No. 90-089
IN THE SUPREME COURT OF THE STATE OF MONTANA
W. BOYD BOYLAN,
Plaintiff and Appellant,
ARNOLD VAN DYKE, ANN JEANETTE
VAN DYKE, LAWRENCE J. VAN DYKE,
BERNA SUE VAN DYKE, and VAN DYKE
IRRIGATION SERVICE, INC.,
Defendants, Respondents,
and Cross-Appellants.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
H.A. Bolinger, Bozeman, Montana
For Respondent:
William L. Madden, Jr.; Bridgitte M. Anderson;
Goetz, Madden & Dunn; Bozeman, Montana
. : Submitted on Briefs: December 13, 1990
-.1
3 1 1 199U
~ilec&g srnitL7 ' 6- Decided: February 14, 1991
G ~ E ~ FOK SUPREME COU!EXi
I F
SfATE OF M ~ N r W ~ f
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This cause of action arose when defendants constructed a pond.
Plaintiff, W. Boyd Boylan (Mr. Boylan) filed suit alleging that
the pond interfered with his use of a ditch which traverses that
area. The District Court for the Eighteenth Judicial District,
Gallatin County, found that the pond had no effect on the flow of
water in the ditch and that Mr. Boylan did not suffer any damages
as a result. From that decision, Mr. Boylan appeals. We affirm
in part and reverse in part.
The issues before us are:
1.Did the District Court err in concluding that
defendants did not unlawfully interfere with Mr. Boylanls
ditch easement?
2. Did the District Court err in denying Mr. Boylanls
motion to refer determination of his water rights to the
Water Court?
3. Did the District Court err in excluding evidence of
the nature, priority and extent of Arnold Van Dyke's
water right in Dry Creek; of his purported, unlawful
diversions therefrom; and of the damages which Mr. Boylan
thereby allegedly sustained?
4. Did the District Court err in entering summary and
final judgments in favor of Arnold and Ann Van Dyke?
5. Did the District Court err in refusing to award Mr.
Boylan actual damages, punitive damages and injunctive
relief?
6. Did the District Court err in refusing to award
attorney fees and costs to the prevailing party?
Mr. Boylan is a retired rancher and the owner of approximately
acres located north of the defendants property.
Defendants, Arnold and Ann Van Dyke are husband and wife and
the parents of Larry Van Dyke. Defendants, Larry and Berna Sue
Van Dyke, husband and wife own what will be referred to hereinafter
as "Tract A". Larry and Berna Sue are the sole shareholders and
directors of the Van Dyke Irrigation Service, Inc. Larry manages
the corporation which engages in irrigation related construction
and installation of irrigation related equipment, such as pipes,
headgates, flumes, and the like.
In the spring of 1988, defendants Larry and Berna Sue Van Dyke
constructed a one-acre pond on their land where Spring Creek
intersects an irrigation ditch known as Tudor Lane Ditch. The
construction of the controversial pond occurred on Tract A on or
about May 17, 1988, until approximately May 22, 1988, prior to the
irrigation season for 1988. Pond construction involved placement
of a dam across the Tudor Lane Ditch and excavation of
approximately 600 feet of ditch to form the pond.
Mr. Boylan filed suit against defendants claiming that
construction of the pond interfered with his ditch right to
transport irrigation water down the Tudor Lane Ditch across Larry
and Berna Suets land for which he seeks damages, actual and
punitive. Mr. Boylan also sought a permanent injunction enjoining
the defendants from interfering with his ditch and water rights and
for a mandatory injunction requiring the defendants to replace his
drainage ditch.
On April 4, 1989, Ann and Arnold Van Dyke filed a motion for
summary judgment to remove them as parties on the ground that there
were no material facts supporting liability by them to Mr. Boylan.
Mr. Boylan responded by claiming that all defendants conspired to
build a major subdivision with a fish pond and access road and to
destroy the Tudor Lane Ditch. He further claimed that Ann and
Arnold Van Dyke aided in, abetted, assisted in or knew of the
destruction of the Tudor Lane Ditch and were liable to him on that
basis.
On October 1, 1988, Mr. Boylan requested that the District
Court request that the water court adjudicate his rights, the
defendants' rights, and the rights of other persons not parties to
the lawsuit, to Dry Creek water. Defendants responded that this
was a ditch rights case based on the construction of Larry and
Berna Sue Van Dykes' pond and that it did not necessitate a final
adjudication of the water rights of the parties and those who are
not parties. Defendants did not dispute Mr. Boylanls water right
to Dry Creek water as decreed to him in the temporary preliminary
decree for the Gallatin Basin.
The District Court concluded that the issue in this case was
"whether the pond interfered with Mr. Boylanls use of the Tudor
Lane Ditch, and if so, what the damages were." The District Court
denied Mr. Boylantsmotion and limited the adjudication of the case
to the question of ditch right and the construction of the pond and
any damages that might have resulted.
A three-day trial, without a jury, was held in May 1989. The
court ordered that further proceedings be held in abeyance until
such time as the 1989 irrigation season would be completed,
suggesting that both parties try and settle the matter before such
time .
Soon thereafter, Mr. Boylan filed a motion requesting
permission to file findings of fact and conclusions of law. He
also filed a motion for an injunction pendente lite, asking the
court to enjoin defendants from doing any work in the pond and the
ditch and from making any vvimprovementsvt the land until the case
on
was decided. The court did not act on this motion.
After personally examining the pond and ditch in question, and
making extensive findings of fact, the District Court concluded
that Mr. Boylan failed to prove his claims against Ann and Arnold
Van Dyke based on the alleged conspiracy, and his aiding and
abetting theories. It held that neither Ann nor Arnold Van Dyke
had any title or other interest in the land upon which the pond was
constructed. In discussing its examination of the premises, the
court stated:
In August of 1989, the Court viewed the premises and saw
a full flow from the diversion point in Dry Creek into
the pond of defendant and out of the pond of the
defendant through the rather sophisticated but very
satisfactory headgate that was fully opened when the
Court viewed it during the irrigation season. . . The .
Court walked over to where the flumes were installed, and
the waters of the Spring Creek were fully flowing into
the pond and would naturally flow out of the pond into
the Tudor Lane Ditch together with the waters of Dry
Creek. Therefore, the Complaint of the plaintiff that
they were deprived of the waters of Spring Creek is
dispelled ...
. .
. If in the future the dam would break, and the
plaintiff would suffer damages as a result thereof,
clearly the plaintiff at that time would have a cause of
action, but there is certainly no damages proved now at
this point about the construction of the dam.
In addition the District Court made the following pertinent
findings of fact:
76. In sum, there simply was no evidence whatsoever
supporting [Mr. Boylanfs] conspiracy and aiding and
abetting claims against Arnold and Ann Van Dyke.
77. There was no evidence whatsoever supporting
[Mr. Boylanls] claim that defendants or any of them acted
with any malice towards him.
78. [Mr. Boylan] failed to establish that he has
suffered any damages or may suffer any future damages.
80. The flow of water through the Tudor Lane Ditch
has not been interfered with. The water flows from Dry
Creek into the ditch, through the pond and further down
the ditch onto [Mr. Boylanls] land.
81. The operation of [Mr. Boylanls] diversion
system is essentially the same as it was before; except,
that the headgates in the ditch installed by Lawrence Van
Dyke improved [Mr. Boylanls] facilities.
82. Maintenance of the ditch has not been increased
and has actually been facilitated through the road which
[Mr. Boylan] can now use for access to the ditch.
83. In sum, the preponderance of the evidence
demonstrated that [Mr. Boylan] has not been damaged at
all by the defendants.
The ~istrictCourt then concluded that Mr. Boylan failed to prove
by a preponderance of the evidence that he is entitled to any
compensatory damages or any injunctive relief. It then denied Mr.
Boylanfs application for injunctive relief and ordered that each
party pay their own costs and attorney fees. From that decision,
Mr. Boylan appeals.
Did the District Court err in concluding that
defendants did not unlawfully interfere with Mr. Boylanls
ditch easement?
Mr. Boylan maintains that the construction of the pond was an
unlawful interference with his ditch easement. He maintains the
pond deprived him of irrigation water for his land and reduced the
value of his land to half of what it was worth prior to
construction of the pond and the destruction of his ditch. He
argued that his son, Doug Boylan, who was a tenant on his ranch was
no longer able to make a living on the ranch because of a
significant reduction in available water since the pond's
construction.
Defendants maintain that the ditch caused no interference with
Mr. Boylan's ditch right or easement. They further maintain that
the ditch has the same carrying capacity after construction of the
pond as it did before. Defendants urge that after the construction
of the pond Mr. Boylan receives the same amount of water, if not
more, than he did before. Defendants contend Mr. Boylan has
essentially the same maintenance chores required of him before the
pond's construction. They urge that maintenance is actually easier
now due to installation of improved headgates. Finally, defendants
urge that Mr. Boylan sustained no damages during the course of
construction, nor is he likely to sustain any in the future.
The standard of review for a judge sitting without a jury,
pursuant to Rule 52(a), M.R.Civ.P., is that the court's findings
shall not be set aside unless clearly erroneous. Thus, when the
District Court's findings are based on substantial credible
evidence, they are not clearly erroneous. Downing v. Grover
(1989), 237 Mont. 172, 772 P.2d 850.
The District Court correctly noted that Mr. Boylan's son,
Doug, is not a party to this lawsuit. The District Court further
noted that the Van Dyke pond had nothing to do with Mr. Boylan's
shortage of water in his ditch during the month of July, but rather
that the shortage was caused by an upstream user, exercising his
full right to Dry Creek water for the first time that Doug Boylan
testified he could remember. After reviewing the record in this
case, it is clear that there is no evidence to support Mr. Boylan's
claims. We conclude that the District Court's findings of fact are
not clearly erroneous. We hold that the District Court was correct
in concluding that defendants did not unlawfully interfere with Mr.
Boylan's ditch easement.
Did the District Court err in denying Mr. Boylan's
motion to refer determination of his water rights to the
Water Court?
As pointed out in the above stated facts, Mr. Boylan requested
that the District Court request that the water court adjudicate his
rights, defendantst rights and the rights of people not parties to
the lawsuit. As defendants correctly point out, Mr. Boylan did not
raise the water rights question in his complaint; the District
Court specifically excepted such issues from trial; the issue was
not raised in the Pretrial Order; and it was expressly waived by
Mr. Boylan at the start of the trial. A reviewing court will not
hold a trial court in error for a procedure in which the appellant
acquiesced at trial. In re Marriage of West (1988), 233 Mont. 47,
758 P.2d 282. We conclude that the District Court correctly
narrowed the focus of its review to whether the pond interfered
with Mr. Boylan's use of the Tudor Land Ditch and any damages so
caused. We hold that the District Court did not err in denying Mr.
Boylan's motion to refer determination of his water rights to the
Water Court.
Did the District Court err in excluding evidence of
the nature, priority and extent of Arnold Van Dyke's
water right in Dry Creek; of his purported, unlawful
diversions therefrom; and of the damages which Mr. Boylan
thereby allegedly sustained?
Defendants maintain that the proffered evidence was irrelevant
to any issue raised by the complaint and thus properly disregarded.
We agree. Rule 401, M.R.Evid. provides:
Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
Arnold Van Dyke's water rights are of no consequence to the
determination of whether the pond interfered with Mr. Boylants use
of the Tudor Lane Ditch. We conclude the District Court correctly
excluded evidence of Arnold Van Dyke's water right in Dry Creek;
of his purported, unlawful diversions therefrom; and of the damages
which Mr. Boylan thereby allegedly sustained.
Did the District Court err in entering summary and
final judgments in favor of Arnold and Ann Van Dyke?
Mr. Boylan contends the District Court erroneously granted
summary judgment. The District Court ruled on Mr. Boylan's motion
for summary judgment on the first day of trial. It granted the
motion with regard to the claim for actual interference with Mr.
Boylants ditch right, but allowed the conspiracy claims to be
tried. After trial, the court entered judgment in favor of Arnold
and Ann Van Dyke on the conspiracy claim.
Summary judgment is only proper when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any
inferences to be drawn from the factual record must be resolved in
favor of the party opposing summary judgment. Summary judgment is
never a substitute for a trial on the merits. Batten v. Watts
Cycle and Marine, Inc. (1989), 240 Mont. 113, 783 P.2d 378.
Here, the District Court only granted partial summary
judgment. It ruled that Arnold and Ann Van Dyke did not interfere
with Mr. Boylanus ditch rights. As stated previously, under Issue
I, Mr. Boylan failed to present any evidence to support his claims
of unlawful interference.
With regard to the conspiracy claim against Arnold and Ann Van
Dyke, the District Court allowed a trial on the merits of that
claim. To prove a claim of civil conspiracy one must prove the
following elements: (1) two or more persons; (2) an object to
accomplish; (3) a meeting of minds on the object or course of
action; (4) one or more unlawful overt acts; and (5) damages as the
proximate result thereof. If the object of an alleged conspiracy
is lawful, and the means used to attain that object are lawful,
there can be no civil action for conspiracy. Duffy v. Butte
Teacherst Union, No. 332 (1975), 168 Mont. 246, 541 P.2d 1199.
The District Court stated: IuClearlythere is no showing that
[Arnold and Ann Van Dyke] participated in any manner whatsoever".
The record supports the District Courts conclusion. Thus, Mr.
Boylan' s claim of conspiracy fails. We hold the District Court was
correct in entering summary and final judgments in favor of Arnold
and Ann Van Dyke.
Did the District Court err in refusing to award Mr.
Boylan actual damages, punitive damages and injunctive
relief?
In light of our holdings on the foregoing issues, we conclude
that Mr. Boylan was not entitled to actual damages, punitive
damages or injunctive relief. We hold that the District Court
correctly refused to award Mr. Boylan any damages or injunctive
relief.
Did the District Court err in refusing to award
attorney fees and costs to the prevailing party?
Defendants maintain that as the prevailing party, they are
entitled to attorney fees. Section 70-17-112, MCA, provides:
(2) No person may encroach upon or otherwise impair any
easement for a canal or ditch used for irrigation or any
other lawful domestic or commercial purpose, including
carrying return water.
...
(5 If a legal action is brought to enforce the
provisions of this section, the prevailing party is
entitled to costs and reasonable attorney's fees.
The plaintiffs if successful would claim under the provision of
subsection (2). Defendants claim attorney fees under subsection
The District Court concluded that the Tudor Lane Ditch was in
part destroyed and removed by the defendants and that therefore
neither party "prevailed1' for the purpose of receiving attorney
fees. Defendants rely on Knudsen v. Taylor (1984), 211 Mont. 459,
685 P.2d 354. However Knudsen is distinguishable. In Knudsen, the
plaintiff asked for $117,000 in damages and was awarded $10,000.
The court in that case concluded that neither party llprevailedll
and
neither party was entitled to attorney fees.
Here, Mr. Boylan failed to prevail in any of his claims.
Under 5 70-17-112(5), MCA, defendants prevailed and are therefore
entitled to costs and attorney fees as a matter of law. We hold
that the District Court erred in refusing to award attorney fees
and costs to defendants. We remand this issue to the District
Court for determination of an award of costs and attorney fees in
defendants' favor.
Affirmed in part. Reversed in part.
Justices / ,/