No. 90-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
HAROLD MILDENBERGER and MARILYN
MILDENBERGER, husband and wife,
Plaintiffs and Respondents,
JOSEPH GALBRAITH and DENISE
GALBRAITH, husband and wife,
Defendants and Appellants. CLERK OF SUPREME COCJRS
STATE OF NlONTAPdA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
David L. Pengelly; Knight, Maclay & Masar, Missoula,
Montana
For Respondents:
John D. Greef, Attorney at Law, Hamilton, Montana
For Amicus:
Hon. Marc Racicot, Attorney General; Harley R.
Harris, Assistant Attorney General, Helena, Montana
Tim D. Hall, Legal Counsel, Department of Natural
Resources, Helena, Montana
Submitted: May 14, 1991
Decided: July 1, 1991
Filed:
n
Clerk
TRULOCK
Property
LEGEND
A. Trulock Property where F. Point where Newman-Kern channel
water surfaces from springs. crosses Fish Hatchery Road and joins
disputed ditch.
B. Point where ditch enters
Galbraiths' property. G. Hedge ditch on Galbraith Property.
C. Point where ditch crosses H. Point where combined flows of disputed
Fish Hatchery Road. ditch and Newman-Kern channel enter
Hedge ditch on Galbraith property.
D. West Branch of ditch on
Galbraith property. I. Hedge ditch on Mildenberger property.
E. Channel arising on Newman/Kern
property.
Several naturally occurring springs are located on the west
half of Section 9 (point A) from where the water in question
surfaces. The property is currently owned by Ron and Janet
Trulock, who are not parties in this litigation. Water arising
from the springs flows in a northwesterly direction in an open
channel passing onto the Galbraithsl property at point B. The
water continues to flow northward in the ditch system on the
Galbraithsl property past points C and F to point H where the water
enters the Hedge Canal and finally flows on to the Mildenbergersl
property at point I.
In addition to the springs at point A on the Trulock property,
there are also springs located on the Newman-Kern property at Point
E. The water arising from these springs flows northward and merges
with the disputed ditch at point F. The portion of the ditch that
gave rise to this litigation lies between points C and F.
The ditch system in question was developed by the Galbraithsl
predecessor, Marcus Daly, for irrigation purposes, sometime prior
to 1927. Water flowed through the ditch year-around and was used
by the Galbraithsl predecessors for irrigation during the summer
months and stockwater during the winter months. Since
approximately 1927, the Mildenbergers and their predecessors have
used the water entering their property in the Hedge Canal for
stockwater.
In the 1930 Is, some of the springs on Section 9 (point A) were
developed by the State Fish and Game Department in order to convey
the water to a fish hatchery (shown on map). Spring water diverted
to the fish hatchery bypasses the ditch system and the Hedge Canal,
and consequently, is never available for use on the Mildenberger
property.
The testimony indicated that the first development of the
springs located on Section 9 that resulted in developed spring
water flowing through the ditch on the Galbraithsl property, did
not occur until the mid-19601s.
The Mildenbergers owned the property in Section 5 (north of
the Galbraithst property at point I) from March, 1962, until April,
1964. They reacquired it in October, 1973, and have owned it since
that time. The property was owned by Dr. Jack Mahoney from April,
1964, to October, 1973. Dr. Mahoney also owned the current Trulock
property in Section 9 (point A) during approximately the same time
period. Dr. Mahoney sold the property in Section 9 in April, 1973,
to the Mildenbergers, who then conveyed the property to Larry
McCrossin in August, 1973. Ron and Janet Trulock are the current
owners of this property.
The testimony shows that during his ownership of the property,
Dr. Mahoney used a dragline to develop and clear the channel from
the spring at point A to the edge of the Galbraithsl property at
point B. He also enlarged an existing pond and drained water off
this land through the pond into the channel. The testimony also
shows that Dr. Mahoney1s purposes in developing these springs were
to benefit the land in Section 9 and provide stockwater for his
land in Section 5; the same parcel currently owned by the
Mildenbergers.
Larry McCrossin testified that he had further developed the
springs in Section 9 and had filed water rights on the water from
these developed springs during his ownership of the property
between 1973 and 1980.
In the fall of 1988, the Galbraiths retained the services of
a local attorney to examine the State water right records and
determine whether there were any claimed water rights in the
portion of the ditch between points C and F. There were no water
rights on record and, once advised by counsel of this fact, the
Galbraiths proceeded to fill in the ditch between points C and F,
and divert the flow of water to point D. Galbraith testified that
as part of his plan to improve the property, he wished to clean up
and fill in the ditch between points C and F. On December 8, 1988,
due to the Galbraiths' efforts in improving their property, the
northward flow of water from point C had completely stopped. The
Mildenbergers demanded that the Galbraiths reopen the ditch and
when they refused to do so, this litigation ensued.
A non-jury trial was held on March 26, 1990, and judgment was
entered in favor of the Mildenbergers, finding they have a
prescriptive easement in the disputed irrigation ditch on the
Galbraiths' property, and a stockwater right in the amount of 200
miner's inches with a priority date of September 1, 1927, to
groundwater arising on land currently owned by Ron and Janet
Trulock. The District Court held that the Mildenbergers were
exempt from the statutory filing requirements of the Montana Water
Use Act and awarded the Mildenbergers damages in the sum of $100,
their reasonable attorney's fees, and court costs. The Galbraiths
appeal.
The first issue is whether the District Court erred in finding
that the Mildenbergers have an existing water right in the amount
of 200 miner's inches with a 1927 priority date.
Without getting into the merits of this issue, it will suffice
to say that the District Court ''may grant injunctive or other
relief which is necessary and appropriate to preserve property
rights or the status quo pending the issuance of the final decree. It
Section 85-2-406 (2), MCA. The District Court lacks the
jurisdiction to issue a final decree with regard to the water
right.
The jurisdiction to interpret and determine existing water
rights rests exclusively with the water courts. Section 3-7-501,
MCA .
The question then becomes whether the District Court's
judgment was "necessary and appropriate1' as required in 3 85-2-
406(2), MCA. A review of the record indicates an absence of any
evidence to support the District Court's determination that the
Mildenbergers had a water right in the amount of 200 miner's
inches. Such a final adjudication of a water right is the function
of the water court, and not the District Court.
The judgment with respect to the Mildenbergerst water right
in the amount of 200 miner's inches is therefore vacated.
The second issue on appeal is whether the District Court erred
in finding that the Mildenbergers have a right by prescriptive
easement in the ditch on the Galbraithst property.
This Court has previously held that ditch rights and water
rights are separate and distinct property rights. Connolly v.
Harrel (1936), 102 Mont. 295, 57 P.2d 781. Therefore, our
determination of whether or not a ditch right exists is entirely
bifurcated from the water right issue.
In order to establish a prescriptive easement a party must
show open and notorious, exclusive, adverse, continuous and
uninterrupted use of the easement for the statutory period of five
years. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025.
The Galbraiths argue that the Mildenbergers have failed to present
any evidence of an adverse, open and notorious use of the ditch in
question.
It is the Galbraithst contention that the Mildenbergers merely
made use of the unconsumed water that entered upon their property
via the Hedge Canal after flowing through the Galbraithst ditch.
They argue that such use does not amount to open and notorious use,
nor has there been any other actions by the Mildenbergers that can
be construed as adverse or hostile. We disagree.
To be adverse, the use of a claimed right must be hostile and
not permissive. Ewan v. Stenberg (1975), 168 Mont. 63, 541 P.2d
60. Testimony at trial clearly established the fact that neither
the Mildenbergers nor their predecessors ever asked permission of
anyone to use the ditch. In the mid-19601s, the Mildenbergersl
predecessor in interest, Dr. Mahoney, increased the flow of water
through the ditch for the express purpose of increasing the use of
water on the property currently owned by the Mildenbergers. At no
time did he seek permission to run his water through the ditch.
Adverse use may be presumed whenever there has been
unexplained use of the alleged easement forthe five-year statutory
period. This presumption may be overcome by evidence that the use
was permissive. Keebler v. Harding (Mont. 1991), 807 P. 2d 1354,
1357, 48 St.Rep. 282, 283. The Galbraiths have failed to produce
any evidence to show a permissive use of the ditch. In fact, Berna
Martinson, the Galbraithsl predecessor in interest, testified at
trial that the Mildenbergersl use was never permissive.
The Galbraiths argue that the Mildenbergers also failed to
establish an open and notorious use. It has long been established
that an open and notorious possession is such that it will give the
owner of the property right "either actual knowledge of the hostile
claim, or [be] of such a character as to raise a presumption of
notice, or [be] so patent that the owner could not be deceived."
Collins v. Thode (1918), 54 Mont. 405, 411-412, 170 P. 940, 941.
The undisputed testimony of Berna Martinson establishes
sufficient evidence that the servient estate owner had knowledge
of the Mildenbergers' claim in the ditch:
[~listorically [the ditch] had always run that way and
everybody respected the fact that Is where the water goes,
... . we always knew that that's where the water went,
and we respected that rights.
The Galbraiths argue that the Mildenbergers never physically
entered on the property, and therefore have not made any asserted
right hostile to the interests of the Galbraiths. However,
physical presence is merely evidence used to show knowledge on the
part of the servient estate owner. There is other sufficient
evidence in the record to support a finding of knowledge on the
part of the Galbraiths or their predecessors.
The District Court Is findings will not be set aside when based
upon substantial credible evidence. Downing v. Grover (1989), 237
Mont. 172, 772 P.2d 850. The record indicates substantial evidence
exists to support the finding of a prescriptive easement.
We vacate the ~istrictCourt's finding of a water right in the
amount of 200 miner's inches, and affirm its finding of an easement
by prescription.
Justice Karla M. Gray, specially concurring.
I concur in that portion of the majority opinion addressing
the water right. I concur in the result reached by the majority
with regard to the prescriptive easement in the ditch.
My analysis of certain testimony differs somewhat from that
of the majority. The majority characterizes the testimony of Berna
Martinson, a predecessor of the ~albraiths,as showing that "the
Mildenbergersl use was never permi~sive.~~ read Ms. Martinson's
I
testimony differently. It does not appear to me that either her
testimony or any other testimony or evidence establishes whether
the use was permissive or nonpermissive at its inception. Indeed,
Ms. Martinson's recollections regarding the ditch begin more than
twenty-five years after the initial use of the ditch by the
Mildenbergersl predecessors.
Ms. Martinson1s testimony does suffice to meet the I1adversel1
showing required, however. She testified that the llrightsll the
of
Mildenbergers1 predecessors to use the ditch were recognized at
least as early as the mid-1950s, the time of her earliest firm
recollection of the ditch. As this Court has stated:
To be adverse, the use [of the alleged easement]
must be exercised under a claim of right and not as a
mere privilege or license revocable at the pleasure of
the owner . . . ; such claim [of right] must be known to,
and acquiesced in by, the owner. . . .
Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122.
Thus, while we do not have a single distinct and positive assertion
of a claim of right to use the ditch, Ms. Martinson's testimony
indicates that a claim of right was known to exist, and acquiesced
in, at least as early as 1955. This testimony provides sufficient
evidence to support the District Court's finding that the use of
the ditch was I1adverse.