No. 80-138
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1981
79 RANCH, I N C . , a Montana C o r p o r a t i o n , and
HARRY VANDERVOORT,
P l a i n t i f f and A p p e l l a n t ,
REUBEN C . PITSCH,
D e f e n d a n t , Respondent and C r o s s - A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l ~ i s t r i c t ,
I n and f o r t h e County o f Golden V a l l e y .
H o n o r a b l e LeRoy McKinnon, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Ask and P r a t t , Roundup, Montana
Thomas Ask a r g u e d , Roundup, Montana
Moulton, B e l l i n g h a m , Longo and M a t h e r , B i l l i n g s , Montana
C o r r i n e C o u r t n e y a r g u e d , B i l l i n g s , Montana
F o r Respondent :
F e l t and L a l o n d e , B i l l i n g s , Montana
L a u r e n c e R. M a r t i n a r g u e d , B i l l i n g s , Montana
Submitted: J a n u a r y 1 5 , 1981
Decided: J u l y 9, 1981
Filed: JUL 9 - 198g
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
This case involves adjudication of the water rights of
three users of water from Big Coulee Creek in Golden Valley
County. The users are Reuben C. Pitsch, the upstream user;
79 Ranch, Inc., a Montana corporation, the midstream user;
and Harry Vandervoort, the downstream user. Both the
upstream user and midstream user appeal from a judgment of
the Golden Valley District Court which held in effect, that
the water rights of the upstream user started in 1976, when
they were first put to beneficial use, and that the water
rights of the midstream user start in 1973, when an appropriation
was filed and the water put to a beneficial use. Both the
upstream and midstream users claim water rights dating back
to 1893 when a predecessor in interest, The Montana Cattle
Company, first filed a claim to use the water. Both the
upstream and midstream users claim that the water rights
were later put to a beneficial use, and that they were not
abandoned.
This case started when the upstream user, Reuben Pitsch,
was taking large quantities of water from Big Coulee Creek
during the exceedingly dry spring and summer of 1977. His
water use considerably cut off the water supply available to
both the midstream user and the downstream user. When
efforts at negotiation failed, the midstream user and downstream
user filed suit and asked for a declaratory judgment determining
the water rights as between the parties. They also asked
for a permanent injunction and damages. The trial court
decided only the relative rights of the parties, and left
the other matters to be resolved in further proceedings.
In declaring the water rights of all three parties, the
trial court entered only bald findings and conclusions,
leaving no basis for this Court to examine the rulings to
determine how these findings and conclusions were reached.
For this reason, we must remand this case to the District
Court and we direct that it enter findings and conclusions
that are reflective of the evidence presented at trial and
the legal contentions of the parties. The findings and
conclusions presently before this Court provide no basis for
meaningful review.
We set out in this opinion why the findings and con-
clusions are insufficient. We consider separately the
findings and conclusions made determining the relative water
rights of each party.
(a) Water Rights of the Upstream User--Reuben Pitsch:
The upstream user, Reuben Pitsch, claimed a water right
arising from an 1893 notice of appropriation by The Montana
Cattle Company, a predecessor in interest. He claimed
further that during the 1920's his predecessors in interest
put the water to beneficial use by actually irrigating the
land. Testimony and other evidence was presented in support
of these claims. The upstream user also presented evidence
of a notice of appropriation filed in 1973 to use water from
Big Coulee Creek.
As to the 1893 water right claim, the trial court
failed to analyze any of the evidence, but simply stated in
a finding that the upstream user "failed to prove by a
preponderance of the evidence his alleged water right of a
one-third interest in 500 inches of Big Coulee Creek, which
water right was allegedly filed by The Montana Cattle Company;
for 500 inches on April 1, 1893, Book 22-257." That is it.
The trial court does not explain why this 1893 claim was not
proved.
As a safety valve, the trial court in the next finding,
again without any analysis, found that "Pitsch and his
predecessors in interest abandoned their alleged interest in
any claimed or asserted water rights appurtenant to their
real property, prior to 1976 by non-user for a proven period
running from 1911 to 1976 coupled with proof of voluntary
relinquishment of any claimed water right and an intent not
to resume possession thereof for a beneficial use."
By these findings, the upstream user's claimed water
rights were denied. These findings are so conclusory, so
general, that we cannot tell why the trial court ruled that
user
the upstreamldid not establish a water right, and we cannot
tell why the trial court held in effect that the upstream
user, through his predecessors in interest, had abandoned
any claimed water right.
In the last finding relating to the upstream user, the
trial court found that the first proved water right was an
appropriation dated May 30, 1973 by Bert Schaff, the predecessor
in interest to the upstream user. But the trial court also
found that the "water was first put to a beneficial use in
July, 1976 on 68 acres on Section 35, Township 5 North,
Range 19 East, M.P.M." No explanation is provided as to why
the trial court found that the water was first put to a
beneficial use in 1976.
From these findings, the trial court set the water
priority of the upstream user at 68 inches dating from July
1, 1976, and then entered a conclusion of law that the
upstream user had only proved a right to 68 inches dating
from July 1, 1976.
These findings and conclusions are so inadequate that
they cannot form the basis for a reviewable judgment.
(b) Water Rights of the Midstream User--79 Ranch
Inc. :
The midstream user, 79 Ranch Inc., also claimed in 1893
an 1893 interest arising from a claim filed by its predecessor
in interest, the Montana Cattle Company. Testimony and
other evidence was admitted in support of this claim.
Testimony and other evidence was also admitted in support of
a water right appropriation filed on July 13, 1973.
The court made three conclusory findings on the claims
of the midstream user. As to the 1893 water right claim,
the trial court failed to analyze any of the evidence and
simply found that "the Plaintiff 79 Ranch has failed to
prove by a preponderance of the evidence its alleged water
right of a one-sixth interest in 500 inches of Big Coulee
Creek, which water right was alleged filed by The Montana
Cattle Company for 500 inches on April 1, 1893, Book 22-
227."
Again, as a safety valve, the trial court also found
that "79 Ranch and its predecessors in interest abandoned
its alleged interest in any claimed or asserted water rights
appurtenant to its real property, prior to 1976 by non-user
for a proven period running from 1913 to 1976 coupled with
proof of voluntary relinquishment of any claimed water right
and an intent not to resume possession thereof for a beneficial
use." Any analysis of why abandonment of a claimed water
right has occurred is totally lacking.
By these findings, the midstream user's claimed water
rights were denied. These findings are so conclusory, so
general, that we cannot tell why the trial court ruled that
the midstream user did not establish a water right based on
an 1893 claim, and we cannot tell why the trial court held
in effect, that the midstream user, through his predecessors
in interest, and his own action or nonaction, had abandoned
any claimed water right.
In the last finding relating to the midstream user, the
trial court found that the first proved water right "is that
appropriation of Eugene Schaff et ux, dated June 13, 1973,
for 30 cubic feet of Big Coulee Creek for sprinkler irrigation,
filed on behalf of the plaintiff 79 Ranch, which water was
first put to a beneficial use on June 13, 1973 on 45 acres
on Section 5, Township 5 North, Range 19 East, M.P.M."
From these findings, the trial court set the water
right priority of the midstream user at "45 inches for use
on SW 1/4 Section 25-5N-19E., with priority date as of June
13, 1973," and then entered the same as a conclusion of law.
Again, we must state that these findings and conclusions
are so inadequate that they cannot form the basis for a
reviewable judgment.
(c) Water Rights of the Downstream User--Harry Vandervoort:
The trial court entered three findings giving the
downstream user water rights arising out of three separate
appropriation dates: 1,000 inches arising from a recorded
right of April - -
21, 1902; 320 inches arising from a recorded
water right of December - -
11, 1925; and 300 inches arising
from a recorded water right of - -11, -
June 1926. (Emphasis
added.) In the next finding, the trial court stated that the
downstream user "has proved diversion and actual irrigation
of the lands under said water rights as of the --by
year 1924
the testimony of E. J. Dolve, Sr." (Emphasis added.) The
trial court did not explain the diversion and appropriation
in 1924 of water right claims filed in 1925 and 1926.
The trial court then found that each of these water
rights had been consolidated "into two tracts totalling
approximately 50 acres . . ."
-6-
From these findings, the trial court established a
priority date for the downstream user as of June 1, 1924,
and also entered the same as a conclusion of law.
Again, we must state that these findings and conclusions
are so inadequate that they cannot form the basis for a
reviewable judgment. As in the case of the upstream user
and the midstream user, we must remand this case to the
trial court to enter more adequate findings and conclusions
on the claims of the downstream user.
The judgment as to each party is vacated and this cause
is remanded for entry of proper findings and conclusions.
We Concur:
.............................
Justices
Mr. J u s t i c e Frank B. Morrison, Z r . , dissenting:
I r e s p e c t f u l l y d i s s e n t from t h e m a j o r i t y o p i n i o n . There
is, i n m opinion, a s u f f i c i e n t record before t h i s Court t o
y
determine t h e i s s u e s a t bar.
This d i s s e n t does not d i s c u s s evidence respecting t h e
e x i s t e n c e of w a t e r r i g h t s claimed by t h e upstream and midstream
u s e r s d a t i n g back t o 1893. The t r i a l c o u r t found t h a t t h e s e
r i g h t s had been abandoned. The b a s i s of t h a t f i n d i n g i s n o t
clear. However, t h e r i g h t s had n o t been used f o r a t l e a s t 50
years. I would h o l d t h a t such a c o n t i n u o u s nonuse c r e a t e s a
r e b u t t a b l e presumption of abandonment. To r e b u t t h i s presump-
t i o n of abandonment, t h e r e must be e s t a b l i s h e d , n o t m e r e l y ex-
p r e s s i o n s of d e s i r e o r hope, b u t some f a c t o r c o n d i t i o n e x c u s i n g
l o n g p e r i o d s of nonuse. CF & I S t e e l Corporation v. Purgatoire
River (Colo. 1 9 7 3 ) , 515 P.2d 456. Also s e e Cundy v . Weber
(S.Dak. 1 9 4 1 ) , 300 N.W. 1 7 ; C i t y of Anson v. A r n e t t (Tex. 1 9 5 2 ) ,
The argument i s h e r e made by t h e u p s t r e a m u s e r t h a t p r e -
d e c e s s o r s i n i n t e r e s t d i d n o t have s u f f i c i e n t f u n d s t o i r r i g a t e .
I n r e p l y i n g t o t h e same argument, t h e Colorado c o u r t , i n CF & I
Steel, said:
". . . C o n s i d e r i n g t h e l a r g e demands f o r a l l of t h e
appropriatable water i n t h i s s t a t e . . . it might
be s a i d t h a t n e a r l y e v e r y abandoned w a t e r r i g h t
c o u l d have i t s non-use j u s t i f i e d by t h e economics
t h a t might p r e v a i l sometime i n t h e f u t u r e f o r u s e of
t h i s water . . . T h i s gleam-in-the-eye p h i l o s o p h y
i s n o t c o n s i s t e n t w i t h t h e p r o t e c t i o n and p r e s e r v a -
t i o n o f e x i s t i n g w a t e r r i g h t s . " CF & I S t e e l ,
515 P.2d a t 458.
There i s s u f f i c i e n t e v i d e n c e of nonuse t o j u s t i f y a f -
f i r m a n c e of t h e t r i a l c o u r t ' s f i n d i n g of abandonment.
The downstream u s e r c l a i m s 50 i n c h e s of w a t e r under a
n o t i c e of a p p r o p r i a t i o n f i l e d i n 1926 f o r 300 i n c h e s . The
upstream u s e r c o n t e n d s t h a t 20 i n c h e s of t h i s w a t e r s h o u l d
have a p r i o r i t y d a t e a f t e r 1941. S i n c e t h e upstream u s e r
c a n n o t show he i s e n t i t l e d t o any w a t e r r i g h t w i t h a p r i o r i t y
d a t e between 1926 and 1941, he h a s no s t a n d i n g t o c o n t e s t t h e
downstream u s e r ' s p r i o r i t y d a t e s ; t h e q u e s t i o n i s n o t p r o p e r l y
b e f o r e t h i s Court. V i d a l v . K e n s l e r ( 1 9 3 5 ) , 1-00 Mont. 592,
594, 51 P.2d 235.
The p r e d e c e s s o r i n i n t e r e s t t o t h e upstream u s e r f i l e d
f o r 30 c u b i c f e e t p e r second on May 30, 1973. The p r e d e c e s s o r
o r d e r e d a s p r i n k l e r system c a p a b l e of i r r i g a t i n g a t l e a s t 320
acres. T h i s system was n o t used b e c a u s e n e c e s s a r y p a r t s w e r e
never d e l i v e r e d . I n August of 1975, t h e u p s t r e a m u s e r pur-
c h a s e d t h e l a n d i n q u e s t i o n i n c l u d i n g w a t e r r i g h t s and t h e p r e -
d e c e s s o r ' s i r r i g a t i o n system. The upstream u s e r was unsuc-
c e s s f u l i n o b t a i n i n g t h e n e c e s s a r y p a r t s and as a consequence,
he p u r c h a s e d a new s p r i n k l e r system and i n s t a l l e d i t i n t h e
w i n t e r of 1975-1976. The system c o n s i s t s of a 1200 g a l l o n p e r
m i n u t e pump on t h e c r e e k which f e e d s a p i v o t s p r i n k l e r having
two 1 6 0 - a c r e s e t t i n g s . The upstream u s e r i s p r e s e n t l y i r r i g a t -
i n g 320 a c r e s .
The t r i a l c o u r t found t h a t t h e upstream u s e r f i r s t p u t
w a t e r t o a b e n e f i c i a l u s e i n J u l y 1976 b u t d i d n o t make any
s p e c i f i c f i n d i n g s on t h e q u e s t i o n of whether t h e upstream
u s e r ' s p r e d e c e s s o r proceeded w i t h r e a s o n a b l e d i l i g e n c e a f t e r
f i l i n g i n 1973. I f p u r c h a s e of t h e i r r i g a t i o n equipment was
n o t d i l i g e n c e , t h e n t h e upstream u s e r would n o t have a w a t e r
right. I f t h e upstream u s e r ' s c l a i m r e s u l t s from a p p l i c a t i o n
t o a b e n e f i c i a l u s e i n J u l y 1976, t h e upstream u s e r would have
n o t h i n g b e c a u s e of f a i l u r e t o f i l e under t h e 1973 a c t .
N e v e r t h e l e s s t h e t r i a l c o u r t found t h a t t h e upstream u s e r was
e n t i t l e d t o 68 i n c h e s of w a t e r , t h e same b e i n g t h e amount f i r s t
a p p r o p r i a t e d i n J u l y of 1976.
F o r t h e t r i a l c o u r t t o be u p h e l d w i t h r e s p e c t t o i t s
f i n d i n g t h a t t h e u p s t r e a m u s e r was e n t i t l e d 6 8 i n c h e s o f
w a t e r , t h e t r i a l c o u r t would have n e c e s s a r i l y had t o f i n d
r e a s o n a b l e d i l i g e n c e on t h e p a r t of t h e upstream u s e r ' s pre-
decessor i n i n t e r e s t . W e should invoke t h e d o c t r i n e of i m -
p l i e d f i n d i n g s which would t h e n e s t a b l i s h t h a t t h e u p s t r e a m
u s e r ' s p r e d e c e s s o r i n i n t e r e s t had e x e r c i s e d r e a s o n a b l e
d i l i g e n c e a f t e r f i l i n g i n 1973 and t h a t t h e 1973 f i l i n g was
a l i v e a t t h e t i m e o f t h e f i r s t b e n e f i c i a l u s e i n J u l y 1976.
S u b s e q u e n t a p p l i c a t i o n s t o b e n e f i c i a l u s e were p u r s u a n t t o
t h e " r e a s o n a b l e d i l i g e n c e " e x e r c i s e d i n 1973. I would f i n d
t h a t t h e 320-inch a p p l i c a t i o n p r e s e n t l y i n p l a c e , was t h e
c u l m i n a t i o n o f a p l a n s t a r t i n g i n 1973 and t h a t t h e u p s t r e a m
u s e r t h e r e f o r e h a s a 320-inch w a t e r r i g h t d a t i n g from May 30,
1973.
The m i d s t r e a m u s e r f i l e d J u n e 1 3 , 1 9 7 3 , and t h e r e a f t e r
purchased an i r r i g a t i o n system. The m i d s t r e a m u s e r , u n d e r
t h i s f i l i n g , h a s p e r f e c t e d a w a t e r r i g h t t o t h a t amount o f
w a t e r which h a s b e e n p u t t o a b e n e f i c i a l u s e p u r s u a n t t o t h e
1973 f i l i n g .
The t r i a l c o u r t f o u n d t h a t t h e m i d s t r e a m u s e r had a p p l i e d
4 5 i n c h e s o f w a t e r f o r t h e p u r p o s e of i r r i g a t i n g 4 5 a c r e s o f
land. However, t h e e v i d e n c e shows t h a t o n l y 30 a c r e s o f l a n d
was i r r i g a t e d . I would, t h e r e f o r e , f i n d t h a t t h e midstream
u s e r h a s a 3 0 - i n c h w a t e r r i g h t d a t i n g from J u n e 1 3 , 1973.
I would remand t h i s c a s e t o t h e ~ i s t r i c C o u r t w i t h d i r e c -
t
t i o n s t o e n t e r judgment i n a c c o r d a n c e w i t h t h e v i e w s e x p r e s s e d
i n t h i s d i s s e n t i n g opinion.