No. 13716
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
BOZ-LEW BUILDERS, a Montana
Limited Partnership,
Plaintiff and Respondent,
-vs-
WILBUR SMITH and ROGER SMITH,
Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of record:
For Appellants:
Bolinger and Wellcome, Bozeman, Montana
H. A. Bollinger argued, Bozeman, Montana
For Respondent :
J. David Penwell argued, Bozeman, Montana
Submitted: September 16, 1977
Decided: NOV 1 6 1977
NC'; 1" n
9
Filed:
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendants appeal from a judgment of the District Court
imposing a continuing injunction prohibiting defendants from
entering upon or interfering with the peaceable possession of
plaintiff's property and from the District Court's subsequent
order releasing the security which plaintiff had posted upon
its application for a temporary restraining order.
Plaintiff, Boz-Lew Builders, is a Montana limited partner-
ship with Ira Bakken registered as its general partner. In Sep-
tember, 1975, plaintiff purchased several lots on the west side
of South 20th Street in Bozeman, Montana. That fall Bakken built
a four-plex apartment on the lots. In the early 1970's the area
where South 20th Street is now located was farmland. At the time
plaintiff purchased its property, this area was still developing
into a residential neighborhood.
The defendants, Wilbur and Roger Smith, are father and son
who own a 46 acre tract of farmland situated between Highway 191
and Durston Road. Prior to this action they irrigated their farm-
land with water channeled through a system of ditches extending
from the West Fork of the Gallatin River to their farmland. Their
rights to water from the West Fork extend back to 1866, although
they have personally used this water and ditch system on and off
only since 1930.
The Smiths' ditch system begins at the West Fork through
a diversion of water into the Farmers Canal. Although the record
does not reveal the exact route which the Farmers Canal takes, it
eventually runs parallel to the east side of defendants' farmland,
heading in a southerly direction. When it reaches West College
Street, it turns and runs due west passing some 300 yards south
of plaintiff's property. At that point, a headgate regulates
water flow into the Carroll Ditch (also known as the Kirk Ditch).
From the headgate Carroll Ditch runs northerly along South 20th
Street, crosses diagonally across what is now plaintiff's property,
and then heads northerly again. It passes through culverts under-
neath West Babcock Street and Highway 191, and finally reaches
defendants' farmland.
In April, 1974, nearly a year and one-half before plaintiff
bought the lots in question, Bakken inspected this area and dis-
covered that the Carroll Ditch ran diagonally across the lots
plaintiff later purchased. He found out that the water flowing
in the ditch was used by Smiths to irrigate. In his testimony,
he admitted that the ditch was open and visible.
At the close of the 1975 irrigation season, Bakken filled
in the Carroll Ditch where it crossed his property and constructed
an apartment building over the ditch bed. In so doing, Bakken
acted on the advice of his attorney who advised him that because
his title insurance policy made no mention of an easement for a
ditch right across the property and because Bakken could not find
any record of one on file with the county clerk and recorder, no
ditch easement existed.
In the spring of 1976, Smiths planted a hay crop on their
farmland. When irrigation season approached, Smiths requested
Bakken to open up the Carroll Ditch where he had filled it in so
they could run water through the ditch to irrigate their farm-
land. Again, acting on the advice of his attorney, Bakken refused
to open up the ditch unless Smiths could show him something in
writing giving them an easement across his property. As Smiths,
who claimed an easement by prescription, could not furnish the
requested writing, Bakken did not open up the ditch.
In mid-July, 1976, Smiths, who were in desperate need of
water to irrigate their hay crop, again approached Bakken about
opening the ditch. This time they gave Bakken an ultimatum to
open the ditch that afternoon or they would open it themselves.
On July 27, 1976, Bakken obtained a temporary restraining
order prohibiting defendants from entering upon plaintiff's
property or from interfering with plaintiff's peaceable possession
of its property. Because defendants were thus prohibited from
using the Carroll Ditch to flood irrigate their hay field, they
authorized George Kingma, their lessee who farmed this land, to
rent a sprinkler system. Kingma rented the system for the remain-
der of the 1976 irrigation season and sprinkler irrigated the farm-
land by pumping water from Spring Creek, a ditch that ran along
the western boundary of defendants' farmland. The total cost to
defendants of sprinkler irrigating was $940.93.
In addition to the temporary restraining order, plaintiff
obtained an order to show cause why a permanent injunction should
not issue. Defendants answered plaintiff's complaint and counter-
claimed for damages resulting from plaintiff's depriving them of
the use of their ditch easement. They prayed that plaintiff's
complaint be dismissed, that the temporary restraining order be
dissolved, that plaintiff be ordered not to interfere with the
defendants' cleaning and using the ditch, and that they be award-
ed damages, costs and a reasonable attorney fee.
Following the show cause hearing, the trial judge and
the parties viewed the whole length of the ditch in dispute. The
court then entered findings of fact, conclusions of law and judg-
ment, declaring that defendants owned a ditch right by prescription
across plaintiff's property but prohibiting them from using the
ditch " * * * unless an ex parte hearing is held before this Court
on notice to the parties to allow the Court to determine the press-
ing needs of the defendants to use the ditch easement in question
to convey their water to the irrigable portions of their ranch."
The court also continued the injunction previously issued until
defendants made the required showing. Defendants appealed.
On December 2, 1976, plaintiff filed an ex parte motion
requesting release of the certificates of deposit it had filed
as security upon issuance of the temporary restraining order.
The following day the District Court ordered the certificates
released.
Defendants raise the following issues on appeal:
1. Did the trial court err in not dismissing the tem-
porary restraining order?
2. Did the trial court err in conditioning defendants'
use of the ditch upon a showing in a separate hearing that their
use of the ditch was necessary and that no other means existed
for the conveyance of water to defendants' property than this
ditch?
3. Did the trial court err in not ordering plaintiff
to permit defendants to re-establish their irrigation ditch and
to use it without interference by plaintiff?
4. Did the trial court err in not awarding defendants
damages in the sum of $940.93 for the cost of renting a sprinkler
system during the 1976 season?
5. Did the trial court err in releasing the security
which plaintiff had posted upon issuance of the temporary re-
straining order?
In an appeal in an equity case, the Supreme Court will
review both questions of law and questions of fact. This Court,
however, will not reverse a trial court in an equity case on
questions of fact unless there is a decided preponderance of the
evidence against the findings of the trial court. Barrett v.
Zenisek, 132 Mont. 229, 315 P.2d 1001 (1957).
In the present case the District Court based its conclu-
sions of law and judgment upon findings of fact that it did not
and could not make under the testimony presented. Although the
District Court held that defendants owned a valid ditch right
across plaintiff's property, it concluded that the relief sought
by defendants would not result in a substantial benefit to them.
Instead, the District Court concluded that plaintiff would be
unreasonably burdened if it was compelled to reconstruct the
ditch in its original place by removing or rebuilding its apart-
ment building elsewhere on the premises. The District Court
also concluded that defendants did not suffer any damage "either
in the use of or application of their conceded water right be-
cause of the invasion of their ditch easement by the plaintiff."
The basis of the District Court's conclusions is found in
its "Memorandum" accompanying its "Findings of Fact and Conclu-
sions of Law". The District Court stated:
"As a Court of Equity it is clear to this Court
that at this time and this moment in this liti-
gation the defendants, Smiths are still able to
convey their clear right of 200 inches of water
by other means than the ditch in issue to their
lands and for the agricultural uses contemplated
by them. * * * "
It is not so clear to this Court what other means defendants
could use that would not result in damage to them.
Two ditches run parallel to the east and west sides of
the defendants' farmland; to the east is the Farmers Canal; to
the west is a ditch known as Spring Creek. The topography of
defendants' farmland is rolling land with high and low points.
Both the Farmers Canal and Spring Creek are in low swampy areas,
but the Carroll Ditch runs through defendants' property at its
highest point making that ditch optimal for flood irrigating.
Although defendant Roger Smith testified that he did divert water
from the Carroll Ditch near its headgate on the Farmers Canal
to Spring Creek on two different occasions in the late 19601s,
he claimed that the only ditch from which he could flood irrigate
his acreage was the Carroll Ditch.
The means Smith used to divert water from the Carroll
itch to Spring Creek was a lateral ditch running just north
of the Farmers Canal and connecting the Carroll Ditch to Spring
Creek. his ditch had been dug to help drain a swampy area
around a sewer line leading to the nearby Presbyterian Church.
Smith, however, claimed no "right" to use the lateral ditch or
Spring Creek to transport water to his farmland.
Prior to Bakken's filling in the Carroll Ditch where it
crossed plaintiff's property, defendants flood irrigated their
hay field using water from the Carroll Ditch. No testimony was
introduced as to what this method of irrigation cost defendants
but presumably it was minimal. The transcript reveals that the
alternative methods of irrigation now available to defendants are:
(1) to irrigate by a sprinkler system, pumping water from one of
the ditches directly bordering defendants' farmland, or (2) to
divert water from the Carroll Ditch through the lateral ditch to
Spring Creek, taking water from Spring Creek as it flows by the
west side of defendants' farmland. The first alternative involved
a cost to defendants of $940.93 for renting a sprinkler system
for the 1976 season. Continuing this method of irrigation would
presumably impose a burden on defendants of either renting a
sprinkler system each season or buying one. The second alternative
also poses problems. The lateral ditch crosses land neither owned
by defendants nor across which they have a ditch easement. Thus,
they are not assured of a right to use that ditch. ~dditionally,
as previously mentioned, Roger Smith testified it is impossible
to flood irrigate his property from any ditch but the Carroll ditch.
The alternative to plaintiff's reconstructing the Carroll
Ditch where it originally crossed its property is to have it relo-
cate the ditch elsewhere on its property. Bakken testified that
he may lose some parking spaces required by local building codes
if the ditch is relocated, but the ditch could be put under-
ground.
As demonstrated, the District Court's conclusions of law
and judgment are not supported by the record. The "alternative
means" available to defendants to irrigate their land are to
sprinkler irrigate at a greatly increased cost to them or to use
a ditch which they have no "right" to use.
The court's function in a case of this type is to balance
the hardships and the equities between the parties. Dobbs on
Remedies, S5.6, p. 355 (1973). We think it inequitable to burden
defendants with finding an alternative means to irrigate their
property when it is the plaintiff who has interfered with defen-
dants' use of their easement. Plaintiff must find an alternative
means of getting the Carroll Ditch water around its property.
In addition to seeking to dissolve the temporary restrain-
ing order, defendants counterclaimed for damages resulting from
its issuance. The owner of an easement may bring an action for
damages for any interference with the privileges of use included
in the easement. Section 17-201, R.C.M. 1947.
"The action is to permit the possessor of the
easement to vindicate his right and prevent
the wrongdoer from acquiring a prescriptive
right * * *." 3 Powell on Real Property,
11420, p. 526.13.
The measure of damages recoverable is the amount which will com-
pensate for all detriment proximately caused thereby, whether or
not it could have been anticipated. Section 17-401, R.C.M. 1947.
The owner of the easement may at a minimum receive nominal dam-
ages; if he proves actual damages, further recovery may be had.
3 Powell on Real Property, 11420, p. 526.13.
We find the appropriate measure of damages in this case
to be the cost to defendants of renting and operating the sprinkler
system for the 1976 season--$940.93.
In light of our decision on the foregoing issues, we
find it unnecessary to discuss whether the trial court erred in
releasing the security plaintiff had posted upon its securing
the temporary restraining order.
Finally, defendants in their brief have requested an
award of attorney fees on appeal. In the District Court de-
fendants prayed for attorney fees in their action to remove the
injunction and were awarded $500. We find that such an award is
proper. Sheridan County Electric Co-op, Inc. v. Ferguson, 124
Mont. 543, 227 P.2d 597 (1951); McDermott v. American Bonding
Co., 56 Mont. 1, 179 P. 828, (1919). Consequently, we award
$750 to defendants for their attorney fees on appeal.
The District Court's judgment is vacated and the cause is
remanded to the District Court for further proceedings consistent
with this opinion.
Justice
We concur: