No. 8 4 - 1 7 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
BRETA 0. KRAVIK,
Plaintiff and Appellant,
YVONNE R . LEWIS, 1mR.Y BENEPE,
et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
McKinley Anderson, Bozeman, Montana
For Respondent:
Landoe, Brown Law Firm, Bozeman, Montana
Berg, Coil, Stokes & Tollefsen, Bozeman, Montana
-
Submitted on Brief: Sept. 26, 1 9 8 4
Decided: December 4, 1984
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This appeal is from a iudgment of the Gall-atin County
District Court following a suit for partition. The District
Court awarded defendants certain stock, representing a water
right, in the West Gallatin Canal Company and Breta Kravik
appeals .
Appellant Kravik originally filed her partition suit in
Gal1atj.n County District Court on January 12, 1981. Mrs.
Kravik and the respondents had previousl-y inherited a
320-acre tract of land south of Bozeman, Montana. This
estate of inheritance, common1.y known as the Benepe place,
constituted the western half of Section 27, Township two
south, Range five east, M.P.M., Gallatin County. In addition
to the real property, the estate included appurtenant water
rights: two shares in the Middle Creek Ditch Company and
one-half share in the West Gallatin Cana.1 Company. See
appendix.
The undivided interests of the cotenant devj-sees were
as follows:
Raymond H. Kittle, Trustee . . . 1/2
Breta 0 . Kravik. .... . . . . 1/4
Mary Benepe Schoenbach . . . . . 1-/16
Yvonne B. Lewis. .... . . . . ]-/I6
Bruce J. Kittle. .... . . . . 1/16
Raymond H. Kittle. ... . . . . 1/16
None of the cotenants resided on the property; they retained
Charles Vandenhook as a ra.nch manager. Vandenhook supervised
the several farmers who actively worked the property.
On Vandenhook's suggestion, Rreta Kravik initiated the
partition action in 1981. Kravik was represented in the
action by McKinley Anderson. Vandenhook worked towards
reaching an amicable settlement between the parties. Ry
mid-1982, the cotenants tentatively agreed on a division of
p a - r c e l s and w a t e r company s t o c k . The appendix t o t h i s o p i n -
i o n i n d i c a - t e s t h i s d i s t r i b u t i o n o f p a r c e l s which w a s e v e n t u -
ally f i n a l i z e d .
The p a r t i e s f u r t h e r a g r e e d t h a t t h e two s h a r e s o f t h e
Middle Creek Ditch Company should be divided among the
c o t e n t a n t s i.n d i r e c t p r o p o r t i o n t o t h e i r u n d i v i d e d i n t e r e s t
i n t h e e s t a t e of inheritance. Thus t h e Middle Creek w a t e r
was allocated:
Raymond H. K i t t l e , T r u s t e e . 1 share
B r e t a 0. Kravik. . . . . . . 1 / 2 share
Mary Benepe Schoenbach . . . 1/8 share
Yvonne R . Lewis. . . . . . . 1 / 8 share
Bruce J . K i t t l e . . . . . . . 1/8 share
Raymond H . K i t t l e . ..... 1/8 share
Conflict and the present controversy arose over the
one-half share of West G a l l a t i n w a t e r . Negotiations broke
down in the summer of 1981 when Breta Kravik refused to
r e l i n q u i s h h e r r i g h t s t o t h i s wa.ter. A . t t h i s t i m e it was t h e
parties' belief t h a t t h e West G a l l a t i n Canal Company c o u l d
not further fractionalize the one-half share. Kravik ' s
p a r t i t i o n c o m p l a i n t made no mention a b o u t any of t h e a p p u r t e -
nant water right-s. D e f e n d a n t s ' answer f i l e d March 1 0 , 1983,
d e s c r i b e d t h e s e r i g h t s f o r t h e f i r s t t i m e and a l l e g e d t h a t
plaintiff had. r e f u s e d t o a g r e e on an e q u i t a . b l e d i v i s i o n of
such w a t e r r i g h t s .
A t a pretrial c o n f e r e n c e September 1 5 , 1983, t h e p a r -
t i e s a g r e e d t h a t t h e l a n d a n d t h e Middle Creek w a t e r would b e
divided a s previously described. A p r e t r i a l o r d e r s i g n e d by
c o u n s e l f o r t h e p a r t i e s s t a t e d t h a t t h e p a r t i e s were " n o t i n
agreement on t h e d j - v i s i o n o f West G a l l a t i n Canal Company; and
t h a t t h e W e s t G a l l a t i n Canal Company would n o t d i v i d e s h a r e s
i n t o l e s s than 1 / 2 share."
Reviewing these facts, we note that before the parties
ever entered the courtroom in this suit for partition, the
balance of the property was divided by settlement. Ironical-
ly the only remaining contested. property was a half share in
a water companv that was stipulated as being indivisible. The
parties further stipulated that the defendants Mary
Schoenbach and Yvonne Lewis gave up their jnterest in the
West Gallatin water and were not liable for any attorney fees
in the action.
In the course of the nonjury trial held December 16,
1983, testimony was given by the pl-aintiff, the farmers who
leased the land and the ranch manager. Witnesses for both
sid-es agreed that the only water available to irrigate a
certain 13.4-acre parcel in the southwest quarter of Section
27 was from the West Gallatin canal. The topography of the
Renepe place and the established gravity flow of the water
canals precludes the use of Middle Creek water on this par-
cel. For purposes of reference only, this parcel is labeled
the "dry parcel" in the appended diagram. Witnesses for the
defendants testified that the full amount of the one-half
share of water, approximately fifty miner's inches, was
required to build enough head in the diversion ditch leading
away from the canal to reach all the dry parcel.
The evidence further established that the West Gallatin
water was used to supplement Middl-e Creek water in the irri-
gation of the plaintiff's parcel in the northwest quarter of
Section 27. The farmer accomplished this by pumping water
out of the West Gallatin canal where it crosses the Middle
Creek ditch. The Middle Creek water passes over the Gallatin
canal via a pipe. The pumped water is dumped into the Middle
Creek ditch where it flows north to the Kravik parcel and a
sprinkler system. The tenant farmer used West Gallatin or
Middle Creek water depending on the relative quantity
available.
The trial court filed findings of fact and conclusions
of law February 7, 1384. These findings reflect the testimo-
ny summarized above. The court concluded that the defendants
Kittles would receive the one-half share in the West Gallatin
Canal. The parties were ordered to bear their own attorney
fees.
Kravik has appealed, raising the following issues:
1. Did the District Court err by awarding the defen-
dants the one-half share in the West Gallatin Canal Company?
2. Assuming the water right was properly awarded to
defendants, was the plaintiff entitled to compensation?
3. Was the plaintiff entitled to attorney fees for
bringing the partition action?
4. Are the findings of fact and conclusions of law
ambiguous and in error?
The standard of review this Court employs in reviewing
a nonjury civil action is clear. Findings of fact are not
set aside unless clearly erroneous. Rule 52 (a), M.R.Civ.P.
This standard was recently enunciated specificzll-y in regard
to a partition suit. See Palmer v. Palmer (Mont. 1983), 657
P.2d 92, 40 St.Rep. 21. The practical. effect of this standard
is that this Court wil.1 not substitute its ju6gment for the
trier of facts. Our function is confined to determining
whether there is substantial credible evidence to support the
court's findings. We view the evid.ence in a light most
favorable to the prevailing party, recognizing that
substantial evidence may conflict with other evidence and
still support the findings. Lace17 v. Herndon (Mont. 1983) ,
668 P.2d 251, 255, 40 St.Rep. 1375, 1380.
Appellant attacks the basic fairness of the court's
decision awarding the West Gallatin water to the defendants.
It is argued that all Breta Kravik desired was to have her
name 1-eft on the stock certificate so her tenant farmer could
continue to use West Gallatin water when needed. The pro-
posed findings of fact her attorney submitted to the court
requested that she retain an undivided one-third interest in
the one-half share along with Raymond Kittle and Bruce
Kittle. Error is claimed by the trial court's failure to
recognize jn findings of fact testimony that the water had
been cooperatively used in the past and could be so used in
the future.
This argument sounds discordant in a partition proceed-
ing. Such an action has been traditionally recognized as a
means by which cotenants, unwilling and incapable of managing
property jointly, sever their interests and exercise indepen-
dent control over the resulting parcels.
The equity of this proceeding must be examined in its
entirety. A half section of farmland has been partitioned
such that each cotenant has receive6 his or her correct share
of the estate of inheritance. Each party has received legal
rights to water such that tillable acreage may be irrigated.
The fact that one party may have received less water than it
started with does not make the partition inequitable. See
Sullivan v. Sullivan (1.971), 82 N.M. 554, 484 P.2d 1264 (fact
that lands partitioned to the plaintiff had more water did
not render the partition inequitable where there was suffi-
cient and permanent water on the property partitioned to
defendant to serve the grazing acreage).
The record reflects that the KravFk parcel has been
awarded suffici-ent water for irrigatjon. The farmer ' s prac-
tice of commingling Gallatin and Yjddle Creek water was one
of convenience more than necessity. While the plaintiff
Rravik alleged a need to draw Gallatin water during a dry
summer in 1980, this testimony was not supported by any other
witness. Numerous farmers who I-ived on and vrorked the land
for decades stated it was unusual for the canal flows to
reach a level where water rights were actually limited by the
ditch walker. In any case, the parcel most in need of the
West Gallatin water was the "dry parcel," previously referred
to, in the southwest quarter of Section 27.
This brings us to a second consideration concerning the
equity of this partition. Partitions should be fashioned to
cause the least degree of harm to the cotenants and to confer
no unfair advantage on any one cotenant. Prior use by one
cotenant cannot be given greater weight than any other con-
sideration in fashioning the partition. Gillmor v. Gil3.mor
(TJtah 1982), 657 P.2d 736. This adage is particularly true
here, where the parcel. afforded plaintiff historically used
West Gallatin water, but following partition, the "dry par-
cel" in the southwest quarter is more in need of this
water--such land beinq incapable of being irrigated by Middle
Creek water without resort to an expensive sprinkler system.
For the foregoing reasons, we hold that the partition
of the property and appurtenant water rights was based on
substantial credihle evidence and resulted in an equitable
division of the Benepe place among the cotenants.
IJ
In lieu of an award of the West Gallatin water riqht,
appellant alternatively requests compensation for the loss of
the water right. We recognize that there is a statutory and
common law basis for such compensation.
Section 70-29-209, MCA, provides that a court may
adjudge compensation to be made by one party to another when
it appears that a partition cannot be made equal between the
parties. The statute recognizes the power of the court to
make compensatory adjustment under ordinary principles of
equity. This equitable practice in partition proceedings is
known as the doctrine of owelty. See Chesmore v. Chesmore
(Okla. 1971), 484 P . 2 d 516.
A basic premise of owelty is that there be inequality.
The equalization of a partition by the award of owelty should
not be resorted to where it is possible to make a fair and
equitable division without it. The use of the word "may" in
section 70-29-209, MCA, reflects the discretionary nature of
this role of the trial court.
In the present case there is no inequality to warrant
compensation. As previously discussed, the cotenants to the
estate of inheritance each received sufficient water for
their respective parcels.
Furthermore, this issue was never raised in the plead-
ings or at trial. Counsel lost his hid for the West Gallatin
water at trial and raises owelty as a new theory before this
Court. An appellate court is not a proper forum for testing
alternative or overlooked theories of recovery.
As a third issue, appellant claims the District Court
erred in denying attorney fees. The partition statutes
express1.y allow the award of such fees providing certain
conditions are met. See section 70-29-218, MCA. The reason
for this statutory exception is that counsel in a partition
proceeding often incurs expenses that benefit all the coten-
ants. A pa.rtition, whether it is ami-cable or a.dversariab,
results in the cotenant's clear title and unfettered owner-
ship. Therefore, wh.en costs are incurred by one party that
serve the common benefit, the statute al-lows the expense to
be divided in proportion to the parties' interests. A recent
decision of this Court as well. as an ancient decision recog-
nize this practice. Lawrence v. Donovan (~ont.1983), 673
P.2d 130, 40 St..Rep. 1944; Murray v. Conlon (18971, 19 Mont.
389, 48 P. 743.
In addressing this issue, we must look at the nature of
the services rendered by appellant's attorney. The original
complaint filed in January 1981 made no mention of the dis-
puted water rights. 0nl.y land was sought to be partitioned.
The ranch manager, Charles Vandenhook, actively sought an
amicable settlement of the partition. To a large extent he
succeeded, and in July 1981 the parties agreed on a division
concerning a.11 the property and appurtenant rights excepting
the West Gallatin water. Kravik objected to this part of the
division.
The defendants first mentioned. the disputed water share
in their answer filed in March 1983. When the partition suit
proceeded to trial, plaintiff's counsel argued for coopera-
tive and joint use of the West Gallatin water. As discussed,
counsel has alternatively requested compensation before this
Court.
Fees expended by plaintiff's counsel are largely at-
tributable to the controversy over the water right. As
noted, the balance of the partition was accomplished by
Charles Vandenhook acting directly with the cotenants.
Plaintiff's counsel. litigated in an attempt to clear Kravik's
title to an undivided interest in the water company. The
work was performed only on behalf of the individual client.
Therefore, we find that the services were not performed for
the common benefit of the parties and are not subject to
apportionment under section 70-29-218, MCA. See Williams v.
Miranda (19581, 159 Cal.App.2d 143, 323 P.2d 794 (where the
plaintiff' s action was purported to be one of partition but
was subsequently determined to be a proceeding to establish
the plaintiff's ownership of an undivided one-half interest
in trust property, attorney services were for the interest of
plaintiff alone and not for the common benefit).
Appellant has relied on this Court's 1897 decision of
Murrav supra, where it was stated that "the statute [prede-
cessor to section 70-29-218, MCA] recognizes that proceedings
in partition are for the common benefit of all parties to the
action. .. " 48 P. at 744. While it may have been possible
in the nineteenth century to broadly generalize about parti-
tion proceedings, such is not the case today. Nonetheless,
Murray is immediately distinguishable: the Silver Bow mining
claim a t issue there was sold and the proceeds distributed
because coownership of the claim was "productive of great
inconvenience to the parties, and particularly the plain-
tiff." 48 P. at 743. In other words, it was a true parti-
tion action, a far cry from the case at bar which began with
a complaint for partition and ended with a plea for coopera-
tive use.
IV
As a final matter appellant points to a claimed error
in the lower court's conclusion of law. Conclusion of law
no. 1 provides that the West Gallatin water is awarded to the
defendants Kittles and shall be appurtenant to the southwest
quarter of Section 27. Appellant correctly notes that Bruce
Kittle and Raymond Kittle received as individuals the north
one-half of the southwest quarter of the northwest quarter of
Section 27 and the south one-half of the southwest quarter of
the northwest quarter of Section 27 respecti~~ely. Raymond
Kittle, as trustee, received the southwest quarter of Section
27. See appendix. Appellant argues that the ambiguity in
the judgment requires a new trial.
Where findings and conclusi.ons adopted by the trial
court are supported by the evidence and are sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision, their adoption will not provide grounds for
reversal. Matos v. Rohrer (Mont. 1983), 661 P.2d 443, 450,
40 St.Rep. 366, 375. Although there is technical merit in
appellant's argument, the discrepancy does not merit a new
trial or affect our decision.
We do, however, remand this cause for clarification as
our review has uncovered a further inconsistency. Findings
of fact nos. 7 and 8 grant Yvonne Lewis and Mary Benepe
Schoenbach the northern and southern half respectively of the
northwest quarter of the northwest quarter of Section 27.
This language contradicts finding of fact no. 5, the pretrial
order dated September 15, 1 9 8 3 , stipul-ation for entry of
judgment dated December 16, 1983, and the judgment pursuant
to stipulation also dated December 16, 1983. Those documents
indicate the opposite result, which is diagrammed in the
appendix. There must be a remand for clarification of the
award of land parcels. At this time, the Di.strictCourt will
have t.he opportunity to clarify the award of the West
Gallatin water right.
The District Court is affirmed in all. respects except
for the d.iscrepancies described above. The cause is remanded
solely for the purpose of correcting the findings of fact and.
concl.usions of 1.a.w. Such corrections will not affect our
decision.
&&
7i!!$.Chief Justice
We concur: