Limberhand v. Big Ditch Co.

NO. 84-418

IN THE SUPREME COURT OF THE STATE OF MONTANA

1.985

CONNIE LIMRERHAND, Individually, and

as Personal Representative of the

Estate of JAYIjON LIMBERHAND, Deceased

Minor,

Plaintiff and Appellant,

BIG DITCH COMPANY; CITY OF BILLINGS;

KEN NICHOISON and ALLEN PJICHOLSON, each

individually and d/b/a APPLE CREEK

PROPERTY MANAGEMENT, INC.,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Moses Law Firm; Paul. M. Warren argued, Billings,

Montana

For R.espondent:

Crowley, Haughey, Hanson, Toole & Dietrich; Don Harris

argued for Rig Ditch Co., Billings, Montana

Keefer, Roybal, Hanson, Stacey & Jarussi; J. Dwaine

Roybal argued for City of Billings, Billings, Montana

Jardine, Stephenson, Blewett & Weaver; Lon T. Holden

argued for Micholson, Great Falls, Montana

For Amicus Curiae:

Ted J. Doney for Mont. Water Development Assoc.,

Helena, Montana

Submitted: IqaY 2, 1935

~ ~ ~ i d ~ d : 26, 1985

September

Filed :

Clerk

Mr. Justice John C. Sheehy delivered. the Opinion of the

Court.

Appellant, Connie Limberhand, brought this action j n the

District Court, Thirteenth Judicial District, Yell-owstone

County, to recover damages for the alleged wrongful death of

her 18-month-old son, Jaylon, who drowned in an irriqat-ion

ditch.

The irrigation ditch was a lateral from the main channel

of the Big Ditch which was constructed early in this century

by the Minnesota and Montana Land Improvement Company and

subsequently acquired by the Big Ditch Company, which

currently owns and operates the ditch and laterals. Rig

Ditch Company owns the right-of-way where the ditches flow

but it does not own the adiacent land. This particular

lateral originates west of the City of Bill-ings and ends at

Nina Clare Street, approximately one mile within the Billings

city limits. Water from the ditch system, including the

lateral, is used to irrigate agricultural and other lands.

Apple Creek Apartments, an apartment complex owned and

managed by Ken and Allen Nicholson, who do business under the

various corporate names appearing above, are located on Lands

which border the irrigation ditch where Jaylon Limberhand

drowned on June 27, 1981. It appears from the record here,

though not clearly (unfortunately, all the parties here have

failed adequately to develop the applicable facts, and some

of the facts herein stated are gleaned. from their briefs),

that Apple Creek Apartments are located west of Rehberg Lane

and west of a daycare center, which also abuts the irrigation

ditch, and which is completely fenced. A fence separates the

Apple Creek Apartments on the south side from other

resid-entialproperty. Apple Creek Apartments consists of two

buildings, one larger than the other and between the

buildings and extending northward from one of them toward the

ditch is a paved parking lot which abuts the ditch easement,

perhaps within 30 feet of the irrigation ditch.

As admitted by the Ni.cholsons, on the day of the

accident, Connie Limberhand and her young son were guests of

certain tenants residing at the Apple Creek Apartments.

Jaylon Limberhand apparently wandered away from his mother,

left the apartment where they were visiting, crossed the

parking lot which separates the apartment complex from the

ditch, and slipped or fell into the ditch. Jaylon survived

for 1 day in the hospital.

Plaintiff predicates liability as to the City of

Billings on the grounds that the City, in the enforcement of

its ordinances, failed to declare the open irrigation ditch

here a public nuisance and to order the ditch closed. or other

protective measures taken by Rig Ditch Company to prevent

drowning accidents.

Each of the named defendants moved the court for a

summary judgment in their respective favors, and the District

Court granted summary judgments as to all of the defendants.

Connie Limberhand appeals to this Court from each

summary judgment against her. She poses the following issues

on appeal:

1. With respect to Big Ditch Company the District Court

erred in holding that:

(a) Connie Limberhand had not met the elements of

attractive nuisance as a basis of liability against Big

Ditch.

(b) Connie Limberhand did not state a cause of

action in negligence against Big Ditch.

(c) The City Ordinances place no additional d-uty

or burden upon Big Ditch Company.

2. With respect to the City of Billings, Connie

Limberhand argues the District Court erred in holding that

the City of Billings was under no duty to act and declare the

irrigation ditch a nuisance and require implementation of

protective devices.

3. With respect to defendants Nicholsons, Connie

Limberhand argues the District Court erred in holding that

adjacent landowners owed no duty to the decedent to protect

in anyway against drowning accidents on lands adjacent to the

Nicholsons' land holdings.

We affirm the summary judgment granted by the District

Court in favor of the City of Billings. We reverse the

summary judgments entered in favor of Big Ditch Company and

the Nicholsons, and remand to the District Court for further

proceedings in accord with this opinion.

I. Big Ditch Company

-

A. Attractive Nuisance

The doctrine of attractive nuisance is recognized in

Montana and we have recognized the Restatement (Second) of

Torts 339 as setting forth the elements necessary to

establish an attractive nuisance. Big Man v. State (Mont.

1981), 626 P.2d 235, 240, 38 St.Rep. 362, 368; Gagnier v.

Curran Construction Company (1968), 151 Mont. 468, 473, 474,

443 P.2d 894, 897, 898; Driscoll v. Clark (1905), 32 Mont.

172, 80 P. 1. Whether the doctrine of attractive nuisance

should be applied to drowning incidents in irrigation ditches

has not been clearly stated by us.

Tt is true that in Fusselman v. Yellowstone Valley Land

and Irrigation Co. (1917), 53 Mont. 254, 163 P. 473, this

Court made reference to the elements of attractive nuisance

in sustaining a directed verdict by the District Court

against a plaintiff seeking damages for the drowning death in

an irrigation ditch in Livingston of a three-year-old girl.

In 1917, this Court was of the opinion that in a pleading for

injuries received upon the defendant's property, the

complaint must disclose by what right the injured party was

upon the premises. In Fusselman, we held that because of the

failure of the plaintiff to allege that the decedent was

attracted to the canal or that by reason of its peculiar

attractiveness, she went upon the canal and met her death,

the complaint failed to state a cause of action under the

doctrine of the turntable cases.

In the case before us, Connie Limberhand contends that

the doctrine of attractive nuisance is applicable as to the

R i g Ditch Company and that she meets here the elements of

attractive nuisance as set forth in Restatement (Second) of

Torts, 339. Big Ditch apparently accepts the applicability

of the attractive nuisance doctrine to this case, but

contends the elements are not met.

A problem exists with respect to the automatic

application of the attractive nuisance doctrine to ordinary

irrigation ditches. While such irrigation ditches are

artificially constructed, for the most part they have natural

characteristics, and there may be little to distinguish them

from the numerous streams, rivers and creeks that occur

naturally in Montana, and flow in many instances through

towns, vil-lages and cities. The attractive nuisance doctrine

is not quite applicable to such artificial bodies of water;

otherwise it could be contended that a landowner through

whose property a natural stream flows is in reality

maintaining an attractive nuisance.

Tt is because courts have failed to recognize the

distinction between bodies of water having natural

characteristics and other artificial bodies such as swimming

pools, sewage treatment plants and the like, that there

appears to be a disparity in the holdings of courts with

respect to drowning incidents in artificial bodies of water.

For example, the rule announced in Fusselman, that there must

be an implied invitation to a child to come upon the owner's

land in order to hold the owner liable is not the law of this

state tod-ay. There are, however, cases in this State and

others from which a proper rule can he drawn.

Troglia v. Butte Superior Mining Company (9th Cir.

1921), 270 F. 75, was a case involving an eleven-year-old boy

who drowned while swimming in a pond on the premises of the

defendant mining company. The pond. had been constructed to

furnish water to a mill, and was formed by damming a small

stream. The pond. was 100 feet long and 75 feet wide and from

1 to 12 feet deep. It was not enclosed. There were notices

posted around. it which said "no trespassing," "private

property," "10 feet deep," an.d "keep away." Nonetheless,

boys swam there in summer as a matter of practice. This

particular decedent was strong, in the seventh grade and able

to read. After two hours of swimming in the pond, he

apparently got cramps and drowned. The mining company had an

attendant for a pump nearby.

In Troglia, the Court of Appeals stated:

The degree of care required of one who maintains on

his land an artificial pool for a useful purpose is

not greater than that required of one through whose

land flows a natural strea-m,and he is bound to no

special care or precaution for the protection of

children who are in the habit of swimming in the

same, unl-ess there is in the pool some peculiar

danger, in the nature of a hidden peril or trap for

the unwary, of which he has or ought to have

knowledge.

It is noteworthy that Troglia was decided in 1921 before

the decision in Erie v. Tompkins (1938), 304 U.S. 64, 58

S.Ct. 817, 82 L.Ed. 1188, but nevertheless, Troglia spoke a

rule applicable to a Montana decedent.

In a recent case before the Ninth Circuit, Harmon v.

Billings Bench Water Users Association (9th Cir. 19851, 765

F.2d 1464, the Court of Appeals reversed a summary judgment

in favor of the ditch company granted by the federal district

court in a drowning case in Montana. The Court of Appeals in

Harmon accepted as settled that the attractive nuisance

doctrine was applicable to irrigation ditches in Montana. In

so stating, it relied on -

Troglia, supra, and upon Coeur

dlAlene Lumber Company v. Thompson (9th Cir. 1914), 215 F.

8. The Court of Appeals decided that there was a genuine

issue of material- fact as to whether the ditch might have

presented a hidden danger that Harmon's son did not

appreciate. The mother had testified that the concrete sides

of the ditch were much steeper than the natural bank they

ad.joined and that on the day in question, the water was above

the concrete sides. The Court of Appeals likened these facts

to those in Thompson (of which more later) and thus put the

Harmon case within the hidden danger exception of the

Restatement on attractive nuisance. The Court of Appeals

also disagreed with the Federal District Court's holding that

the erection of safety devices such as a childproof fence

along the course of the ditch would be an oppressive burden

upon the ditch company.

Coeur d'Al-ene Lumber Company v. Thompson, supra, was a

case arising from the Federal District Court in Idaho. There

t.he d.efendant had operated a lumber mill at St. Maries and

had built a cistern or well for storage of water. The water

was used in connection with the operation of the lumber mill.

The particular water body had been constructed by the company

or its lessee by digging around a natural spring, and placing

around the spring a wooden wall approximately 4 feet high and

4 feet square through which the water bubbled up and escaped.

The lessee in operating the mill had. d-umped sawdust and other

debris in such manner as to obstruct the discharge of the

spring after it filled the well. A pond of water accumulated

about 1-2 feet over the level of the planked well. Moreover,

sawd-ust floated on top of the resulting pond. The shallow

pond was 12 to 15 feet wide and 25 to 30 feet long and the

wooden construction underneath the water was hidden from

view. Two boys waded into the pond and one of them suddenly

dropped into the constructed well.. The other boy tried to

save him and both of them drowned. The Court of Appeals

found that the circumstances of the well constituted a hidden

trap and a-ffirmed a judgment for the wrongful death of the

decedent.

From Harmon, Troglia and Thompson, supra, we can deduce

a rule proper for application to drowning incidents involving

immature children rather than the attractive nuisance

doctrine. Accordingly, we hold that the degree of care of

one who maintains on his land an artificial stream or body of

water for a useful purpose, where the stream or body of water

has natural characteristics, is no greater than the degree of

care required of one through whose land flows a natural

stream or contains a natural body of water. The owner or

user of an artificial stream or body of water having natural

characteristics is bound to no special duty of care or

precaution for the protection of children who may enter

therein, unless there is in or about the artificial stream or

body of water some peculiar danger, in the nature of a hidden

peril or trap for the unwary, of which the owner or user has

or ought to have notice. The doctrine of attractive nuisance

as such does not apply to such artificial streams or bodies

of water anymore than it applies to natural streams or bodies

of water.

Such a holding has these advantages: (1) It avoids the

disparity in the cases, some of which hold that attractive

nuisance is applicable to irrigation ditches, and most of

which hold it is not; (2) the holding is based more on the

concept of negligence than attractive nuisance, and the

ordinary concepts of negligence, that is, duty, breach and

proximately-caused injuries are more useful in determining

liability in such instances; and (3) the holding avoids legal

fictions, such as attractive nuisance, which developed

originally to excuse the unwitting trespass by children.

In Harmon, in footnote 3, the Circuit Court of Appeals

felt that this Court had vacillated on the necessity of

status of the injured party in determining the duty owed by a

property owner to an injured party. 765 F.2d at 1467. In

Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38

St.Rep. 545, 549, in construing section 27-1-701, MCA

(formerly section 58-607, R.C.M. 1947), we held that the

statute prevented us from distinguishing between social

guests and invitees in determining the liability of the

landowner for injuries received. We regard the same statute

as decl-aring the applicable law as to the duty of landowners

to persons though they may be trespassers. The test is

always not the status of the injured party but the exercise

of ordinary care in the circumstances by the landowner. The

statute provides:

Everyone is responsible not only for the result of

his wilful acts but also for an injury occasioned

to another by his want of ordinary care or skill in

the management of his property or person except so

far as the latter has wilfully or by want of

ordinary care brought the injury upon himself.

Section 27-1-701, MCA.

Although in a later case, Cereck v. Albertson's, Inc.

(1981), 1-95 Mont. 409, 412, 637 P.2d 509, 511, we stated that

the duty imposed on a property owner depends on the status of

the injured party, that statement is not correct in the light

of section 27-1-701, MCA, above quoted.

It appears plain therefore, that the motion for summary

judgment was submitted for decision to the District Court as

to Big Ditch Company upon an incorrect theory of liability.

We therefore remand. this cause to the District Court with

respect to Big Ditch for a reconsideration of the motion for

summary judgment based on the rule of law expressed herein.

We express no opinion as to what that decision should be at

this juncture.

B

--..

.

A

Neali.ence

In addition to her theory on attractive nuisance,

Limberhand alleged in her amended complai-nt that the water

flow in the ditch was great and that the maintenance of the

ditch created a deceptive condition because of grass and

weeds growing along the edge of the ditch and under the

surface of the water. She also alleged that the

construction, design and maintenance of the ditch omitted all

safety measures such as warnings, fences or other protective

devices, and that the hazards and dangers of the ditch were

hidden and not discoverable by a child of tender years.

In the discussion on attractive nuisance, we have set

forth a rule to determine liability, if any, of the owner of

lancis which contain artificial streams or bodies of water

with natural characteristics. Tf on remand the District

Court determines that a genuine issue of material fact exists

as to whether the irrigation ditch here in question presented

a peculiar danger in the nature of hidden peril or trap for

the unwary, a fact issue would arise for a jury or other

trier of fact. It would follow that the court would then

instruct the jury that the duty of providing warnings, fences

or other protective devices for the unwary would be measured

by the landowner's duty to exercise "ordinary care or skil-1

in the management of his property" pursuant to section

27-1-701, KCA.

All questions of negligence in this case on the part of

Big Ditch Company are inextricably bound up in the primary

issue whether the ditch presented a peculiar danger in the

nature of a hidden peril or trap for the unwary.

11. The City of Billings

Ordinances

Limberhand complains that Big Ditch Company is in

violation of City of Billings Ordinance No. 4343, section

1-0.80.030, which states:

Every person owning or operating any irrigation

ditch or system or portion thereof within the City

shall care for, mainta.in and control said

irrigation ditch, system, water being transported

and concomitant structures. Said care, control and

interactions and reactions to structures and

impediments not controlled or maintained by persons

owning or operating the irrigation systems. The

duty imposed hereby shal-1 extend to control and

removal of all obstructions, litter, debris, plant

materials, loose earth, rocks, stones, concrete and

wood material without limitation in, on, or around

said irrigation ditches.

It is the contention of Limberhand that the ordinance

was violated by the Ditch Company, at least as to the plant

materials, and therefore summary judgment was improper.

Militating against Limberhand is the paucity of facts

marshalled by Limberhand before the District Court to show

that plant materials or other debris accumulated in such

manner as to violate this ordinance, and to be a legal cause

of the drowning.

We examine the applicable statutes and ordinances,

however, because the court may have to decide issues

thereunder on remand.

Section 7-31-4103, has been on the hooks in

substantially its present form since 1921. It provides:

The city or town council has power to regulate the

use and construction of irrigation ditches, drains,

and flumes within or running through any city or

town.

With respect to open ditches, the legislature enacted

Part 42, Title 7, M.CA, in 1961 for the avowed purpose of

preventing the drowning of children within the limits of an

incorporated city or town (sections 7-31-4201 through

7-31-4207, incl., MCA).

Under 7-31-4203, MCA, it is declared that water that

flows in an open ditch in an incorporated city is a public

nuisance if the city or town, acting through its governing

body declares it to be a nuisance. However, section

7-31-4207, MCA, provides that the part does not apply to

ditches carrying water used for commercial irrigation water

purposes. Ostensibly then, under section 7-31-4207, MCA, any

ordinances adopted by the City of Billings appl-ying to the

Big Ditch Company lateral under the authority of section

7-31-4201, et seq., MCA, for the purpose of declaring a ditch

a public nuisance, and providing remedial measures is outside

the power of the City of Billings.

Ordinance No. 4343 was adopted by the City of Billings

on April 27, 1981. Under its provisions, we have already set

out section 10.80.030 relating to the care and maintenance of

irrigation ditches. The ordinance also provides that failure

to care for and maintain the ditches as provided for in

section 10.80.030 shall constitute a public nuisance. There

are provisions for punishment for vj.olations of the

ordinance. The ordinance further provides that the City

cannot order a ditch to be discontinued or prohibit the use

of the ditch if it is used by 10 percent or more of the

abutting landowners on the ditch. In this case, 30.6 percent

of the landowners used the ditch for irrigation purposes.

The further contention of Limberhand is that the City

had a duty to go forward in this case and determine that the

ditch in question is a nuisance and take remedial measures.

Limberhand predicates negligence and liability on the part of

the City for failure to take such action.

Limberhand fails in this contention on three points: 1)

The state statutes empowering cities to adopt ordinances

designed to prevent the drowning of children do not apply to

commercial irrigation ditches; 2) The city ordinance itself

does not apply since more than 10 percent of the abutting

landowners use the ditch for irrigation purposes; and 3) Any

further action on the part of the City of Billings would

require legislative action by the City Council. The failure

of the City to take legislative action may not be the basis

of a suit against it for liability, since the City is immune

under section 2-9-111, MCA, providing immunity from suit for

legislative action and omissions. The summary jud.qment in

favor of the City of Billings is therefore affirmed.

(We do not reach the question, if the question exists,

whether Billings Ordinance No. 4343 supersedes state law

because of the nature of the charter of the City of

Billings.)

In like manner, there is nc basis to predicate liability

against Big Ditch based upon the city ordinance.

111. The Nicholsons

The Nicholsons, d/b/a Nicholson, Inc. and d/b/a Apple

Creek Ltd. and Property Management Inc. , hereafter

Nichol-sons, owned and managed the Apple Creek Apartments that

border the irrigation ditch where Jaylon Limberhand drowned

on June 27, 1981. On the day Jaylon drowned, he and his

mother, Connie Limberhand, were visiting Connie's sister who

was a tenant of the Apple Creek Apartments. The District

Court sustained Nicholsons' motion for summary judgment

holding that Nicholsons owed no legal duty to the appellant

or appellant's decedent.

Appellant contends that the question of whether

Nicholsons breached the common law duty to keep the premises

reasonably safe and to warn of any hidden or lurking danger

is one a jury should decide. We agree. It is well-settled

law in Montana that the social guest of a tenant in the

common areas of an apartment complex is afforded a degree of

protection from harm in relation to the duty of a landlord.

Piedalue v. Clinton Elementary School District No. 2 (Mont.

1984), 692 P.2d 20, 41 St.Rep. 2344; Rennick v. Hoover

(1980), 186 Mont. 167, 606 P.2d 1079; Olson v. Kayser (1973),

161 Mont. 241, 505 P.2d 394. The qrounds surrounding an

apartment complex a.re part of the common area. See Olson,

supra. We have said earlier in this opinion that the status

of Limberhand as a social guest is not controlling.

Nicholsons' duty is governed by the provisions of section

27-1-701, MCA, supra.

The issue of Nicholsons' potential liability based on

breach of a duty owed Limberhand's decedent poses a two-part

query. One, could an irrigation ditch constitute a

sufficient danger to tenants or their guests of an apartment

complex to require that the 1and.l.ord take precautionary

measures in order to satisfy his du.ty to keep the premises

reasonably safe? Two, does the fact that the irrigation

ditch is owned by another and is located on land adjoining

the landlord's common area absolve the landlord of liability

as a matter of law?

The apartment owners owed a duty in this case to use

ordinary care to have their premises reasonably safe or to

warn of a i hidden or lurking danger.

ry What constitutes

reasonably safe premises is generally considered to be a

question of fact. Whether a premises is safe depends to a

large extent on what use the property is put to, its setting,

location and other physical characteristics, and the type of

person who would foreseeably visit the premises, as well as

the specific type of hazard. or unsafe condition alleged.

These and other factors are embodied in the legal concept of

"reasons-ble under the circumstances." For example, the

existence of an open irrigation ditch in a farmer's field

poses little danger compared to the same irrigation ditch

located near an apartment complex populated by families with

sniall children.

The duty of a landlord under section 27-1-701, MCA to

use ordinary care in managing his property imposes on hj.m a

duty to make the premises reasonably safe under the test of

ordinary care for all persons who forseeably might properly

come on the premises, old and young, large and small.

Tenants and their social guests are necessarily users of

rental apartment complexes.

We conclude that a question of material fact exists as

to whether the irrigation ditch could present sufficient

danger to tenants and their social guests of this apartment

complex so that by not taking any remedial or warning

measures the landlords may have breached their duty to keep

the premises reasonably safe. Whether the landlord breached

this duty is a jury question.

We do not mean that landlords are absolute insurers of

the safety of their property and environs. What we do mean

is that the duty of landlords to others in the management of

their property is to use that degree of ordinary care which

reasonable persons would use under the same or similar

circumstances.

Having affirmatively answered the first question of the

two-part query, we address the second question. How does the

fact the ditch is not located on Nicholsons' land affect

Nicholsons' duty to keep his premises reasonably safe?

Nicholsons flatly state in their brief that there exists

no duty on the part of a landowner to guard against

conditions on adjoining property over which they have no

dominion or control. Nicholsons cite cases that stand for

the proposition that an adjacent property owner is not liable

for injuries sustained by a youth who gained access to a

hazardous condition by crossing his land. These cases are

clearly distinguishable from the instant case. Two cases,

however, are on point. Walters v. Greenglade Villas

Homeowners Association (Fla. App. 1981), 399 So.2d 538, 539,

holds there is no duty on a condominium owners' association

to erect a fence to shield small children from the hazards of

a canal. In Jones v. United States (4th Cir. 1957), 241 F.2d

26, the federal court construed Maryland law as it existed in

1.957 (Maryland did not recognize the doctrine of attractive

nuisance) and held that the primary duty to inform, advise

and protect a child of tender years must rest upon the

parents or others in loco parentis.

Recently, in Piedalue v. Clinton Elementary School

District N o . 2 (Mont. 1984), 692 P.2d 20, 41 St.Rep. 2344, we

rejected a rigic? property line determination of liability.

In Piedalue, the plaintiff was a social guest visiting a

tenant of property owner, A1 Baide. Baide maintained a

primary road for ingress and egress from his trailer park.

Another road which appeared also to provide ingress and

egress from the premises abruptly ended in an irrigation

ditch 60 feet beyond Baide's property line. We held that

Baide's duty to have a reasonably safe premises could extend

beyond the premises to the dangerous condition located on

land adjacent to Eaidefs property.

The area owned by Nicholsons adjoining the irrigation

ditch was in the dominion and control of Nicholsons. If the

instrumental-ity causing harm is located adjacent to the

landowner's property, and the instrumentality poses a clear

and foreseeable danger to persons properly using the

landowner's premises, we see no reason to shield the

landowner from liabil-ity as a matter of law. A duty to take

some reasonable precautions may exist. This duty may in some

instances be discharged by a warning; under other

circumstances remedial action may be required. A jury should

be given the opportunity to determine if Nicholsons used

reasonable care unc?er the circumstances in discharqing any

duty they may have owed to Jaylon Limberhand to maintain a

safe premises. The fact that the irrigation ditch was not

located on Nicholsons' land does not as a matter of law bar

appellant's claim.

Nicholsons further contend that 5 85-6-107, MCA,

statutorily imposes exclusive liability on incorporated water

users associations (Big Ditch Company) for any injury caused

by failure to maintain safe working and operating conditions

of an jrrigation system. Nicholsons assert this statute bars

appellant's case against them. Nicholsons read the statute

too broadly. Section 85-6-107, MCA, appears in the code

defining the rights and liabilities of ditch companies with

respect to the State of Montana. The State disclaims

liabi-lity for injuries allegedly caused by its regul-a

tion of

such companies. We do not find the statute applicable.

Nicholsons argue that constructing a fence or other

barricade would interfere with Big Ditch Company's rights and

place Nicholsons in the untenable position of safeguarding

its property or being subjected to suit by Big Ditch Company.

This argument is based on speculation and lacks merit.

Nicholsons offered no proof that erecting a fence would

interfere with Rig Ditch Company's rights. A fence

constructed on Nicholsons' property may not interfere with

Big Ditch Company's right-of-way anymore than the

construction of the apartment complex itself.

Nicholsons further argue that they should not be

required to construct a fence because other landowners have

not. Nicholsons' prudence is not measured by the imprudence,

if any, of others. Nicholsons' duty is measured by the

standard of reasonable care.

We reverse the order of the District Court qranting

summary judgment to Nicholsons and hold that issues of

material fact exist concerning whether Nicholsons exercised

reasonable care in maintaining a safe premises.

. We remand

this case for further proceedings in accordance with this

opinion.

Reversed in part; affirmed in part. Costs to appellant.

We Concur:

d d t ~ L p

Chief Justice