A Missoula judge issued a temporary restraining order Tuesday after one man’s alleged actions to lessen flooding on his property may have caused flooding on his neighbors’ property.
In issuing her order, Judge Leslie Halligan said it appeared that Cody Moore’s diversion of a seasonal creek is flooding Jim Brock’s property and basement, resulting in “significant and increasing water damage” to the land and his residence.
That diversion may be unlawful under an exception listed in Montana’s "common enemy doctrine.''
“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,” Halligan wrote in her order. However, “In diverting such waters, the landowner is limited to reasonable care in avoiding damage to adjoining property.”
Halligan wrote that Moore must immediately reverse the diversion of stream water so Brock can try to dry out his home and fields to prevent “further and permanent damage.”
Brock declined to comment on the record to the Missoulian, and Moore didn’t return a telephone call seeking comment. But according to court documents filed by Brock, Moore built his home at the bottom of Martin Gulch in 2018, in an area where a seasonal creek traditionally had drained to the east.
Brock and another neighbor to the west, Dan Sullivan, said that on April 22, runoff prompted the area around Moore’s recently built house on Big Flat Road to start flooding with water from the ephemeral creek.
On Wednesday, Sullivan pointed to an open field east of Moore’s home where the runoff usually pools each spring. On the morning of April 22, the creek was flowing eastward into the field, and also across Moore’s driveway.
“It flooded to the extent you couldn’t drive through it,” said Sullivan, who along with Brock lives to the west of Moore. “That night, about 6:30, here comes this water into my field, and it’s about to come into my house.”
Brock wrote that about that time, his wife saw and heard earthmoving equipment doing some activity near Moore’s house, and a Weyerhaeuser official, Michael Vetter, told her they had “moved a couple of boulders” on Moore’s property. A message seeking comment couldn’t be left on Vetter’s phone because his mailbox was full.
Sullivan and Brock suspect that Weyerhaeuser’s activity — the timber company formerly owned Moore’s property — had caused the creek to run westward now, moving the water onto their properties.
“… [A] new creek has formed in the back yards of residents to the west on Big Flat Road,” Brock wrote. “The result has been severe flooding of both properties and in our case, the lower level of our home. There is no memory or record of such a creek behind our homes. There is no natural path for the water to flow to the Clark Fork, and it is backing up.”
Brock wrote that simply maintaining his property has become a full-time job for their household.
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“We have six pumps working 24/7 in an effort to remove water from our lower level and away from our home. We have houseguests sleeping in the living room because the lower level is flooded. Our family has filled and placed over 600 sandbags in efforts to divert water away from our home,” Brock wrote.
“We have spent thousands of dollars on pumps, hoses, and contract labor. We are exhausted, getting very little sleep, and extremely stressed.”
He added that Moore’s alleged activity also is causing a growing environmental challenge because of the lack of a natural outlet for the water to flow to the Clark Fork.
Sullivan also has sandbags lining one side of a swale on his property to keep the water that’s moved in away from his home, which he built in 1995. He pointed to a field farther to the west, noting that while it floods occasionally from high groundwater, it’s never gotten this deep. This year, the water nearly topped a galvanized gate, which is about four feet tall.
“In 1996 everything was flooded, but we had four feet of snow and 200% snowpack. But it hasn’t flooded since then,” Sullivan said. “Even last year, when the river was running at 13 feet and we had double the normal snowpack and it rained every day for a month, we still didn’t have any water.
“This year, it was a foot deep, at least, in my yard. So what happened?”
As he walks east of his house, Sullivan points to a fence where debris shows that at the height of the flooding, the water was at least 25 feet wide. Farther east, between the homes of Sullivan and Moore, the hum of a generator pumping water out of Brock’s basement cuts through the spring air.
Sullivan said that as the water was flowing into his yard April 22, he approached Moore to find out what was going on.
“He said it was flooding, they tried to unplug the culvert, and he said you could see the water level dropping. He was proud of his work because every day the water was going down. But ours was rising,” Sullivan said. “Now they’re bone dry and have been for days.
“Their house was built in a bad spot and the driveway wasn’t done right.”
Brock wrote that he tried to contact Moore multiple times, including retaining a process server who delivered a letter asking him to contact Brock, but never heard from his neighbor.
Halligan set a May 15 court date to hear legal arguments on the temporary restraining order, and whether it should be converted in a preliminary injunction to remain in effect while the matter is litigated.