No. 94-439
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ELMER UNRUH,
Plaintiff, Respondent, Cross-Appellant,
WILLIAM TASH and TASH T DIAMOND
LIVESTOCK, INC.,
Defendants and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon Metropoulos, Helena, Montana
For Respondent:
W. Cecil Jones, Thomas R. Scott, Dillon, Montana
Submitted on Briefs: February 9, 1995
Decided: May 23, 1995
Filed:
Cl&k
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal and cross-appeal from a Fifth Judicial
District Court, Beaverhead County, order granting the defendant's
motion for summary judgment in a prescriptive easement action. We
reverse and remand.
The following are issues on appeal and cross-appeal:
APPEAL
1. Did the District Court err in denying attorney fees to the
defendant William Tash (Tash) pursuant to 5 70-17-112, MCA?
CROSS-APPEAL
1. Did the District Court err in granting summary judgment in
favor of Tash, finding a prescriptive easement for the use of the
ditch and a prescriptive right to overflow water onto a portion of
plaintiff Elmer Unruh's (Unruh's) land?
2. Did the District Court err when it failed to have a record
of the summary judgment hearing?
3. Did the District Court err in adopting Tash's Findings of
Fact, Conclusions of Law, and Order verbatim?
FACTUAL BACKGROUND
The plaintiff, Unruh is the owner of 12.6 acres of real
property located in the SE1/4 NE1/4 Section 33 Township 7 South
Range 9 West M.P.M., purchased in 1989. The defendant Tash owns
property immediately east of plaintiff's property, with both
properties adjoining each other with a border running north-south
for approximately 932 feet. The object of this litigation is a
lateral ditch which adjoins the Van Camp ditch, a major ditch which
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forms the western border of the plaintiff, Unruh's property. The
Van Camp ditch carries water from the Beaverhead River to several
ranches, including Tash's ranch. The only written information
affecting the lateral ditch and its current placement is a 1944
agreement between predecessors of the plaintiff and defendant and
a sale deed between the plaintiff's remote predecessor and the
State. The Van Camp ditch was realigned in 1944 pursuant to a
written agreement between Emily Tash, Edna Wheat, and Norman and
Blanche Downing (Unruh's remote predecessors). The agreement
provided for an easement to the grantees (Wheat and Tash) for the
purpose of constructing, maintaining and repairing said ditch.
Moreover, the easement provides that the parties may carry, conduct
and convey the waters flowing or to flow therein to the lands of
the grantees. As a result of realigning the Van Camp ditch, the
lateral ditch had to be "continued" to connect to the realigned Van
Camp ditch. The newly located lateral ditch consisted of portions
of the old lateral ditch and a portion of the old Van Camp ditch.
In 1954, the State of Montana bought land from the Downings
for the purpose of relocating Highway 278. The result of the
highway construction was that the headgate of the lateral ditch had
to be relocated and a new lateral ditch built. A special
consideration in the Bargain and Sale Deed stated that "[hleadgate
at Sta [Station] 2284+60, approximately, to be removed by
contractor, and to be replaced by owner (Tash Ranch Co.)." A new
headgate was installed and the new lateral ditch was built using a
portion of the original lateral ditch and a small portion of the
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old Van Camp ditch.
Testimony regarding use of the lateral ditch is in the form of
several affidavits. According to the affidavit of Herb Wheat, who
has lived in the area since 1913, the lateral ditch has been in use
as long as he can recall, with an overflow of water at the
northeastern end of the ditch. Gerald Jones' affidavit states that
since 1970, he has leased land and the Van Camp ditch from Herb
Wheat and he recalls the use of the lateral ditch in the 1970s. He
could not testify to its use in the last 10 years but had no real
reason to check the ditch during that time period. However, he had
no reason to feel the ditch had been abandoned.
Bill Ballard stated in his affidavit that the water in the
lateral ditch had been used by Tash in the past in a manner which
caused some overflow onto both Tash's and Unruh's lands. Finally,
Jim Allen also stated that the lateral ditch was in use when he
managed a horse ranch which included Unruh's land from 1979 to 1989
and the water in the lateral ditch was used by Tash in a manner
which included overflow on both Tash's and Unruh's properties.
In his amended complaint filed on May 21, 1991, the plaintiff
asserted that: 1) the ditch in contention was abandoned by Tash's
predecessors in the April 20, 1944 document; 2) that the ditch had
not been used for over ten years and consequently, the right to use
the ditch had been extinguished; and 3) any right of the defendant
to use the ditch was by consent and the plaintiff has since revoked
his consent to use of the ditch by defendant.
Tash contended that he possessed a prescriptive easement to
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use the ditch in question and use it in the manner in which he had
used it for over twenty years (i.e. overflowing the ditch) when
water was available and needed. He further has contended that his
right to use the ditch was not by license or consent. He asserted
that if the Downings, Unruh's predecessor in interest, had given a
license for such use, the license had been extinguished in 1972
when the property was conveyed and use of the ditch from 1972 to
1977 was adverse to the new owners and therefore, if a prescriptive
easement had not been acquired previously, it had been acquired
between 1972 and 1977. Also, Tash states that Unruh recognized
Tash's ownership rights in the ditch when he "ceased [his]
attempted realignment of the ditch and sought [Tash'sl permission
to place a culvert in the original ditch."
In an order dated July 10, 1991, the District Court concluded
that Tash had an easement to use the ditch in the manner in which
it had been used in the past, allowing the water to overflow the
ditch onto Unruh's property. Moreover, the District Court
concluded that Tash had not abandoned any right to use the ditch.
Further, the District Court, although stating that the above
holding disposed of the matter, also concluded that the plaintiff
had failed to meet his burden of proving that the overflow of water
was the proximate cause of his damages. Finally, the District
Court concluded that the damages sought by the plaintiff were too
speculative since his proposed business was a new business.
Following the entry of summary judgment in favor of Tash, Tash
requested an award of attorney fees. In a memorandum filed April
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1, 1992, the District Court denied Tash's motion for an award of
attorney fees, stating that there was no encroachment or impairment
of the easement by Unruh's actions nor did Unruh limit Tash's
access to his ditch easement. Finally, the District court
concluded that "adjudication of contested rights in a ditch
easement does not constitute encroachment or interference and does
not impair the ditch owner's rights." This appeal by Tash and a
subsequent cross-appeal by Unruh followed.
STANDARD OF REVIEW
Our review of a summary judgment motion is the same as that of
the District Court; it is a de nova review. Roe v. Corbin Water
Users' Ass'n. (1994), 267 Mont. 503, 885 P.2d 419. Summary
judgment is proper only when there are no genuine issues of
material fact existing and the moving party is entitled to judgment
as a matter of law. Roe, 885 P.2d at 420.
DISCUSSION
CROSS-APPEAL ISSUE ONE - SUMMARY JUDGMENT
Unruh asserts that the District Court erred in granting
summary judgment to Tash, concluding that Tash had a prescriptive
easement to the ditch in question and a prescriptive right to
overflow the ditch. Tash contends that "Unruh does not and cannot
seriously contest that the elements of open, notorious, continuous
use for five years have been established." Tash argues that
adversity is the only issue in the instant case.
To establish an easement by prescription, the party
claiming an easement "must show open, notorious,
exclusive, adverse, continuous and uninterrupted use of
the easement claimed for the full statutory period. The
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statutory period is five years." The burden is on the
party seeking to establish the prescriptive easement.
"All elements must be proved in a case such as this
because 'one who has legal title should not be forced to
give up what is rightfully his without the opportunity to
know that his title is in jeopardy and that he can fight
for it'."
"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 of the land; such claim must be known to, and
acquiesced in by, the owner of the land." "If the owner
shows permissive use, no easement can be acquired since
the theory of prescriptive easement is based on adverse
use. I'
Public Lands Access Assn, Inc. v. Boone & Crockett Club Foundation,
Inc. (1993), 259 Mont. 279, 283-84, 856 P.2d 525, 527. (Citations
omitted.) The elements of a prescriptive easement were defined in
Rappold v. Durocher (1993), 257 Mont. 329, 849 P.2d 1017, as
follows :
"Open and notorious" is defined as "a distinct and
positive assertion of a right hostile to the rights of
the owner and must be brought to the attention of the
owner." "Continuous" means "it is necessary to have use
made often enough to constitute notice of the claim to
the potential servient owner." "Uninterrupted" means
"use not interrupted by the act of the owner of the land
or by voluntary abandonment by the party claiming the
right."
"An Exclusive use means that the claimants' right to
use the right of way is independent of a like right of
way in another."
Raopold, 849 P.2d at 1019. (Citations omitted.)
We now apply the factual information provided to determine
whether there are any genuine issues of material fact as to Tash's
claim to a prescriptive right to the ditch in question. Tash's
testimony to the effect that he had an easement by prescription was
as follows:
First, Tash provided an affidavit from William Ballard who
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leased the property now owned by Unruh from 1978 to 1984. Ballard
stated that at the time of his lease, the ditch appeared to be in
place and of long standing use. He specifically recalls the use of
the ditch by Tash and overflow of water onto the property several
times during his lease of the property.
Second, Jim Allen testified through an affidavit that he was
the ranch manager for a horse ranch which included the property now
owned by Unruh. During that time, Allen recalls the use of the
ditch by Tash several times, including overflow onto the
surrounding property.
Third, Herb Wheat is the owner of land just to the north of
Tash's ranch and has lived in the area since 1913. He is part
owner of the Van Camp ditch. Wheat testified through his affidavit
that Tash had used the ditch in a manner which included the
overflow of water at the northeastern end of the ditch for as long
as he could remember.
Fourth, Tash also provided the affidavit of Gerald Jones who
has leased property and shares in the Van Camp ditch from Wheat
since 1970. Jones recalled seeing the lateral ditch in use by Tash
several times during the 1970s. He also stated that although he
has no specific recollection of seeing the ditch in use in the last
10 years, he has no reason to infer it has been abandoned or
unused. He has had no occasion to check its use.
Fifth, Tash, himself stated in an affidavit that the lateral
ditch was used to flood irrigate 15 acres of his property east of
the ditch. He further asserted that the ditch use has included
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overflow at the northeast end of the ditch. Finally, Tash stated
that the ditch has been used when necessary and when water was
available since it was built including numerous occasions in the
last 14 years.
Sixth, he stated in his deposition that the lateral ditch
could serve no others. In the 1991 deposition, he further stated
that he had performed routine maintenance and had deepened the
ditch in the last 10 years. Moreover, Tash described Unruh's
attempt to realign the ditch with a backhoe. He stated in his
deposition that after Tash objected to the realignment, Unruh
filled in the area upon which he had worked.
Seventh, Tash offered the Bargain and Sale Deed conveying land
from the Downings to the State for the purpose of building the
highway over that area of land. The document states, under
"Special Considerations" that "Headgate at Sta 2284+60,
approximately, to be removed by contractor, and to be replaced by
owner (Tash Ranch Co.) .I'
Tash also offered the 1944 agreement between Edna Wheat, Emily
Tash and the Downings which stated:
NOW THIS INDENTURE WITNESSETH, that for and in
consideration of the benefits to accrue to the parties
hereto by the changing of the location of the Van Camp
Ditch and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the grantors
hereby give and grant to the grantees a perpetual right
of way and easement for the construction and maintenance
of a ditch over, across and upon the said Southeast
Quarter of the Northeast Quarter of Section 33, Township
7 South, Range 9 West, M.P.M. Beaverhead County, Montana,
said ditch to be constructed upon a line agreed upon by
the parties hereto and which said line is approximately
300 feet west of the present Van Camp Ditch, said ditch
so to be constructed shall be 8 feet in width and 2 feet
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or more in depth and of sufficient capacity to convey
therein all of the waters of Beaverhead River decreed to
the Grantees and all waters from any other source owned
by the grantees or acquired by them from any source, and
the grantees their agents and servants shall have, and
they are hereby expressly given the right to enter upon
the lands of the grantors when and wherever necessary for
the purpose of constructing said ditch and forever
maintaining and repairing said ditch and carrying,
conducting and conveying the waters flowing or to flow
therein to the lands of the grantees.
Unruh, on the other hand, provided the testimony through
deposition, of Ronald Johnson, a previous owner of the property and
a partner in farming the property with his brother Frederick,
Unruh's immediate predecessor. Johnson stated that he bought the
property in 1978 with Bob Mountain and sold the property to
Sullivan in 1984. Johnson managed the property for Sullivan from
1984 until 1986. Johnson remembered no water running through the
lateral ditch at that point in time. From 1986 until Frederick
Johnson purchased the land (Unruh's land) in 1989, he does not
remember paying attention to the ditch and does not remember water
running through it on his daily travels past the ditch. He further
stated that he watched it much closer prior to 1986 and that "to
the best of my recollection, there has never been water that has
run through there."
Elmer Unruh was deposed on February 22, 1991. He stated that
he felt that Tash had abandoned the ditch and that Tash had no
right to use the ditch in any manner. Although Unruh stated that
he inspected the property before purchasing it and the ditch
appeared to be abandoned, he does not recall checking the headgate.
He admitted that Tash claims he has used the ditch in the past on
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only provided conclusory statements that the ditch was used and
that such use included overflow of the water onto the surrounding
property. Conclusory statements are not sufficient to create a
genuine issue of material fact. Thornton v. Songstad (1994), 263
Mont. 390, 398, 868 P.2d 633, 638.
Moreover, there is no testimony that the use of the ditch was
either permissive or adverse, merely that Tash used the ditch. It 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 of the land; such claim must be known
to and acquiesced in by, the owner of the land." Warnack v. Coneen
Family Trust (1994), 266 Mont. 203, 208, 879 P.2d 715, 719.
(Emphasis added.) Moreover, I( [wlhile a presumption of adverse use
or adversity arises once the claimant establishes ooen, notorious,
exclusive, continuous, and uninterrupted (unmolested) use for the
full statutory period, it remains the burden of the easement
claimant to prove each of those remaining elements of prescription,
and unless and until the claimant proves those elements under the
general rule, the burden does not shift to the land owner to prove
permissive use or license." Warnack, 879 P.2d at 723. (Citations
omittted.) Finally, "[aIdverse use or adversity cannot, however,
be presumed from the claimant's inability to prove those remaining
elements of prescription; if those elements are not proven, then
the presumption of adverse use or adversity never springs into
existence." Warnack, 879 P.2d at 724.
In the instant case, Tash did not provide adequate testimony
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from which it could be determined that the elements of open,
notorious, and continuous use could be satisfied. We conclude,
therefore, that genuine issues of material fact remain as to
whether Tash's use of the ditch was open, notorious, continuous and
adverse. We hold that the District Court erred in granting summary
judgment to Tash on the issue of whether he had established a
prescriptive easement.
APPEAL ISSUE ONE - ATTORNEY FEES
Tash argues that Unruh interfered with, encroached upon and
impaired Tash's easement by physically rerouting the ditch,
breaking the ditch bank, denying access to the ditch, conditioning
access to the ditch and initiating litigation in which Tash was
forced to defend his easement right. Tash further asserts that he
had to forego at least one irrigation opportunity because of the
litigation. He argues that under Kephart v. Portmann (1993), 259
Mont. 232, 855 P.2d 120, sufficient impairment has occurred to
warrant an award of attorney fees. Unruh counters that
encroachment or impairment requires more action than merely
instituting a legal action against the alleged easement owner.
Further, he contends that he has made every effort "not to encroach
or impair the use of the lateral ditch by Tash;" neither has he
refused access by Tash to the lateral ditch.
However, because we are reversing the District Court on its
decision granting summary judgment to Tash on the issue of whether
he had established a prescriptive easement, we need not address the
issue of attorney fees. This issue must be resolved by the
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District Court based upon its ultimate determination at trial. We
remand the issue of attorney fees to the District Court for a final
determination.
It would also be premature to discuss the issue of Unruh's
damages because the case is being reversed and remanded back to the
District Court. The lower court must address issues of damages
when the action returns to the District Court for a final
determination.
CROSS-APPEAL ISSUE TWO - LACK OF RECORD ON APPEAL
Because we reverse and remand this case on the central issue
of whether there exists a prescriptive ditch easement, the issue of
lack of record is necessarily moot.
CROSS-APPEAL ISSUE THREE - ADOPTION OF ORDER VERBATIM
Unruh also contested the District Court's adoption of Tash's
proposed order on cross-appeal. This issue, too, became moot
because of our decision to reverse the District Court on the case's
central issue.
REVERSED AND REMANDED for further proceedings consistent with
this opinion.
We Concur:
May 23, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Jon Metropoulos
Attorney ai Law
Power Block Bldg., Ste. 0
6th & Last Chance Gulch
Helena, MT 59601
W. Cecil Jones and Thomas R. Scott
Attornevs at Law
P.O. Bo;r 166
Dillon, MT 59725
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA