District Judge, sitting for MR. JUSTICE HARRISON, dissenting:
I respectfully dissent.
The District Court entered judgment in favor of the Mielkes, on the basis of adverse use, granting them 93 [sic] miner’s inches as a first priority right in Gird Creek. Our review is confined to determining whether there is substantial credible evidence to support this decision. Helehan v. Ueland (1986), [223 Mont. 288,] 725 P.2d 1192, 1194, 43 St.Rep. 1679, 1682. “In so determining, we must view the evidence in the light most favorable to the prevailing party.” Id. “Further, the evidence may conflict with other evidence and still be deemed ‘substantial.’ ” Id.
The majority reverses the District Court’s judgment on the basis of “two factors which militate against a title by prescription in the Mielkes.” First, the majority states that “a substantial question exists whether the State of Montana as owner had notice that the Mielkes were claiming adversely to it with respect to the waters in excess of those provided under Contract No. 90.” (Emphasis added.) However, the record shows that the State had more than adequate notice. Mielke testified that he irrigated all of his land, 98.44 acres, every year since 1946, using about 200 miner’s inches of Gird Creek water each year. He paid only for water sufficient to irrigate 50 acres [about 107 miner’s inches]. Everytime he took water, he told the State what he was going to do. He opened his own headgate and turned water from Gird Creek into his ditch without permission.
Robert Lowery, who was the ditch rider for the State in the years 1946-1950, testified that his father, who was the manger of the Daly Ditch Project and also employed by the State, told him that Mielke was entitled to free water. Robert Lowery also testified that Mielke was only to pay for a portion of the water used and the balance was a free water right. Lowery gave Mielke permission to operate the headgate in recognition of his free water right. Lowery only allowed people with a free water right to open their own headgates — others operating on a contract right were not allowed to open their own headgate. Based on the record and the District Court’s decision, the term “free water” means water that Mielke had a right to use with*184out charge as contrasted to water he paid for under his Contract No. 90.
In addition, and as the majority opinion stated, “there was a county road alongside [Mielkes’] acreage and the amount of their irrigation use was open and obvious to persons traveling along that road, including the ditch riders for the District; moreover, the District Headquarters was only a short distance from the Mielke farm.” (Emphasis added.) Specifically, Mielke testified that District Headquarters was about one-third of a mile from his property and anyone driving on the road could see him, with a shovel, irrigating. He also testified that State Personnel, including the ditch riders, drove back, and forth on the road. “[T]here ain’t a day that goes by that there ain’t some of their crew that goes over.”
In conclusion, the record shows that the State had more than adequate notice.
The second factor, which, according to the majority opinion, militates against adverse use is that “plaintiffs paid the State ... for the use of the water on their lands under a contract based upon 50 acres.” (Emphasis added.) True, “under Contract No. 90 . . . Mielkes purchased . . . water to irrigate 50 acres.” (Emphasis added.) However, “Mielkes currently irrigate 98.44 acres.” (Emphasis added.) Mielke testified that the most water he ever paid the State for was that sufficient to irrigate 50 acres. The ditch rider, a State employee, testified that: 1) Mielke was only to pay for a portion of the water he used; 2) the balance of the water was a free water right; 3) the free water was in addition to what Mielke got under Contract No. 90, and 4) Mielke had about a 100 inch free water right. It was this free water right of about 100 inches, not the purchased contract water, that Mielkes claimed on the basis of adverse possession. On that basis, the District Court granted such claim. Mielkes did not claim a right by adverse possession to water purchased from the State and used to irrigate 50 acres. Rather, they claimed a right, by adverse possession to approximately 100 miner’s inches used to irrigate the remaining 48.44 acres of their land. Therefore, the fact that Mielkes paid for their contract water does not affect their claim of adverse possession of unpurchased non-contract water. Even the majority recognized this fact. They stated: “[Mielkes] were taking waters admittedly paid for by them as contract waters, and mixed with waters to which they now claim adverse use.” The majority opinion also referred to “Mielkes’ claim to title by prescription to the excess of water over their contract sup*185ply . . .” Furthermore, the majority questioned whether the State had notice that “the Mielkes were claiming adversely to it with respect to waters in excess of those provided under Contract No. 90.” The majority’s last argument is that the “possession of Mielkes to the use of the water was not exclusive, but was in participation with the owner, the State of Montana.” The majority asserts that when two persons are in possession, the seisin follows the owner. In support, they cite Carley v. Davis (Okla. 1969), 452 P.2d 772; and Vider v. Zavislan (1961), 146 Colo. 519, 62 P.2d 163. The defendant in Carley testified that his land was his continual place of work until he put it in Soil Bank and that his cattle were on the land all one summer. The plaintiff testified that there had never been a year since 1944, that he did not have possession of such tract. The appeals court affirmed the trial court’s determination that plaintiff’s claimed “exclusive” possession was shared by others and thus, not sufficient for prescriptive title purposes.
In Vider, the defendant held title to the disputed tracts of land and built his temporary drift fences upon such land. The plaintiff had actual or constructive possession of the land. Under such circumstances, the Colorado Court applied the following rule:
“[I]n case of a mixed or common possession of land by both parties to a suit, the law adjudges the rightful possession to him who holds legal title, and no length of time of possession can give title by adverse possession as against the legal title. (Emphasis added.)”
These two out-of-state cases cited by the majority are not applicable to the case at hand. First, Carley and Vider adjudicate ownership of land. The water at issue in this case was not held in ownership by the State in its role as a sovereign. The State obtained the use of this water from Ravalli Land and Irrigation Co. and sold the use thereof, as a ditch company, in the same manner as its predecessor. Only the use of the water for purposes of sale was acquired by the State. Norman v. Corbley (1905), 32 Mont. 195, 203, 79 P. 1059, 1060. Secondly, there was no mixed or common possession, by the Mielkes and the State, of the water at issue. Mielkes had exclusive use of the water. Mielke testified that he irrigated all of his land every year since 1946. There is no evidence that the State also used this water.
The District Court concluded that the Mielkes satisfied all requirements for adverse possession of a water right for 93 [sic] miner’s inches. “This Court will not substitute its judgment for that of the trier of fact. We will consider only whether substantial credible evi*186dence supports the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings.” Jensen v. Jensen (Mont. 1981), [-Mont. _,] 629 P.2d 765, 768, 38 St.Rep. 927, 930. Further, the appellant must overcome the presumption that the District Court’s order is correct. Jensen v. Jensen (1979), 182 Mont. 472, 597 P.2d 733. “Finally, a reviewing court is never justified in substituting its discretion for that of the trial court.” Marriage of Ward (Mont. 1986), [223 Mont. 434,] 725 P.2d 1211, 1213, 43 St.Rep. 1825, 1827. “In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.” Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541.
Because there is substantial evidence supporting the District Court’s decision and because the District Court did not act arbitrarily, I would affirm its decision granting Mielkes a water right of 93 [sic] miner’s inches on the basis of adverse possession.
However, such decision brings up another question — whether adverse possession can be acquired against the State under the facts of the case. Mielkes argue that this issue was not set forth, before trial, as a defense and, therefore, was waived. The issue was raised in predecision briefs, but it was not ruled upon by the District Court. Therefore, I would remand this case for findings of fact and conclusions of law on the question of whether such defense was waived and, if not waived, for findings and conclusions on whether adverse possession can be obtained against the State under the facts of this case. See, State v. Shirokow (1980), 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, 866.
MR. JUSTICE MORRISON, concurs in the foregoing dissent of THE HON. HENRY C. LOBLE.