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Alexander v. Mccauley8/27/1991
on 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 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 53 years before the plaintiffs arrived or obtained an interest in the land. Under either circumstance, plaintiffs' cause of action is barred by ยง 85-7-2212(2), MCA.
Accordingly, we affirm the judgment of the District Court.
CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH and HUNT concur.
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