Grimsley v. Estate of Spencer

NO. 82-417
IN THE SUPREME COURT OF THE STATE OF MONTANA

1983

MAY GRIMSLEY, DAVID GRIMSLEY,
EVA OXARART, LILLIAN BOOS, and
FAYE SEEL,
Plaintiffs and Appellants,

ESTATE OF WILLIAM R. SPENCER,
Deceased,

Defendants, Respondents and Cross-appellants.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable B. W. Thomas, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Leaphart Law Firm, Helena, Montana

For Respondents:
Robert L. Johnson, Lewistown, llontana

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Submitted on Briefs: June 16, 1983
Decided : October 6 ,

:jc 1 \; - $83
Filed:

Clerk
Mr. J u s t i c e L . C . Gulbrandson d e l i v e r e d t h e Opinion of the
Court.

This is an appeal from a decision of the District
C o u r t of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t , P h i l l i p s C o u n t y ,
t h e H o n o r a b l e B. W. Thomas presiding in his capacity as

D i s t r i c t J u d g e and w a t e r j u d g e , decreeing a f i r s t r i g h t t o
t h e p l a i n t i f f s t o t h e u s e o f 500 m i n e r ' s i n c h e s o f w a t e r o f

Dog C r e e k i n s o u t h e r n P h i l l i p s C o u n t y a n d a n e a s e m e n t f o r a n
i r r i g a t i o n system i n conjunction with that right; denying

p l a i n t i f f s a p r e s c r i p t i v e r i g h t t o t h e remaining w a t e r s of
the creek; and denying injunctive relief against the

defendants f o r engaging i n c e r t a i n a c t i v i t i e s with r e s p e c t
t o t h e c r e e k and p l a i n t i f f s ' i r r i g a t i o n system. Plaintiffs

appeal from that portion of the decree denying them a
prescriptive right to 1,000 miner I s inches. Defendants
cross-appeal from the grant of 500 m i n e r ' s inches to
plaintiffs. For the r e a s o n s s t a t e d below, we affirm the

j u d g m e n t of t h e l o w e r c o u r t w i t h r e s p e c t t o b o t h a p p e a l s .
Plaintiffs and defendants have been embroiled in a

six-year legal dispute over the use of waters from Dog
C r e e k , w h i c h i s l o c a t e d n e a r t h e Sun P r a i r i e community i n
southern P h i l l i p s County. The p l a i n t i f f s own a 160 a c r e
tract of land, designated as the Northeast Quarter of

S e c t i o n 2 2 , Township 24N., Range 3 1 E . M.M. The t r a c t was
originally owned by William R. Spencer, a relative of
defendants. Spencer e n t e r e d t h e a r e a a s a s q u a t t e r p r i o r t o
1 8 9 9 , made a d e s e r t e n t r y c l a i m on t h e t r a c t i n 1 9 0 1 , a n d
s u c c e s s f u l l y proved-up in 1905. Spencer remained on the
l a n d u n t i l 1 9 2 4 , when t h e t r a c t was l o s t i n a f o r e c l o s u r e
action. The land was subsequently purchased by Sherman
Grimsley, a r e l a t i v e of p l a i n t i f f s , and h a s been i n t h e i r

family since 1924. Substantially all of the land is

irrigable, and hay crops have been harvested thereon
c o n t i n u o u s l y s i n c e 1901.
Defendants own two tracts of land adjacent to the
p l a i n t i f f ' s t r a c t o n t h e n o r t h and e a s t . Dog C r e e k is a n
intermittently flowing stream a r i s i n g in the Larb H i l l s ,

located to the east of plaintiffs' and defendants' land.
The w a t e r s o f t h e creek flow westerly through o r near the

described lands. Generally, t h e c r e e k f l o w s from m e l t i n g
snow a n d e a r l y r a i n s i n March a n d A p r i l , and a g a i n i n J u n e
from r a i n . O c c a s i o n a l l y , i t w i l l f l o w a t o t h e r times d u r i n g
t h e y e a r from heavy r a i n s . Its w a t e r s a r e run-off surface

waters.
On A p r i l 22, 1899, William R. Spencer claimed 500

miner's i n c h e s o f w a t e r f r o m Dog C r e e k t h r o u g h t h e u s e o f a
dam a n d d i t c h , f o r t h e p u r p o s e o f i r r i g a t i n g t h e 160 a c r e s
of the Northeast Quarter. He filed a notice of
appropriation, a s r e q u i r e d by law. His n o t i c e was filed

w i t h t h e c l e r k and r e c o r d e r o f V a l l e y C o u n t y ( w h i c h a t t h a t
time included the area now known as P h i l l i p s County) on
April 22 and was r e c o r d e d i n Book 6 o f Water R i g h t s , p a g e

80, r e c o r d s of V a l l e y County. Be proceeded diligently t o

d i v e r t and a p p l y h i s claim t o t h e N o r t h e a s t Q u a r t e r . From
t h e evidence produced a t t r i a l , it is c l e a r t h a t i r r i g a t i o n

of the t r a c t has continued v i r t u a l l y without i n t e r r u p t i o n
s i n c e 1901. The dam a n d d i t c h c o n s t r u c t e d by S p e n c e r , and
improved and maintained by Sherman Grimsley and the
p l a i n t i f f s , a r e l o c a t e d o n t h o s e t r a c t s owned by d e f e n d a n t s .
D e f e n d a n t s a l s o make u s e o f t h e waters o f Dog C r e e k , r e l y i n g
on c l a i m s f i l e d subsequent t o S p e n c e r ' s i n 1916 and 1 9 2 0 .
Although measuring devices have never been used on the
creek, evidence produced at trial suggested that the

estimated capacity of the Dog Creek channel was
approximately 1,500 m i n e r ' s inches.

A county road runs from north to south along the
e a s t l i n e of t h e Northeast Quarter, e f f e c t i v e l y separating

the properties of plaintiffs and defendants and cutting
a c r o s s Dog C r e e k a t a b o u t t h e p o i n t w h e r e W i l l i a m S p e n c e r

and t h e p l a i n t i f f s h a v e d i v e r t e d t h e w a t e r s o f t h e creek.

F o r many y e a r s , t h e road just r a n through the creek. In

1954, however, t h e county c o n s t r u c t e d a high grade a c r o s s
t h e creek n e a r the diversion point. The c o u n t y i n s t a l l e d
three culverts, o n e t o h a n d l e t h e Dog C r e e k c h a n n e l a t t h e
north end of the grade, and two smaller c u l v e r t s on the
south end to accommodate the plaintiffs' water right.
P l a i n t i f f s c o n n e c t e d t o t h e s o u t h e r l y c u l v e r t s by a d j u s t i n g

t h e i r d i t c h from t h e c r e e k e a s t o f t h e h i g h g r a d e t o w a r d t h e

west t o t h e m i d d l e c u l v e r t , and w e s t a g a i n away f r o m t h e
culvert t o the Northeast Quarter. Under t h i s system, the
p l a i n t i f f s a r e s e r v e d by t h e m i d d l e c u l v e r t . D u r i n g times

of excess flow, Dog Creek water flows toward the north
c u l v e r t and s p r e a d s o u t , in part, flowing southwest toward
the Northeast Quarter.
Between 1924 and 1948, Sherman Grimsley and the

p l a i n t i f f s c o n s t r u c t e d h o l d i n g and s p r e a d i n g d i k e s t o manage
and a l l o c a t e t h e w a t e r s o n t h e i r lands. P l a i n t i f f s have
always used a l l t h e w a t e r s flowing i n t o t h i s system u n t i l
t h e i r needs a r e s a t i s f i e d , a f t e r which any e x c e s s w a t e r s a r e
released and allowed to f l o w on to l a n d s owned by their
neighbors, who h a v e come t o d e p e n d upon the excess flow.

T h i s s y s t e m , w h i c h is a p p a r e n t l y known t o a l l r e s i d e n t s o f
t h e Sun P r a i r i e Community, h a s g e n e r a l l y worked w e l l s i n c e
W i l l i a m S p e n c e r f i r s t d i v e r t e d Dog C r e e k o v e r e i g h t y y e a r s

ago.

The s e e d s o f t h e c u r r e n t d i s p u t e a p p e a r t o h a v e b e e n

planted after c o n s t r u c t i o n of t h e h i g h g r a d e i n 1954. A

p r o c e s s o f s i l t i n g commenced i n t h e p l a i n t i f f s ' d i t c h o n t h e

east side of the middle culvert, and weeds eventually
s t a r t e d t o grow i n t h e s i l t e d a r e a . I n 1971, one of the

d e f e n d a n t s , Vance S p e n c e r , c u l t i v a t e d t h e a r e a t o e r a d i c a t e
the weeds, and planted it wit11 grass and alfalfa. He

replanted the area in 1972. Unfortunately, Spencer's

efforts had the effect of diverting water in the ditch
northward away from the middle culvert, which serves the
plaintiffs' tract. During the period 1974 to 1976,
p l a i n t i f f s , on a t l e a s t two s e p a r a t e o c c a s i o n s , a t t e m p t e d t o
e n t e r t h e a r e a and r e p a i r t h e d i t c h , but defendants denied

them e n t r y . I n l a t e 1 9 7 6 and e a r l y 1 9 7 7 , the p l a i n t i f f s

e n t e r e d t h e l a n d d e s p i t e d e f e n d a n t s ' o b j e c t i o n s and r e s t o r e d
the ditch. Defendants did not resist this entry or
otherwise i n t e r f e r e with t h e work. Before repairs were
completed, however, the run-off waters had g o n e down the
c h a n n e l c r e a t e d by Vance S p e n c e r ' s c u l t i v a t i o n a n d away f r o m

the middle c u l v e r t . T h e r e was no a d d i t i o n a l r u n - o f f and t h e
plaintiffs were u n a b l e to irrigate and raise their usual

c r o p i n 1976.
From e v i d e n c e p r o d u c e d a t t r i a l , i t a l s o a p p e a r s t h a t
d u r i n g t h e y e a r s between 1972 t o 1976, p l a i n t i f f s t r i e d t o
resolve their problems by installing barriers across the
up-stream end o f t h e n o r t h c u l v e r t i n an a t t e m p t t o r a i s e

the water level and force the flow back to the middle
culvert. Vance S p e n c e r removed t h e s e b a r r i e r s , but during

the same p e r i o d i n s t a l l e d and removed s i m i l a r b a r r i e r s t o
the culvert, o s t e n s i b l y t o a p p o r t i o n t h e water between t h e
par ties.
The disagreements between plaintiffs and defendants
led to the filing of this law suit in 1977. In their

o r i g i n a l complaint, p l a i n t i f f s sought t o enjoin defendants

f r o m d i v e r t i n g a n y w a t e r s f r o m Dog C r e e k a n d f r o m c h a n g i n g
the channel of the creek. They also sought actual and
punitive damages for the diminished 1976 hay crop and
defendants' a l l e g e d l y w i l l f u l and o p p r e s s i v e b e h a v i o r w i t h

respect t o the exercise of p l a i n t i f f s ' water use, but the
claim for damages was waived before trial. More

importantly, plaintiffs sought a decree that they were
e n t i t l e d t o 500 m i n e r ' s i n c h e s o f t h e Dog C r e e k f l o w , b a s e d
on W i l l i a m S p e n c e r ' s 1899 c l a i m , and all of the flow in

e x c e s s of t h a t claim (approximately 1,000 miner's inches)
based on prescriptive use over the statutory period.
Plaintiffs also sought an easement for construction and

m a i n t e n a n c e of t h e d i v e r s i o n s y s t e m l o c a t e d on d e f e n d a n t s '

land. Defendants eventually filed an answer generally
denying all the allegations and claims made by the
plaintiffs. (An amended answer, filed over four years

later, raised more specific defenses and asserted
a f f irmative claims, but i t was disallowed by the court. )
The Department of Natural Resources and Conservation was
invited to intervene, but declined and w a i v e d receipt of
further pleadings, c l a i m i n g no s u b s t a n t i a l i n t e r e s t i n t h e
outcome o f t h e p r o c e e d i n g s .
After nearly five years of additional pleading,

pre-trial conferences, offers of settlement, and an
unsuccessful attempt by defendants to obtain summary
judgment, t h e case f i n a l l y came t o t r i a l i n March 1 9 8 2 . The
c o u r t heard testimony from both s i d e s concerning t h e n a t u r e
of t h e d i s p u t e and p l a i n t i f f s ' claims o n t h e w a t e r s . After
additional briefing, t h e c o u r t e n t e r e d f i n d i n g s of f a c t and

c o n c l u s i o n s of law and e n t e r e d a d e c r e e on J u l y 28, 1982.
The t r i a l c o u r t d e c r e e d t h a t p l a i n t i f f s h a d a r i g h t t o 500
miner's i n c h e s of Dog C r e e k water, w i t h a p r i o r i t y d a t e o f
April 22, 1899, and an easement on defendants' land to
maintain the diversion. The c o u r t f o u n d t h a t p l a i n t i f f s h a d
not acquired a prescriptive right to any amount of the
w a t e r s i n e x c e s s o f 500 m i n e r ' s i n c h e s . Further, the court
c o n c l u d e d t h a t t h e r e was i n s u f f i c i e n t e v i d e n c e t o show t h a t

defendants would interfere with p l a i n t i f f s' right in the
future, and therefore denied the request for injunctive
relief.
In its findings and memorandum accompanying the

d e c r e e , t h e c o u r t e l a b o r a t e d on i t s c o n c l u s i o n s w i t h r e s p e c t
t o t h e award o f water rights. The c o u r t c o n c l u d e d t h a t

p l a i n t i f f s had f a i l e d t o e s t a b l i s h a l l o f the elements of
t h e i r p r e s c r i p t i v e claim. Specifically, t h e c o u r t found no
evidence that plaintiffs' use of any excess waters was
h o s t i l e t o t h a t of defendants'. Plaintiffs did not show

that they had used water when defendants and their
predecessors had use of it; that defendants' or their
predecessors' h a y c r o p s s u f f e r e d f r o m a n y l a c k o f water f o r
the prescriptive period; and that defendants or their
predecessors could have maintained a cause of action against
plaintiffs for their use of the water. Moreover, the court
found no evidence that plaintiffs had put any of the excess
water to beneficial use on the land -- an important element
of all appropriations, whether by prescription or not.
Plaintiffs moved to amend the findings and conclusions
and to request a new trial, principally to present new
evidence concerning the irrigation needs of the Northeast
Quarter. Following a hearing, the court concluded that
there was no basis to amend its earlier findings and
conclusions and no statutory grounds for a new trial, and
denied plaintiffs' motions.
On appeal, plaintiffs allege that the trial court
erred by denying them a prescriptive right to 1,000 miner's
inches of water from Dog Creek. Specifically, they assert
that the element of hostility is not required under the
allegedly unique facts of this case, and that the evidence
before the trial court clearly preponderates in favor of a
finding that plaintiffs made beneficial use of - the
all
waters in Dog Creek. Defendants cross-appeal from the award
of the 500 miner's inches, arguing that there is no evidence
in the record to support such an award, and requesting that
plaintiffs be limited to exactly one miner's inch per acre
on their tract, or 160 miner's inches.
THE REQUIREMENT OF HOSTILE USE
When plaintiffs filed their initial complaint, they
followed the theory that their prescriptive claim to the
1000 miner's inches could be granted only upon a successful

showing of all the elements of prescription. However,
during the course of trial and on this appeal, plaintiffs
altered their theory, insisting that proof of all elements
-- especially a showing of hostile or adverse user -- is not
necessary. To support this proposition, plaintiffs rely
exclusively on our decision in Cook v. Hudson (1940), 110
Mont. 263, 103 P.2d 137, wherein, according to plaintiffs,
we held that the mere uninterrupted use of water for the
statutory period is sufficient to vest clear title in the
user, without a showing of hostility. We now turn to our
former decision to see if such a holding is readily
discernable.
In that case, the plaintiff, Cook, filed an action to
determine whether he or the defendant Hudson owned prior
rights to the waters of Grove Creek in Stillwater County.
Hudson answered on several grounds, but most importantly,
argued that Cook's title was insufficient by virtue of a
break in the claim of title between two of Cook's
predecessors in interest. In addition, Hudson claimed a
prescriptive right to the waters, predicated upon a showing
that he and his predecessors had a record of continuous,
notorious, and exclusive use over the statutory period
adverse to Cook and his predecessors. Cook, supra, 110
Mont. at 268, 282, 103 P.2d at 139, 144.
The trial court, sitting with a jury, indulged a
series of presumptions concerning ownership and possession,
and concluded that there was no fatal break in the claim of
plaintiff's title, and that defendant had not gained a right
by prescription. 110 Mont. at 272-83, 103 P.2d at 141-46.
With respect to the Cook title, however, plaintiffs in the
immediate case point to the following language in the
opinion to support their argument concerning hostile use:
 "On the question of prescriptive right,
as applied in favor of the plaintiff's
[Cook's] title, it is our opinion that
Magee's [Cook's predecessor] undisturbed
possession for a period of time in excess
of the time necessary to acquire title by
prescription, standing alone, was
sufficient to vest clear title in him."
110 Mont. at 281, 103 P.2d at 145. (emphasis added) We then
cited sections 6817 and 6818, R.C.M. 1935 [now sections
70-19-406 and 70-19-405, MCA], presumably to bolster this
conclusion. The former statute provides that occupancy of
property for any period confers a title sufficient against
all except the state and those who have title by
prescription, accession, transfer, will, or succession. The
latter refers to obtaining title by prescription to property
occupied for the statutory period. With reference to the
former statute on simple occupancy, we then had this to say
concerning Cook's title to the water rights arising from
Grove Creek:
"The only vital question that seriously
affects plaintiff's title to the prior
right initiated by Grant [one of Cook's
predecessors] is the break in the record
title heretofore mentioned . . .
The
right gained by Magee by his occupancy of
the right to use of the water in
accordance with section 6817.
[70-19-406, MCA] cannot be successfully
challenged after so long a time, and we
can disregard any question as to whether
Magee acquired [his predecessor's] right
grounded on the Grant appropriation and
still, within all recognized rules of law
and equity, hold that Magee, upon his
taking possession of the
claim, . . . ...squatter's
using the waters at all
times without let or hindrance as shown
by the record, and bringing the land on
which the water was used to patent,
established a first right to the waters
of Grove Creek against all others.
"The clear preponderance of the evidence
is to the effect that no one questioned
the exercise of the first right to the
waters of the creek by any owner or
 occupant of the land described in the
complaint from and after Grant made the
appropriation in 1892, until the
defendant invaded the right of the
plaintiffs in 1937 which resulted in this
lawsuit. "
110 Mont. at 281-2, 103 P.2d at 145-46.
From the above language, plaintiffs in the immediate
case conclude that they have acquired title to 1,000 miner's
inches of Dog Creek by virtue of uninterrupted use of these
waters between 1901 -- the time the waters were first put to
use -- and the mid-1970's -- the period when plaintiffs and
defendants began feuding over the waters. The requirement
of hostile or adverse use is mitigated by virtue of the long
period of uninterrupted use. We re-emphasize that Cook is
the only authority cited by plaintiffs to support their
argument. And, at least one commentator has interpreted
Cook to establish a new rule permitting a party to gain a
prescriptive right. See Note, Water Riqhts: Prescriptive
Right to the Use of Water in Montana, 3 Mont.L.Rev. 135, 139
(1942).
After carefully considering plaintiffs' argument, the

trial court concluded that it did not read Cook to relieve
plaintiffs from the burden of establishing hostile use. We

concur with the trial court's judgment. We believe that
plaintiffs have misconceived the Cook decision both in
itself and within the entire context of Montana water law.
At the outset, we note that Cook, unlike plaintiffs in

the immediate case, never asserted a prior right to the
waters by prescriptive use. Rather, he sought to uphold his
right only by a showing that he had title to the water right
in conjunction with title to his land. See, Cook, supra,
110 Mont. at 268, 103 P.2d at 139. Furthermore, although it
is not entirely clear from the opinion, it does not appear
that Cook's water right arose on the defendant's land, as is
the situation in the case before us. A careful review of
the opinion reveals that Cook was found to have title by
occupancy and a chain of oral conveyances. Although there
was an indication that his water right had not been
mentioned in an early conveyance between two of his
predecessors in interest, this Court indulged a series of
statutory presumptions respecting possession and ownership
and held that the water right had always been part of the
interest in the land eventually acquired by Cook. See, 110
Elont. at 272-283, 103 P.2d at 141-46. Therefore, we do not
believe that Cook can be read to support plaintiff's theory,
as neither Cook nor this Court really maintained that
he was attempting to preserve his right by a claim by
prescription.
This observation, however, still does not explain the
above-quoted language from Cook suggesting that a plaintiff
like Cook could acquire a prescriptive right to the use of
water with only a showing of continuous and uninterrupted
use. Within the context of the whole opinion, we think the
choice of language both unfortunate and confusing, and while
there may be a simple explanation for it, we do not feel at
liberty to comment on what our brethren really meant by this
language forty-three years ago. Such second-guessing would
do an injustice to the need for certainty in the law.
Instead, we assume, for the purpose of argument, that the
language represents a new rule of law concerning
prescription. After making such an assumption, however, we
reject any such rule as contrary to long-standing precedent
both within our jurisdiction and in our sister states that
adhere to similar principles of water law.
Initially, we note that our decisions concerning
acquisition of rights by prescription have always required
any party alleging prescription to satisfy every element of
the claim, including hostile or adverse user, and that a
failure to satisfy any element is fatal to the entire claim.
See, e.g., Smith v. Krutar (1969), 153 Mont. 325, 329-30,
457 P.2d 459, 461-62; King v. Schultz (1962), 141 Mont. 94,
100, 375 P.2d 108, 111; Havre Irrig. Co. v. Majerus (1957),
132 Mont. 410, 415, 318 P.2d 1076, 1078; Lamping v. Diehl
(1952), 126 Mont. 193, 203, 246 P.2d 230, 235; Irion v. Hyde
(1938), 107 Mont. 84, 88, 81 P.2d 353, 355; Verwolf v. Low
Line Irrig. Co. (1924), 70 Mont. 570, 577, 227 P. 68, 70;
Custer Con. Mines Co. v. City of Helena (1916), 52 Mont. 35,
44, 156 P. 1090, 1094; Smith v. Duff (1909), 39 Mont. 374,
378, 102 P. 981, 982; Bullerdick v. Hermsmeyer (1905), 32
Mont. 541, 544, 81 P. 334, 338; Talbott v. Butte City Water
Co. (1903), 29 Mont. 17, 26, 73 P. 1111, 1113. In addition,
we note that those western states adhering to the prior
appropriation doctrine have also so held. See, e.g., Kountz
v. Olson (1934), 94 Colo. 186, 29 P.2d 627; Church v.
Stillwell (1898), 12 Colo.App. 43, 54 P. 395; Gilbert v.
Smith (1976), 97 Idaho 735, 552 P.2d 1220; Determination of
Relative Rights In and To the Waters of Franktown Creek
(1961), 77 Nev. 348, 364 P.2d 1069; Hammond v. Johnson
(1937), 94 Utah 20, 66 P.2d 894; Campbell v. Wyoming
Development Co. (1940), 55 Wyo. 347, 100 P.2d 124, 102 P.2d
745. Thus, any rule relieving plaintiffs of the burden of
satisfying any element of the prescriptive claim would be
contrary to the weight of precedent in Montana and other
western states.
The mere fact that the claimant is a plaintiff
claiming under a prior right makes no difference with
respect to the requirements for satisfying prescription.
Montana has not yet squarely addressed the law of
prescription under these particular facts, but other prior
appropriation states have never held that plaintiffs,
claiming under prior right, need satisfy fewer or completely
different elements. See, e.g., Campbell, supra, wherein the
Wyoming Supreme Court held that:
"the mere use of water, however long
continued, does not give rise to a title
by prescription. The plaintiffs [who
were claiming title on the basis of prior
rights] were, in addition, bound to show
an invasion in a substantial manner of
the rights of the [defendant], and the
extent of that invasion during a
continuous prescriptive period."
55 Wyo. 347, 102 P.2d at 748. The closest this Court has
come to a specific consideration of a plaintiff's claim is
apparent in O'Connor v. Brodie (1969), 153 Mont. 129, 454
P.2d 920. In that decision, the plaintiff, who had
established a prior prescriptive right to waters associated
with a ditch in the trial court, did not have to relitigate
that claim on appeal, our ruling being confined to a
determination of whether plaintiff had established a
prescriptive right in the ditch. Nevertheless, in dictum,
we said that, "the evidence relative to [proof of a
prescriptive right in] the water line and diversion system
would amply support specific conclusion [sic] that
plaintiffs were owners of the water right by reason of title
by prescription." 153 Mont. at 135, 454 P.2d at 924.
Because O1Connor was required to prove a prescriptive right
in the system by establishing all elements of prescription,
we deduce that he would have been required to make a similar
showing for the water right itself.
To allow a plaintiff, or any party for that matter,
the opportunity to obtain title to water rights by a showing
of mere uninterrupted use would do a disservice to the sound
precepts of western water law. Ideally, all water rights
should be obtained in as orderly a manner as is humanely
possible. Prescription does not contribute to the
maintenance of an orderly system. Stone, Problems Arising
Out of Montana's Law of Water Rights, 27 Mont.L.Rev. 1, 17
(1965). Indeed, we recognize that, with respect to water
rights based on claims made after July 1, 1973, acquisition
of title by prescription is not permitted. See, section
85-2-301, MCA. We think this observation is akin to the
time-honored proposition that one claiming title to property
under adverse possession must bear a heavy burden to show
that his use of the property is continuous, hostile, actual,
notorious, and exclusive to the owner of record, for one who
has legal title should not be forced to give up what is
rightfully his without the opportunity to know that his
title is in jeopardy and that he can fight for it. Water
rights are much too precious to forego without a showing of
hostile or adverse use. No use of water by the plaintiffs
in this case can be said to be hostile or adverse to the
defendants unless such use actually deprived the defendants
of the water when they actually had need of it. Otherwise,
the defendants would lose something shared with plaintiffs
under conditions where sufficient water was available for
everyone ' s use.
In summary, we hold that the weight of authority
demands that any party attempting to claim title to a water
right must satisfy every element of the prescriptive claim.
To the extent that Cook may have announced a different rule,
then, we expressly disapprove of any language in that
opinion or interpretations arising therefrom which would
articulate such a different rule.
On appeal, plaintiffs have apparently not argued in
the alternative that, given a legal requirement to show
hostility, sufficient proof of hostile or adverse use was
established before the trial court. This being the case,
plaintiffs cannot claim a prescriptive right to an
additional 1,008 miner's inches of Dog Creek. If plaintiffs
wish to claim any or all of these waters, they will have to
adhere to the requirements of sections 85-2-301, MCA, et
seq., relating to applications for appropriation.
THE OUESTION OF BENEFICIAL USE
As noted previously, the failure of plaintiffs to
establish adverse user defeats their entire claim to the
1,000 miner's inches. Therefore, we need not address the
issue of whether plaintiffs proved beneficial use of the
same sum. Nevertheless, defendants have cross-appealed as
to the award of the first 500 miner's inches from Dog Creek,
claiming there is no evidence to support beneficial use of
that sum by the plaintiffs. Before turning to this issue,
however, we address plaintiffs' argument that defendants are
somehow estopped from challenging the award of 500 miner's
inches on appeal.
Plaintiffs claim that defendants have always
recognized the validity of a prior right to 500 miner's
inches in plaintiffs, and that a challenge to this right is
estopped on appeal. Specifically, plaintiffs refer to
certain sections of a motion for summary judgment made by
defendants during the course of pre-trial proceedings. In
an a£fidavit supporting the motion, defendant Vance Spencer
stated that he "always recognized the prior 500 inch
Grimsley right . . ." Similarly, in a memorandum supporting
the motion, defendant's attorney stated that, "[dlefendant
Vance Spencer's affidavit establishes clearly that
plaintiffs have a recorded 500 inch water right in Dog Creek
. . ." Finally, plaintiffs point to certain statements in
requests for admissions filed by defendant's attorney which
impliedly recognize a "recorded 500 inch Grimsley right
. . . " Plaintiffs argue that these statements from the
pleadings, taken together, indicate recognition of the right
and prevent defendants from asserting otherwise on appeal.
That a party is bound by his pleadings needs no further
elucidation. See, Fey v. A. A. Oil Corp. (1955), 129 Mont.
300, 285 P.2d 578.
Upon a thorough examination of all the pleadings, as
well as the statements of attorneys at trial, we believe
that, contrary to plaintiffs' argument, the 500 inch claim
was generally in dispute from the beginning. Defendants'
initial answer to plaintiffs' complaint contained a general
denial of all of plaintiffs1 claims, which included an
assertion of the 500 inch right. Clearly, the claim to that
much water was material to the proceedings, and the effect
of an answer generally denying the claims of a plaintiff has
the effect of putting every material allegation in dispute.
Davis v. Sullivan (1936), 1 0 3 Mont. 452, P.2d 1292.
ra
o
Furthermore, pre-trial memoranda submitted indicate that
d e f e n d a n t s were w i l l i n g n o t t o c o n t e s t p l a i n t i f f s ' claim t o
500 miner's inches if plaintiffs were willing to settle
other aspects of the lawsuit. These statements do not
constitute admissions. And, during trial, d e f e n d a n t s and
their counsel took great pains to refer to plaintiffs'

" c l a i m " a s s i m p l y t h a t and n o t h i n g more.
Moreover, t h e conduct o f p l a i n t i f f s ' a t t o r n e y a t t r i a l

and the analysis of the trial court contained in the
f i n d i n g s o f f a c t f u r t h e r persuade u s t h a t d e f e n d a n t is n o t
now c h a n g i n g h i s l e g a l t h e o r y o f t h e case. We note that

defendants' summary judgment materials -- t h e focus of

plaintiffs' concern -- were f i l e d i n e a r l y 1979. Pleadings
s u b m i t t e d a n d a r g u m e n t s made by d e f e n d a n t s a f t e r 1 9 7 9 make

i t a b u n d a n t l y c l e a r t h a t t h e 500 i n c h claim was i n d i s p u t e .

Y e t w e f i n d no i n d i c a t i o n i n t h e r e c o r d t h a t p l a i n t i f f s d i d

n o t know a b o u t d e f e n d a n t s ' a r g u m e n t s . N e i t h e r is t h e r e any
indication that plaintiffs ever objected to this alleged

change i n s t r a t e g y . A d m i t t e d l y , t h e a s s e r t i o n by d e f e n d a n t s
t h a t p l a i n t i f f s were n o t e n t i t l e d t o a l l of t h e 500 i n c h

claim w a s p e r h a p s m o s t c l e a r l y s t a t e d i n a n amended a n s w e r
stricken by the court as improperly filed. But in its

memorandum a c c o m p a n y i n g i t s d e c r e e , the t r i a l court stated
that, " e x c e p t f o r t h e a f f i r m a t i v e claim o f d e f e n d a n t s t o a

p r e s c r i p t i v e r i g h t t o t h e u s e of water n o t b e n e f i c i a l l y used
by p l a i n t i f f s , i t a p p e a r s t h a t i s s u e s r a i s e d by d e f e n d a n t s

[ i n t h e amended a n s w e r ] a r e t r i a b l e u n d e r t h e g e n e r a l d e n i a l
o f t h e o r i g i n a l answer." We think t h i s o b s e r v a t i o n by t h e
trial court constitutes further evidence that defendants
f u l l y intended t o d i s p u t e p l a i n t i f f s ' c l a i m t o t h e f i r s t 500
i n c h e s o f w a t e r i n Dog C r e e k .
I n any e v e n t , d e f e n d a n t s were n o t i n a l e g a l p o s i t i o n

to admit t h a t p l a i n t i f f s had a "right" t o waters in the
creek. P l a i n t i f f s had a burden t o p r o v e t h a t t h e y had p u t

the o r i g i n a l Spencer claim t o a b e n e f i c i a l use, and o n l y
when the trial court was satisfied that plaintiffs had
sustained their b u r d e n would the claim ever ripen into a
true right. Defendants could certainly choose not to
c o n t e s t t h e p r i o r i t y of any c l a i m t o t h e w a t e r s , and t h e y
could a l s o o p t n o t t o d i s p u t e t h e g r a n t i n g of 500 m i n e r ' s

i n c h e s i n exchange f o r a s e t t l e m e n t , b u t t h e s e o p t i o n s d i d
n o t r e l i e v e p l a i n t i f f s of their b u r d e n t o show b e n e f i c i a l

use t o obtain a right.

Construing a l l t h e p l e a d i n g s , s t a t e m e n t s of counsel a t
t r i a l , and o b s e r v a t i o n s o f t h e t r i a l c o u r t t o g e t h e r , w e f i n d
no reason to believe that defendants are now taking a
p o s i t i o n c o n t r a r y t o t h e i r a p p r o a c h b o t h b e f o r e and d u r i n g
trial. Defendants have never d i s p u t e d t h a t p l a i n t i f f s have
a p r i o r r i g h t t o some o f t h e w a t e r s o f Dog C r e e k , a n d t h a t

a p p e a r s t o b e t h e s u b s t a n c e of the defendantst position i n

the motion for summary judgment in 1979. Defendants'
a s s e r t i o n t h a t p l a i n t i f f s a r e n o t e n t i t l e d t o t h e sum o f 5 0 0

i n c h e s o f t h e w a t e r s o f Dog C r e e k is n o t a new i s s u e . They
a r e e n t i t l e d t o q u e s t i o n now, a s t h e y d i d d u r i n g t r i a l a n d
i n t h e i r subsequent p o s t - t r i a l b r i e f s , t h e award o f t h a t sum

t o t h e p l a i n t i f f s by t h e t r i a l c o u r t .
This is an equity case. In examining the trial
c o u r t ' s decree, we a r e e n t i t l e d t o review a l l q u e s t i o n s of
f a c t a r i s i n g upon t h e e v i d e n c e i n t h e r e c o r d , and d e t e r m i n e
t h e same, a s w e l l a s q u e s t i o n s o f l a w , u n l e s s f o r good c a u s e

a new t r i a l o r t h e t a k i n g o f f u r t h e r evidence i n the c o u r t

below be o r d e r e d . S e c t i o n 3-2-204(5), MCA. I n s o doing,

however, we have always indulged certain presumptions in

favor of .the trial court's determinations. We do not

s u b s t i t u t e our judgment f o r t h a t of t h e t r i a l c o u r t ; r a t h e r ,

we determine whether there is substantial evidence to

support the lower court's findings. Bagnell v. Lemery

(Mont. 1983), 657 P.2d 608, 40 St.Rep. 58; Shanahan v.

U n i v e r s a l Tavern Corp. ( 1 9 7 8 ) , 1 7 9 Mont. 36, 39, 585 P.2d

1314, 1316. By "substantial evidence," we mean that

e v i d e n c e which :

" w i l l c o n v i n c e r e a s o n a b l e men a n d o n
w h i c h s u c h men may n o t r e a s o n a b l y d i f f e r
as to whether it establishes the
p l a i n t i f f ' s case, and, i f a l l r e a s o n a b l e
men m u s t c o n c l u d e t h a t t h e e v i d e n c e d o e s
n o t e s t a b l i s h s u c h c a s e , t h e n i t is n o t
s u b s t a n t i a l evidence. The e v i d e n c e may
be i n h e r e n t l y weak and s t i l l b e deemed
'substantial' ... [ c i t a t i o n s omitted]."

O l s o n v. Westfork Properties, Inc. ( 1 9 7 6 ) , 1 7 1 Mont. 154,

158, 557 P.2d 821, 823. We will not overturn the trial

court's findings unless there is a clear preponderance o f

e v i d e n c e a g a i n s t them, and w e w i l l r e v i e w t h e e v i d e n c e i n a

l i g h t most favorable t o the prevailing party. Cameron v.

Cameron ( 1 9 7 8 ) , 1 7 9 Mont. 2 1 9 , 2 2 8 , 587 P.2d 9 3 9 , 945.

Clearly, the evidence presented by plaintiffs to

justify a prior right to any q u a n t i t y of water f r o m Dog

Creek was, to say the least, very sparse. Yet the trial

c o u r t f o u n d t h a t 500 m i n e r ' s i n c h e s -- t h e amount s p e c i f i e d
i n W i l l i a m S p e n c e r ' s 1 8 9 9 claim -- was " r e a s o n a b l y r e q u i r e d "

for i r r i g a t i o n purposes. The c o u r t b a s e d i t s d e c i s i o n on

the following "circumstances":
 "a. That is the quantity for which
William R. Spencer filed on April 22,
1899, from which this Court infers that
experience as of that date led Spencer to
specify that quantity.
"b. The soil in the area is permeable to
moderately permeable, from which the
Court infers that more than the usual
one-inch per acre is reasonably required
for penetration.
"c. The Dog Creek flow comes fast when
it comes, and 'dies quick, so that the
water must be so used as to give the soil
a maximum soaking when the water is
available.
"d. A strong flow of water is required
to cover the 160 acres by means of the
dike and ditch system of the Grimsleys."
Findings of Fact No. 13. In its memorandum accompanying the
decree and findings, the court reiterated these
circumstances to justify the award.
With respect to the first circumstance, we note
initially that this, by itself, does not support the award.
Statements made in notices of appropriation, while important
to establishing a prima facie case for the sum of water
claimed, are not entirely dispositive for the purpose of
transforming the amount claimed into a right. Holmstrom
Land Co. v. Meagher County Newland Creek Water Dist. (Mont.
1979), 605 P.2d 1060, 1065, 36 St.Rep. 1403, 1408-09, Irion
v. Hyde (1938), 107 Mont. 84, 95-96, 81 P.2d 353, 358.
Moreover, the trial court's inference is not supported by
the evidence. As the court noted in another finding of
fact, Spencer did not cultivate hay until 1901, nearly two
years after the notice of appropriation was filed. There is
no evidence in the record to indicate what experience he had
in 1899, and whether he could justify a claim of 500 miner's
inches for use on a hay crop that would not even be
developed until two years later.
Based on the available evidence, however, we cannot
say that the remaining circumstances fail to support the
trial court's decree. The testimony of the several lay
witnesses, although admittedly very general, is not so
inherently unreasonable as to warrant reversal. We
recognize that a scientific evaluation of the soil and the
requirements for cultivation is lacking, but we have often
recognized that the claims and observations of those who
work the land may be more important than the assessements of
expert technicians. As we said in Federal Land Bank v.
Morris (1941), 112 Mont. 445, 453, 116 P.2d 1007, 1010,

". . . the testimony of the men on the
land, who know the soil, the kind of
crops that can be raised on it, and who
have spread the water and dug into that
soil, and watched the effect during the
entire growing season, brings in evidence
of considerable weight [as opposed to the
opinions of experts]."
Here, there is substantial evidence, based on the
observations of key witnesses, that the water applied to
plaintiffs' land helped produce some of the best blue-joint
hay in the Sun Prairie community, and that soil conditions
and waterflow patterns warranted application of about 500
miner's inches of Dog Creek water, each time the water was
available, in order to insure an annual crop. We are
unwilling to disparage these observations, based as they are
on years of experience in working and irrigating the land.
Defendants have not pointed to anything in the court's
findings of fact that is "clearly erroneous" within the
meaning of Rule 52(a), M.R.Civ.P., save the facts
surrounding the first circumstance for justifying the award.
W e find that this error is insignificant in the context of
all of the trial court's findings.
Accordingly, the judgment of the trial court awarding

priority of 500 miner's inches to plaintiffs and denying a
prescriptive right to the remaining 1000 m i n e p inches is
affirmed.

Justice
& -

We concur:

Chief Justice
P,v h ~