No. 83-348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
GILBERT H. CATE, and MAXINE CATE,
husband and wife, ROBERT L. CONNELL;
SIDNEY M. GOODRICH & MILDRED GOODRICH,
et al. ,
Plaintiffs and Appellants,
C. LEO HARGRAVE, and ELLEN HARGRAVE,
his wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable James M. Salansky, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Patrick 1.
1 Springer, Kalispell, Montana
For Respondents:
Murphy, Robinson, Heckathorn & Phillips; Dana L.
Christensen, Kalispell, Montana
Submitted on Briefs: January 19, 1984
Decided: April 19, 1984
Filed:
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This action was initiated September 22, 1981, in the
Flathead County District Court. Plaintiffs, owners of proper-
ty surrounding McGregor Lake, sought a judicial determination
of the extent of defendants' senior water right on the outlet
stream of the lake, McGregor Creek. Plaintiffs specifically
sought a determination of whether defendants were wasting
water by their failure to maintain a dam on the outlet of the
lake and whether defendants were exceeding their lawful
appropriation in amount or place of use. Defendants counter-
claimed alleging plaintiffs damaged their dam and headgate.
From a judgment in favor of defendants, plaintiff property
owners appeal.
The defendants are successors in interest and owners of
two valid appropriations of water, one dated June 27, 1919,
and the other dated October 13, 1924. These appropriations
total thirteen cubic feet of water per second which is di-
verted from McGregor Creek several miles below the outlet of
McGregor Lake. At the outlet the defendants' predecessor in
interest constructed in the early 1900's a dam and headgate.
The structure is located on land leased by defendants and is
designed to regulate the flow from the lake into the creek.
The structure has the potential to affect the water level of
McGregor Lake. The dam and headgate have not been maintained
by defendants for several years and there is leakage around
the structure.
Since 1968, when they purchased their ranch, defendants
have been putting to beneficial use up to thirteen cubic feet
of water per second. Their use varies with the season, their
needs, and climatic conditions. Plaintiffs have valid water
rights for domestic purposes but all are later in time than
defendants' existing rights. Plaintiffs desire that the
level of the McGregor Lake be kept as high as possible for
consumptive, aesthetic and recreational purposes. It is
their contention that defendants have a responsibility to
maintain the dam at the outlet of McGregor Lake and close the
headgate in the dam in the fall when they are not irrigating.
At trial both parties filed motions for partial summary
judgment which were denied preceding the trial on October 25,
1982. The District Court bifurcated the cause, left certain
equi-table matters to the court and factual matters to the
jury. After a three-day trial the jury found for defendants
on the issue of whether defendants' senior right was being
properly exercised a.nd that defendants incurred damage
through plaintiffs' interference with their headgate. The
court accepted the special verdict of the jury and awarded
defendants court costs and attorney fees as a measure of
their damages on the successful counterclaim. From this
judgment, plaintiffs appeal and defendants cross-appeal
alleging damages beyond those recognized by the District
Court.
We have framed the issues raised by plaintiffs, appel-
lants hereinafter, as follows:
1. Did the District Court err when it denied appel-
lants' motion for partial summary judgment and not determine
as a matter of law the complete extent of defendants' water
right?
2. Were the conclusions of law of the District Court
contrary to the facts and evidence?
3. Was the award of attorney fees an inappropriate
measure of damages?
4. Are the defendants entitled to additional damages
for crop loss and decreased cattle production?
I
Appellants claim that their cause was prejudiced when
the trial court failed to reach the questions of the exact
extent of defendants' water right, whether defendants could
change the area of beneficial use, whether the concept of
beneficial use restricted the season of use, and whether the
defendants had a duty to maintain the dam. Appellants claim
that these questions had to be answered prior to the ques-
tions answered by the iury in the special verdict. Absent
the court's ruling on these issues presented in the motion
for summary judgment, appellants argue they were denied a
fair determination of the factual issues.
Appellants correctly recognize that a motion for summa-
ry judgment under Rule 56(c), M.R.Civ.P., is properly granted
only when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d
509. In denying the parties' motions for partial summary
judgment the District Court recognized that there were out-
standing questions of fact concerning the Hargraves' (defen-
dants below) water right. Given the fact that at this point
in the proceeding, there was conflicting evidence as to how
much water the Hargraves were putting to a beneficial use,
the amount of acreage irrigated, and other factors that would
affect the court's determination of the existing water right,
we find no error in the decision denying the motion for
partial summary judgment. Appellants simply failed to sus-
tain their burden of establishing the absence of any genuine
issue of material fact. Pretty on Top v. City of Hardin
(1979), 182 Mont. 311, 315, 597 P.2d 58, 60.
Appellants' argument that the denial of the motion for
partial summary judgment prevented a "fair determination of
all factual issues" is logically inconsistent. The motion
was denied precisely because there were outstanding issues of
fact. These factual issues of primary interest to appellants
were addressed by the jury a.fter hearing the testimony and
receiving the evidence.
The special verdict form that was submitted and re-
turned by the jury read essentially as follows:
(1) Are defendants using in excess of
their valid appropriation of water?
Answer: No.
(2) Are defendants failing to properly
maintain the headgate at the west end of
McGregor Lake? Answer: Yes.
(3) Is this failure resulting in a waste
of water? Answer: No.
(4) Was there any damage to plaintiffs1
water systems, aesthetic or recreational
use of the lake as a result of defen-
dants' using in excess of their appropri-
ation or wasting the same? Answer: No.
(5) Did plaintiffs damage the headgate?
Answer: Yes.
(6) If so, which of the plaintiffs
caused the damage? Answer: Francis and
Alice Shepard.
Counsel for both parties stipulated on day one of the trial
that the above questions comprised the issues to be decided
at trial. The fact that the jury reached conclusions con-
trary to those proposed by appellants does not render the
determination either incomplete or unfair.
As a preliminary matter to discussing appellants'
second issue, we note the circumstances surrounding the
initiation of this lawsuit.
An abnormally dry and cold winter in 1979 caused the
level of McGregor Lake to drop to an unusually low level.
The cold weather and lack of an insulating water depth re-
sulted in problems with appellants' water systems; intake
pipes laid on the bottom of the lake froze. At this point,
appellants began to research the Hargraves' water rights and
discovered the downstream right was prior in time. While
appellants may not have had actual notice of the senior
rights when they purchased their parcels on the lake, as
junior appropriators they took their rights with constructive
notice of the conditions existing at the time of their appro-
priations. Quigley v. McIntosh (1940), 110 Mont. 495, 505,
103 P.2d 1067, 1072. This basic principle of western water
law and the law of Montana controls much of our decision
today. See also, State ex rel. Crowley v. District Court
(1939), 108 Mont. 89, 88 P.2d 23; Oliver v. Skinner (1951),
190 Or. 423, 226 P.2d 507.
Appellants object to the trial court's conclusion of
law that all issues raised by the complaint and pretrial
order were determined. The court indicated that further
details delineating their water rights should be addressed by
the Water Courts.
Appellants object to the judgment because it did not
address the question of whether Hargraves' water use could be
restricted to their seasonal needs for irrigation. As it now
stands, water flows uninterrupted all year over the headgate
of the dam on McGregor Lake.
Generally, there is no division of the year into an
irrigation season and a storage season, so as to give later
direct users a seasonal preference over earlier reservoirs or
vice versa. See, People ex rel. Park Reservoir Co. v.
Hinderlider (1936), 98 Colo. 505, 57 P.2d 894; Trelease,
Water Law, 3rd ed. at 106-107 (1979).
There have been instances where Montana courts have
restricted an appropriator to a certain amount of water to be
applied during certain times of the year. An appropriator in
Smith v. Duff (1909), 39 Mont. 382, 102 P. 981, who changed
his use to irrigation was restricted to using the water in
the spring and fa-11, which is when the water was used in a
prior mining operation. Similarly, in Galiger v. McNulty
(1927), 80 Mont. 339, 260 P. 401, the defendant was restrict-
ed to a certain amount of use from May to November in accor-
dance with a pattern established by his original use in
mining. In both instances, the Court looked to an estab-
lished prior pattern of use differing from the present use.
Appellants have presented no evidence of a former pattern of
use differing from what the Hargraves are using now, were
using during the problem year of 1979, or presumably will be
using in the future. The District Court cannot be faulted
for not reaching the question of seasonal use, particularly
when issues stipulated by counsel to be determined at trial
did not specify such.
In 1940 this Court in Quigley v. McIntosh (1940), 110
Mont. 495, 103 P.2d 1067, was presented with a factual situa-
tion where senior appropriators of Three Mile Creek, an
adjudicated stream in Powell County, began to use a greater
amount of water from the creek than a 1913 decree allowed.
The prior decree only addressed the acreage of land the
senior appropriators could irrigate and the flow rate that
could be applied. In this respect, the case is analogous to
the case at bar. When the appropriator diverted water to new
acreage, a fish pond allegedly used as a swimming hole, the
trial court found the junior users upstream to be injured.
This Court affirmed, noting that while the 191.3 decree did
not specify days that water could be taken or a total volume
of water, this could not be interpreted as a right to an
absolutely uninterrupted flow. Such interpretation would be
erroneous as it would sanction the senior appropriator's
expanded use to the detriment of subsequent appropriators and
beyond what could be beneficially applied. Quigley v.
McIntosh, 110 Mont. at 510, 103 P.2d at 174.
We concur with the broad. holding of Quigley that a
District Court may in certain instances "fill in" a pre-1973
water decree with further delineations such as the time or
season of use and acreage of application. See Stone, Montana
Water - - - 1980s, at 61 (1981).
Law for the Rut we would limit
such judicial interpretation of decrees to situations similar
to that addressed by the Quigley Court: where the appropria-
tor has either expa.nded his appropriation, exceeded what can
be benefically used or damaged junior appropriators.
Appellants' reliance on Quigley cannot be supported as
the trial court found the Hargraves were not using water in
excess of their appropriation, were not wasting such water
and appellants were not damaged.
Appellants have alleged that the Hargraves added acre-
a.ge to land originally irrigated under their 1919 and 1924
apropriative rights. The Hargraves' predecessor in interest
did begin in 1941 to irrigate eighty acres of land in the
middle of the existing irrigated acreage. These la.nds were
not previously irrigated. However, from this Court's 1897
decision in Murray v. Tingley (1897), 20 Mont. 260, 50 P.
723, until the 1973 Water Use Act, a party in Montana could
acquire a right on an unadjudicated stream by putting the
water to a beneficial use. Musselshel~lValley Co. v. Cooley
(1929), 86 Mont. 276, 283 P. 213. By the limitation of the
Montana law in effect in 1941, a change in place of use was
possible only if other claimants were not injured. Appel-
lants are precluded from claiming they were adversely affect-
ed by the addition of the eighty acres in 1941 by the simple
fact that they held no rights to the waters of McGregor Lake
or McGregor Creek at that time.
We will not impose upon a downstream senior appropria-
tor an affirmative duty to maintain a dam and headgate for
the benefit of upstream junior water users. If there had
been a finding that operation of the dam injured appellants1
interests, our decision might be otherwise.
Appellants1 additional objection to the trial court's
conclusions of law concerned the finding that appellants'
counsel had no objection to the special verdict damage award
of attorney fees as a measure of damages. This conclusion
reads as follows:
"5. That the Court inquired of Plain-
tiffs' counsel after the verdict was read
as to whether he had any objections to
the nature of the damage award, such
award specifying attorneys fees in an
unstated amount rather than specifying a
dollar figure as damages, and Plaintiffs'
counsel then stating he had no
objection."
Appellants allege that there was a discussion about the
attorney fees, but such discussion was not in front of the
jury as the conclusion of law implies. It is argued that
'
this mischaracterization of the appella.nts position on the
propriety of the damage award prejudiced their cause.
We have reviewed the transcript in detail and find the
conclusion of law neither misleading nor prejudicial. We do
not agree with counsel that the statement implies the conver-
sation was held in front of the jury.
I11
Appellants' third contention is that the award of
attorney fees was an inappropriate measure of damage. The
verdict returned by the jury did not. specify the damages in
dollars and cents despite instructions on the verdict form.
The jury inserted "court costs and lawyers fees" in lieu of a
specified dollar amount. District Court Judge Salansky set a
later hearing to determine the exact amount of those fees and
costs. At this hearing it was determined that fees and costs
totaled $ 1 0 , 9 3 3 . 5 0 and $ 2 , 5 8 1 . 1 9 respectively. This award
was incorporated into the judgment of the court dated January
25, 1983.
Prevailing parties are generally not awarded attorney
fees in Montana unless a statutory or contractual provision
expressly provides for such. This Court has recognized the
right of the District Court to grant a party complete relief
under their powers of equity. Holmstrom Land Co. v. Hunter
(1979), 1 8 2 Mont. 43, 5 9 5 P.2d 3 6 0 ; Foy v. Anderson ( 1 9 7 8 ) ,
176 Mont. 5 0 7 , 5 8 0 P.2d 1 1 4 .
The case at bar can be distinguished from the above
cited cases in which an award of attorney fees was made to
make the prevailing party whole. In the present case attor-
ney fees were granted by the jury in their special verdict
form as a measure of damages. The jury found that appellants
Francis and Alice Shepard caused damage to the Hargraves'
headgate by trespassing and attempting to stop the flow of
water through the dam. This reprehensible form of self-help
provoked events which culminated in the lawsuit. The
Hargraves as defendants were compelled to expend substantial
sums of money to prove that which was obvious to them from
the start: their valid senior right to thirteen cubic feet
per second of McGregor Creek. The damages are consequential
to the interference with the headgate, though not so remote
to preclude recovery. We affirm the trial court's determi-
nation that such damages are compensable. We do not condone
the method by which the jury calculated the amount of the
damage award, by simply substituting and granting attorney
fees and costs. However, given the particular circumstances
presented, we will not disturb the award for its technical
flaws.
IV
As a final matter, we address the Hargraves'
cross-appeal claiming additional compensation for decreased
cattle production and crop losses due to appellants' inter-
ference with their headgate. This claim was timely presented
by the testimony and evidence in the proceeding below. The
jury considered and refused such compensation. We will not
substitute our judgment for theirs. The cross-appeal is
denied.
The judgment of the District Court is affirmed.
3Chief Justice p & A Q -
44$ k
We concur: