No. 91-072
IN THE SUPREME COURT OF THE STATE OF MONTANA
OWEN D. BUTLER and EIWA D. BUTLER,
Plaintiffs and Respondents,
-vs-
JOHN V. GERMANN and BARBARA A. GERMANN,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli.
The Honorable ~ o u ~ l a G. Harkin, Judge presiding.
; '
COUNSEL OF RECORD:
For Appellant:
David L. Pengelly; Knight, Maclay & Masar, Missoula,
Montana
For Respondent:
Jeffrey H. Langton, Hamilton, Montana
Submitted on B r i e f s : J u n e 28, 1991
ilt;!; J I' 3991 Decided: December
Filed
Justice Terry N. Trieweiler delivered the opinion of the Court.
Owen and Erna Butler sought an injunction requiring John and
Barbara Germann to repair damage to an irrigation ditch that runs
through the Germanns' property before delivering water to the
Butler's property. The District Court for the Fourth Judicial
District in Ravalli County issued a preliminary injunction, and
after a hearing, issued a permanent injunction, together with an
award of damages, costs, and attorney's fees. The Germanns appeal.
We affirm.
The issues are:
1. Did the District Court err in ordering the Germanns to
repair the ditch?
2. Did the District Court err in permanently enjoining the
Germanns from obstructing, encroaching upon, disturbing, or
otherwise impairing the Butlers' ditch easement?
3. Did the District Court err in awarding the Butlers $2000
as damages?
4. Did the District Court err in awarding the Butlers
attorney's fees and costs incurred subsequent to the preliminary
injunction?
The Butlers and the Germanns own adjacent tracts of land in
Ravalli County. Both have appurtenant water rights. The Waddell
Ditch, which flows northward through the Germanns' property onto
the Butlers' property, supplies the water rights of both parties.
The Butlers have historically irrigated their property by
temporarily damming the Waddell Ditch. This caused water to back
up in the ditch and then overflow the downslope bank of the ditch,
irrigating their land in a sheet or flood. Topographical factors
make this the most efficient means of irrigating the land in
question.
The Germanns moved onto their property in March 1988. Without
consulting the Butlers, John Germann attemptedto change the course
and flow rate of the ditch on his property by digging it deeper and
cleaning out sediment. He also bladed off from 12 to 18 inches of
the downslope bank and used the dirt as fill in his barnyard.
On June 28, 1989, the Butlers filed a complaint and requested
a preliminary injunction to restrain the Germanns from interfering
with the ditch. The Butlers alleged that the Germanns'
modification of the ditch had reduced the water level in the ditch
so far that the Butlers could no longer use it for sheet
irrigation. They also claimed damages for a hay crop lost because
of insufficient irrigation. The Germanns counterclaimed for
damages allegedly due to flooding from the direction of the
Butlers' property.
After a hearing on June 28, 1989, the District Court granted
a preliminary injunction ordering the Germanns to raise the banks
of the ditch to allow sheet irrigation of the Butler property. The
court appointed Fourth Judicial District Water Commissioner Thomas
Gale as special master to monitor the Germanns' repairs to the
ditch.
Gale was satisfied with the adequacy of the Germanns' repair
efforts. The Butlers, however, were not. At the permanent
injunction hearing, they presented expert testimony that although
the repairs had restored the flow in the Waddell Ditch to the
Butler property, the repaired ditch banks were leaky and unstable.
The District Court entered judgment for the Butlers. It
ordered the Germanns to raise the ditch banks to a uniform height
throughout their property and then line the repaired ditch with
bentonite. The court also permanently enjoined the Germanns from
further interference with the ditch, awarded $2000 in damages to
the Butlers, and denied the Germanns' counterclaim. The court then
directed the Germanns to pay the Butlers' costs and attorney's
fees .
I
Did the District Court err in ordering the Germanns to repair
the ditch?
The fundamental purpose of any remedy is to return the
plaintiff to his or her rightful position, "the position or state
the party would have attained had the [wrong] not occurred." See
generally Billings Chitic v. Peat Manvick Main & Co. ( 1 9 9 0) , 24 4 Mont . 32 4 , 34 5,
797 P. 2d 899, 913. The Germanns rely on this principle in accusing
the District Court of "overkill." They suggest that the District
Court was without power to require them to do more than restore the
banks of the ditch to their former height, and they conclude that
the District Court's judgment will compel them to provide the
Butlers with a much better ditch than they had before.
We disagree. The mere restoration of the height of the ditch
banks to their former level did not restore the ditch to its former
integrity. That much was clear from all the evidence that was
offered.
John Germann testified that in May 1990, after he partially
restored the lower ditch banks in compliance with the District
Court's preliminary injunction, the downslope bank of the ditch
washed out close to the Butlers1 fence. He admitted that he had
not sufficiently compacted the material with which he restored the
bank and that this caused the washout. He also admitted that there
was potential for further washouts throughout his property for the
same reason.
Stanton Cooper, the general manager of the Butler property,
testified that he was not satisfied with the Germannsl partial
repairs. He watched John Germann pile dirt back onto the downslope
bank of the ditch. He testified that Germann used only a very thin
layer of dirt and that water continued to seep through it, and that
the seepage would continue unless the Germanns sealed the ditch.
It was his personal opinion that at the time of trial the
partially repaired banks were insufficiently stable to hold the
significant surges of natural runoff which could be expected to
flow through the ditch during certain seasons of the year. He
testified that the banks, as they existed at the time of trial,
would soften, allow further seepage, and eventually wash out.
Specifically, he did not believe that in the long run the partially
repaired banks were stable enough to hold water in the fashion that
5
was necessary for the Butlers to continue their historical practice
of sheet irrigation.
Darwin ~iteca,the Butlers' lessee, agreed that the Germanns'
repairs were inadequate. He was familiar with the Waddell Ditch as
it existed on the Germann property before the Germanns disturbed it
in 1989. He testified that the partially repaired lower banks of
the ditch were 12 to 15 inches lower than they had been before the
Germanns interfered with them. He was concerned that without a
court order requiring the Germanns to elevate the banks further
they could wash out. He believed that if the Germanns did not
immediately restore the banks the Butlers1 hay crop would burn up
again like it did in 1989, He explained that in 1989 after Germann
disturbed the lower bank of the ditch the Butler property did not
receive sufficient water because it was all washing out over the
destroyed lower bank on the Germann property.
Barry Dutton, a soil scientist and irrigation specialist
retained by the Butlers, inspected the Germannsl repairs and
prepared a report which the District Court received into evidence.
I n large part, Mr. Duttonls conclusions formed the basis for the
District Courtls findings of fact. The relevant portion of that
report stated as follows:
The soil material Mr. Germann has used to build up his
ditch banks [in compliance with the preliminary
injunction] is classified under the USDA-SCS system as a
sandy loam. This soil type is quite permeable to water
and significant leakage can be expected through these
newly-constructed banks. The banks will seal themselves
to some degree over a 5-10 year period but will always
leak to some degree in this soil.
OPTIONS WHICH WOULD ALLOW MR. BUTLER TO IRRIGATE
HIS FIELD IN THE HISTORIC FASHION
* The most direct method for returning to pre-existing
conditions would be for Mr. Germann to restore the ditch
and banks to their original configuration. Banks should
be 1-2 feet higher than the expected water level. They
should be 3-4 feet thick on the downhill side and
re-vegetated. Any construction activity will expose
soils with high permeabilities which can be expected to
suffer excessive significant leakage for 5-10 years and
will always leak to some degree. Lining with bentonite,
open-topped culvert or other material would prevent this
problem. Bentonite should be used only under direction
of SCS personnel or other qualified professional[s] using
SCS specifications. All ditch re-locations and
re-construction should be surveyed for proper grade and
bank height.
* A second option is to have Mr. Germann build up the
banks on his property to a greater height. Several
important concerns must be satisfied for this to work
satisfactorily. The banks must be of sufficient height
and width (1-2 ft above the expected water level and 3-4
feet thick on downhill side). The banks must be
re-vegetated. Either significant leaks must be expected
for a period of 5-10 years, or the ditch must be lined.
All ditch re-locations and re-constructions should be
surveyed for proper grade and bank height.
During his testimony, Mr. Dutton explained that he made his
recommendations simply to insure continued flow through the ditch on
the Germanns' property and to avoid a problem with the ditch washing
out in the future, thereby eliminating the flow of water to the
Butlersf property. None of these potential problems was a cause for
concern before the Germanns destroyed the banks of the ditch.
Even the Germannsr own expert, Andrew Fisher, testified that
further restoration was necessary in order to guarantee the integrity
of the restored ditch bank. Mr. Fisher, a civil engineer who
specializes in water resources engineering, testified that for their
own benefit he recommended to the Germanns that they strengthen the
ditch bank in the area that had been disturbed. He agreed during
testimony at trial that his recommendation was similar to the
recommendation made by Mr. Dutton.
Specifically, Mr. Fisher recommended that the ditch banks be
increased by a height of six to 12 inches throughout roughly a third
of the length of the ditch on the Germann property. He agreed that
there was legitimate concern about the stability of the banks where
the soil had been recently replaced, and explained the problem as
follows:
The reason I recommended thickening was when I viewed it,
the condition at the time I viewed it, the bank had been
recently--it was recent construction, and I didn't feel
the soil had settled to a point where it was stable
enough to withstand some higher flows. With higher
flows, wetre not just talking elevation, there's
velocity, forces on the insides of the bank, you could
get scouring on the bank from higher velocities.
Mr. Fisher also agreed that good vegetative cover on the bank would
help its stability, but that when he viewed the property the bank was
mostly bare dirt. Tom Gale, the special master who initially found
the Gemannst restoration efforts adequate, testifiedthathe did not
disagree with Mr. Fisher's opinion that the ditch banks on the
Germanns' property needed to be thickened through about a third of
their 1ength.
Based upon the testimony in this case the District Court had no
choice other than to arrive at the decision that it reached. The
District Court found as a fact that:
[Tlhe banks of the Waddell Ditch which Mr. Germann
supposedly restored are only of marginal height and that
the soil used in the restoration process is a sandy loam
that is quite permeable and will require 5-10 years to
fully seal without lining. Mr. Dutton concluded in his
report af May 1 3 , 1990 that the only way to solve the
problems caused by Defendants without forcing Plaintiffs
to modify their irrigation system and practices is to
have the banks of the Waddell Ditch through Defendants'
property further heightened, thickened, and re-vegetated
and lined.
This finding of fact was fully supported by not only substantial
evidence, but by the uncontroverted evidence offered at the time of
trial. The Germanns did not restore the ditch to a condition where
it could be considered reliable for future use. Once the Germanns
disturbed the ditch, it was not sufficient merely to put the dirt
back on the banks. Further repairs were necessary to restore the
utility and safety of the ditch.
In civil bench trials, we will not overturn the trial court's
findings of fact unless they are "clearly erroneous." Rule 52(a),
M.R.Civ.P. We conclude that the District Court's finding that
further restoration was necessary to return the Butlers to their
rightful position was not clearly erroneous. We hold that the
District Court did not err in ordering the Germanns to make further
repairs.
Did t h e District Court err in permanently enjoining the Germanns
from obstructing, encroaching upon, disturbing, or otherwise
impairing the Butlers' ditch easement?
In its final judgment, the District Court issued the following
permanent injunction:
[A] permanent and perpetual injunction is hereby granted
against Defendants and Defendantst servants, agents,
employees, and all other persons acting under the
control, authority, or direction of Defendants, and they
are hereby enjoined, restrained, and commanded from
obstructing, encroaching upon, disturbing, or otherwise
impairing Plaintiffs1 ditch easement, known as the
Waddell itch, or from interfering with plaintiffsi
rights to enter, inspect, repair, and maintain said ditch
easement as allowed bylaw. The restoration-modification
requirements of Section 2 of this Judgment are an
exception hereto. In addition Defendants shall be
privileged to repair or replace any existing culverts on
their property as necessary with culverts of equal or
greater capacity.
We note at the outset that ditch encroachment is prohibited by
statute in Montana. Section 70-17-112, MCA. Thus, the District
Courtls injunction did not change the obligation that the Germanns
already had under the law.
The Montana statute governing final injunctions provides :
[A] final injunction may be granted to prevent the breach
of an obligation existing in favor of the applicant
where :
....
( 3 ) the restraint is necessary to prevent a multiplicity
of judicial proceedings .. ..
Section 27-19-102, MCA. The Butlers satisfied this statute at
trial. The Germanns owed the Butlers an obligation to refrain from
impairing the Waddell Ditch easement. See 5 70-17-112, MCA, There
was sufficient evidence for the District Court to find that
restraint was necessary in order to avoid further judicial
proceedings which would present unnecessary expense to both
parties.
The Germanns argue that the permanent injunction was
unwarranted because they say they have no plans to interfere with
the ditch in the future. We disagree. The issuance or refusal of
an injunction is addressed to the discretion of the trial court.
Frarnev. Frame (1987), 227 Mont. 439, 740 P.2d 655. Here the District
Court found a likelihood of future interference by the Germanns
with the Butlersr ditch easement.
The record supports this finding by the District Court. At
the hearing on the preliminary injunction, John Germann testified
that he planned further relocation of the ditch on his property in
order to facilitate the construction of a fish pond. He did not
retreat from this position at the hearing on the permanent
injunction. It was clear from the testimony at the second hearing
that Germann did not take the Butlers' concerns seriously.
We hold that the District Court did not err in permanently
enjoining any further obstruction, encroachment, disturbance, or
impairment of the Butlers' ditch easement.
I11
Did the District Court err in awarding the Butlers $2000 as
damages?
Darwin Titeca, the Butlersr lessee, testified that as the
result of the damage to the ditch he was unable to irrigate and
that he had to purchase winter fodder elsewhere at a cost of $2380.
The Butlers then credited Titeca with $2000 on his lease payment.
Titeca also testified that he believed the Butlers gave him a
credit for services he performed for them while leasing the
property and that he thought he was underpaid by $1000 to $1500.
From this, the Germanns conclude that the services were worth
$1000, that the lease credit was for both the services and the
replacement fodder, and that, therefore, the lost hay was only
11
worth $1000. We believe the District Court could have reasonably
inferred that Titeca meant he was underpaid by $1000 to $1500 even
after the Butlers gave him a credit for the hay.
As we explained in Part I of this opinion, we will not
overturn the trial court's findings in a civil bench trial unless
they are clearly erroneous. Rule 52 (a), M.R. Civ.P. The court's
finding that the lease credit was for lost hay was not clearly
erroneous. Accordingly, we hold that the District Court did not
err in awarding the Butlers $2000 in damages.
IV
Did the District Court err in awarding the Butlers attorney's
fees and costs incurred subsequent to the preliminary injunction?
The statute prohibiting ditch encroachment authorizes an award
of costs and attorney's fees to the prevailing party in actions
brought to enforce its provisions. Section 70-17-112, MCA. The
Butlers prevailed below. Since we affirm that judgment, we
necessarily conclude that the District Court did not err in
awarding the Butlers their costs and attorney's fees. Furthermore,
because the Butlers have prevailed on appeal, we award them the
costs and attorney's fees they have incurred by reason of this
appeal.
Affirmed.
We c o n c u r :
Justices
Justice John Conway Harrison, dissenting.
I dissent. 1 view t h e f a c t s of this case differently than the
majority and would reverse the District Courtls judgment ordering
Germanns to further reconstruct the portions of Waddell Ditch on
their property.
f feel the District Court incorrectly found that Butlers were
unable to obtain adequate irrigation water after Waddell Ditch was
repaired by Germanns in 1989. According to Germanns, if Butlers
were receiving adequate irrigation water after the 1989 repairs to
the ditch, it is my view that the District Court erred by ordering
Germanns to do further work on the ditch.
In actions tried without a jury we may not set aside findings
of fact unless the findings are t'clearly erroneous," and we are
required to give "due regardt'to the opportunity of the trial court
to judge the credibility of witnesses. Rule 5 2 (a), M.R.Civ.P.
Findings of a district court are not clearly erroneous when based
upon substantial credible evidence. Boylan v. Van Dyke (1991), 247
Mont, 259, 264, 806 P.2d 1024, 1027; Pare v. orriso on (1990), 241
Mont. 218, 222, 786 P.2d 655, 657.
Viewed in the light most favorable to the prevailing party, a
district court's decision must be reversed if its findings are not
based upon substantial evidence and if a clear preponderance of
evidence supports contradictory findings. Christensen v. Britton
(1989), 240 Mont. 393, 401-02, 784 P.2d 908, 913. If the record
shows that the same result would have been attained despite the
error, an error by the trial court against the appellant is not
grounds for reversal. Rule 14, M.R.App.P.
The District Court made the following finding:
Plaintiffs1 lessee has since [I989 repairs to Waddell
Ditch] encountered extreme difficulty in obtaining a
sufficient flow of water through the Waddell Ditch to
irrigate his downstream fields, resulting in a loss of
hay production to the extent of approximately 25 tons.
Butlers concede that the disputed finding is erroneous since
Germanns' 1989 repairs to Waddell Ditch restored sufficient water
flow to permit irrigation of the Butler property in 1990. Butlers
disagree, however, with Germanns' assertion that the District
Court's order was based solely upon a misconception that water flow
continued to be impeded at the time the trial was held and point to
other findings supporting the District Court's judgment.
Through my examination of the record and findings I feel. that
the District Court erred in finding that the flow of water through
Waddell Ditch continues to be impeded. The District Court ignored
the special master's report that Germanns had complied fully with
the District Court's order.
The court followed the recommendations of the expert hired by
Butlers, Barry Dutton, and ordered Germanns to elevate the lower
bank of Waddell Ditch by one foot, to widen the banks to three feet
at the top, compact the banks, revegetate the banks, and line the
ditch with bentonite. Mr. Germann altered the ditch in 1989
because water was overflowing its low banks and blocking the
entrance to his garage. Testimony did not indicate that the ditch
had been lined. The law requires that the plaintiff be restored to
the position he would have attained had the wrong not occurred.
Billings Clinic v. Peat Marwick Main & Co. (1990), 244 Mont. 324,
345, 797 P.2d 899, 913. In this case, the District Court's
judgment, by ordering Germanns to build a better ditch than existed
before Germanns bought the property, restored Butlers to a better
position than they occupied before the wrong.
In addition, the court ignored the special master's report
that Germanns had restored Waddell Ditch and that water was flowing
onto Butlers1 property in sufficient amounts to allow for
irrigation. The special master was the District Court's own
appointee and Chief Water Commissioner of the Fourth Judicial
District, Tom Gale. He visited the site on five occasions and took
several photographs of the work in progress. Mr. Gale was fully
qualified to judge the restoration of Waddell Ditch.
Finally, Butlers themselves concede that the ~istrictCourt's
finding that Butlers continued to have difficulty obtaining
sufficient water for irrigation was erroneous. I would reverse the
portion of the District Court's judgment ordering Germanns to
further reconstruct the portions of Waddell Ditch on their
property.
December 12, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
David L. Pengelly
Knight, Maclay & Masar
P.O. Box 8957
Missoula, MT 59807
Jeffrey H. Langton
Attorney at Law
P.O. Box 1497
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA