove that the seasonal high groundwater level was above
the fifty-four inch level required by county regulations.
The testimony on the groundwater level was mixed, and it was
clearly within the trial court's discretion to find that the
regulations had been complied with.      Two experts testified
that the groundwater level was below fifty-four inches, and
one testified that it was above fifty-four inches.    The trial
court obviously thought the former testimony more credible,
and it was within its discretion to do so.      In addition to
this, the system was over 180 feet horizontally from appel-
lants' well, where the county regulations only require a 100
foot separation.    Even if the regulations had not been com-
plied with, it wou1.d not mean that as a matter of course the
Sacks'   septic   system would   contaminate appellants' well.
Numerous variables would bear on this, including the direc-
tion of groundwater flow and the horizontal separation be-
tween the septic system and well.     In sum, no connection was
made between Sacks' septic system and appellants' well.
      The District Court is affirmed.
We concur:



  q& 4. (VN&
        ChiefQ Justice
