NO. 95-553
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dirk A. Williams, Church, Harris, Johnson &
Williams, Missoula, Montana
For Respondent:
Walter E. Congdon, Congdon Law Office, Missoula,
Montana
Submitted on Briefs: August 1, 1996
Decided: December 13, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Twenty-First Judicial District
Court, Ravalli County. Following a bench trial, the District Court
awarded Plaintiffs, Lee and Donna Wareing, a prescriptive ditch
easement across Schreckendgust's property, costs and attorney fees.
Additionally, the District Court ordered the parties to equally
share the costs of replacing the ditch culvert crossing Defendant
Schreckendgust's property. Defendant Schreckendgust appeals. We
affirm.
We restate the issues on appeal as follows:
1. Must the elements of a prescriptive easement be proved by
a preponderance of evidence or by clear and convincing evidence?
2. Did the District Court err 'in concluding that Wareings
established all elements of their prescriptive ditch easement
claim?
3. Under the doctrine of estoppel, are Wareings precluded
from asserting a prescriptive easement right against Schreckendgust
after they acquired an express ditch easement from a neighboring
landowner over property previously owned by Schreckendgust?
4. Did the District Court err when it failed to expressly
limit the scope of Wareings' prescriptive ditch easement both as to
location and method of maintenance?
5. Is Schreckendgust entitled to attorney fees under § 70-
17-112, MCA?
6. Should this case have been remanded for a new trial?
2
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, Lee and Donna Wareing, (Wareings) own real
property situated in a portion of the SE1/4 of Section 11, Township
10 North, Range 20 West, P.M.M., Ravalli County, Montana, lying
east of the right of way of Montana Rail Link. They acquired their
property in 1960. Defendant Clyde Schreckendgust (Schreckendgust)
owns real property situated in the W1/2 of Section 11, Township 10
North, Range 20 West, P.M.M., Ravalli County, Montana.
Schreckendgust acquired his property' from his father in 1962.
Wareings' property lies east of Schreckendgust's property. See
Appendix A for a map of the relevant portions of the parties'
properties. This map is an overlay on the relevant township map
derived from the Water Resources Survey, Ravalli County, Montana,
State Engineer's Office (Helena, Montana, June 1958) (Map 31).
Wareings' property is irrigated by water flowing from One
Horse Creek through the "Samuel Miller Ditch" (ditch) that crosses
various properties, including property owned by Schreckendgust.
Specifically, the ditch crosses two lots owned by Schreckendgust,
described as Florence Orchard Homes Lots 19 and 20. Between these
lots and Wareings' property is Florence Orchard Homes Lot 38,
previously owned by Schreckendgust, but acquired by Steve
Schertenleib in 1988. Also between the parties' properties lies a
Ravalli County road, U.S. Highway 93 and the Montana Rail Link
railroad right-of-way.
As it crosses Schreckendgust's Lots 19 and 20, the irrigation
ditch flows through a concrete culvert under an old airstrip. As
the ditch crosses Florence Orchard Homes Lot 38, it enters an
underground pipeline installed by Schertenleib. After exiting Lot
38, the irrigation ditch, through a series of culverts, crosses
under a Ravalli County road, U.S. Highway 93 and the Montana Rail
Link railroad right-of-way to reach Wareings' property.
Samuel Miller is Wareings' original predecessor in interest
for most of their affected property. Samuel Miller conveyed his
property to Ambrose Miller in 1897, and Ambrose Miller in turn
conveyed the property to William E. Gleason and Lorenzo A. Gillett
in 1898. After Gillett conveyed his interest in the property to
Gleason in 1913, Gleason sold various parcels of the property to
others. In the 1940s and 195Os, Ed Martin owned the bulk of the
property. In 1960, Wareings acquired their property from Ed
Martin.
After 1904, but long prior to 1957, the present "Samuel Miller
Ditch'! was installed and/or extended to what is now Wareings'
property. Gleason used the ditch to convey irrigation water from
the 1930s on, and, subsequently, Ed Martin used the ditch
continuously to irrigate his property during the 1940s and 1950s.
Finally, Wareings have used the ditch for irrigation purposes since
1960. During this period of use, Wareings maintained the ditch by
shovel and hand cleaning. Neither Wareings, nor their
predecessors-in-interest, expressly sought Schreckendgust's
permission to use the ditch. Instead, they notified Schreckendgust
when they intended to run water through the ditch. Such
notification was a neighborly custom in the area.
4
In 1947, Schreckendgust built an airstrip on his property.
Where the airstrip crossed the ditch, Schreckendgust installed, at
his own expense, a reinforced concrete culvert in the ditch. Lee
Wareing testified that in April 1990 he called Schreckendgust in
Florida to complain that the 80-foot long culvert, located below
Schreckendgust's airstrip, was obstructed by boulders and other
debris. Schreckendgust declined to personally have the culvert
cleaned and told Wareing to do whatever he needed and so Wareing
had his ranch foreman do the work. To clean the culvert, Wareings'
worker found it necessary to knock holes in the top of the culvert
to clear the obstructions. After this initial cleaning, vandals
broke out more sections, thereby obstructing the culvert again,
which led Wareings' worker to break out more top pieces to
successfully clear the culvert. After returning to his property,
Schreckendgust found it necessary to replace the broken culvert.
Wareings initiated this law suit against Schreckendgust
through an application for temporary restraining order and
preliminary injunction dated August 13, 1991. Wareings alleged
that Schreckendgust's replacement of the airstrip culvert would
take some days to complete and would interrupt water flow through
the ditch and Wareings would be without water for irrigation and
livestock. Schreckendgust prevailed on his motion to quash the
temporary restraining order and successfully defended against
Wareings' application for a preliminary injunction on October 18,
1991. Schreckendgust then filed an answer and counter-claim on
July 17, 1992. In his answer, Schreckendgust raised several
5
affirmative defenses and denied all allegations set out in
Wareings' application for temporary restraining order and
preliminary injunction. In his counter-claim, Schreckendgust
sought damages for destruction of the concrete culvert on his
property, damages for trespass, a decree quieting title to Lots I8-
24, 33-36, 39 and 40, Florence Orchard Homes, Ravalli County, and
an order enjoining Wareings from entering Schreckendgust's real
property.
On December 19, 1994, this case was heard by bench trial in
the Twenty-First Judicial District Court, Ravalli County, Montana.
Immediately prior to testimony being given during trial, the
parties stipulated that Wareings could file their complaint wherein
Wareings alleged that they, either by prescription, specific grant
or reservation, held an easement for the ditch crossing
Schreckendgust's property. Furthermore, the District Court
considered Schreckendgust as having denied all allegations in the
complaint. On May 15, 1995, the District Court entered its
Findings of Fact, Conclusions of Law and Order. The District Court
concluded that Wareings had established a prescriptive easement for
an irrigation ditch across Schreckendgust's property and awarded
them costs and attorney fees. Additionally, the District Court
held that each party was responsible for fifty percent of the cost
of replacing the culvert located on Schreckendgust's property.
Finally, after considering Schreckendgust's objection to certain
costs and attorney fees, the District Court entered its final
Opinion, Order and Judgment on October 30, 1995. Therein, the
6
District Court offset certain costs and attorney fees and directed
Schreckendgust to pay Wareings a reduced net amount of costs and
attorney fees. From these judgments, Schreckendgust appealed.
For reasons set forth in our discussion of Issue 1, on May 14,
1996, we remanded this case to the District Court with instructions
to reconsider its decision applying the clear and convincing burden
of proof. On June 10, 1996, the District Court filed its Amended
Findings of Fact and Conclusions of Law. On June 18, 1996, we
granted counsel for the respective parties the opportunity to file
supplemental briefs with regard to the District Court's Amended
Findings of Fact and Conclusions of Law. Counsel for the parties
did so. We now consider both the initial issues on appeal as well
as the issues raised in the supplemental briefs.
STANDARD OF REVIEW
Our standard of review for a district court's findings of fact
is provided by Rule 52(a), M.R.Civ.P., which in part provides:
Findings of fact . . . shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the
credibility of the witnesses.
We have adopted the following three-part test to interpret
this rule:
First, the Court will review the record to see if
the findings are supported by substantial evidence.
Second, if the findings are supported by substantial
evidence we will determine if the trial court has
misapprehended the effect of evidence. Third, if
substantial evidence exists and the effect of the
evidence has not been misapprehended, the Court may still
find that "[Al finding is 'clearly erroneous' when,
although there is evidence to support it, a review of the
record leaves the court with the definite and firm
conviction that a mistake has been committed."
7
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found.
(1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate
Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 p.2d
1285, 1287).
Our standard of review for a district court's conclusions of
law is whether the tribunal's interpretation of the law is correct.
Public Lands, 820 P.2d at 527.
DISCUSSION
1. Must the elements of a prescriptive easement be proved by
a preponderance of evidence or by clear and convincing evidence?
Our standard of review for a district court's conclusions of
law is whether the tribunal's interpretation of the law is correct.
Public Lands, 820 P.2d at 527. On appeal, Schreckendgust
originally contended that the District Court erred by basing its
opinion on a preponderance of the evidence rather than on clear and
convincing evidence to award Wareings a prescriptive easement over
Schreckendgust's property. After researching the issue, we agreed.
Consequently, in our May 14, 1996 Order, we remanded the case to
the District Court with instructions to reconsider its findings of
fact and conclusions of law based on the existing record and
applying the clear and convincing burden of proof.
Our research revealed two differing lines of authority as
regards the burden of proof in prescriptive easement cases. This
is the first case, however, that has raised this anomaly directly.
In fact, in most of the prescriptive easement cases that have
previously come before this Court on appeal, burden of proof is not
8
even mentioned parenthetically, and it is impossible to tell what
burden was utilized by the trial court and litigants. Accordingly,
it is necessary that we clarify the law regarding the proper burden
of proof in prescriptive easement cases.
In Kostbade v. Metier (1967), 150 Mont. 139, 143, 432 P.2d
382, 385, following a long line of Montana cases, we stated that a
party asserting a prescriptive easement must prove his claim by
clear and convincing evidence. Moreover, in Warnack v. Coneen
Family Trust (1994), 266 Mont. 203, 216, 879 P.2d 715, 723, we
stated that the party asserting a prescriptive easement must prove
each element of the claim.
In Downinq v. Grover, however, without any analysis or
reference to Kostbade, we stated that "[al11 elements of
prescriptive easement must be proved by a preponderance of the
evidence or the claim will fail." Downing v. Grover (1989), 237
Mont. 172, 175, 772 P.2d 850, 852 (citing Grimsley v. Estate of
Spencer (1983), 206 Mont. 184, 670 P.2d 85). We again adopted this
lower burden of proof in Brown v. Tintinger (1990), 245 Mont. 373,
377, 801 P.2d 607, 609 (citing Downinq, 772 P.2d at 852), without
any apparent recognition of the existence of a contrary line of
authority.
In Downinq, a landowner sued an adjoining landowner seeking to
establish a public road across the adjoining landowner's property
or alternatively a public or private prescriptive easement. When
we addressed the prescriptive easement claim, we stated:
The burden at trial on the party seeking to
establish the prescriptive easement is to show
9
1) open
2) notorious
3) exclusive
4) adverse
5) continuous, and
6) uninterrupted use
of the easement claimed for the full statutory period.
Clemens v. Martin (Mont. 1986), [221Mont. 483,] 719 P.2d
787, 43 St.Rep. 994. The statutory period is five years.
Section 70-19-401, MCA. All elements of orescriptive
easement must be proved bv a preponderance of the
evidence or the claim will fail. Grimsley v. Estate of
Spencer (1983), 206 Mont. 184, 670 P.2d 85. 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."
Grimsley, 670 P.2d at 92-93.
Downinq, 772 P.2d at 852 (emphasis added).
The above quoted language properly sets forth the elements of
a prescriptive easement, the required statutory period and the
policy underlying the strict requirements for establishing a
prescriptive easement. See Warnack, 879 P.2d at 718. However, the
stated lower burden of proof for prescriptive easement claims is
not correct.
In Downinq, we relied upon Grimslev as authority for this
burden of proof and the underlying policy of prescriptive easement
claims. In Grimslev, the plaintiffs claimed a prescriptive right
to the use of water with only a showing of uninterrupted use. We
responded that to acquire water rights by prescription, the party
alleging prescription must “satisfy every element of the claim . .
and that a failure to satisfy any element is fatal to the entire
claim. I1 Grimslev, 670 P.2d at 91-92. We further explained that:
To allow a plaintiff, or any party for that matter,
the opportunity to obtain title. to water rights by a
showing of mere uninterrupted use would do a disservice
to the sound precepts of western water law. Ideally, all
10
water rights should be obtained in as orderly a manner as
is humanely [sic] possible. Prescription does not
contribute to the maintenance of an orderly system.
Indeed, we recognize that, with respect to water rights
based on claims made after July 1, 1973, acquisition of
title by prescription is not permitted. We think this
observation is akin to the time-honored proposition that
one claiming title to property under adverse possession
must bear a heavy burden to show that his use of the
property is continuous, hostile, actual, notorious, and
exclusive to the owner of record, for 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. Water rights are
much to precious to forego without a showing of hostile
or adverse use.
Grimslev, 670 P.2d at 92-93 (citations omitted).
Nowhere in Grimsley do we state that the proper burden of
proof for prescriptive easement claims is a preponderance of the
evidence. We only state that a person claiming a water right by
prescription, like a person claiming a property right by adverse
possession, must bear "a heavy burden" to prove all of the elements
of the prescriptive claim. This is supported by the policy giving
landowners with legal title the opportunity to protect and remain
secure in their property rights.
It was improper that in Downinq we chose to rely upon
Grimsley, a prescriptive water right case which did not
specifically address the burden of proof for either prescriptive
water rights or prescriptive property easements, when we had
already previously established a long line of clear precedent
setting forth the burden of proof in prescriptive easement cases as
that of clear and convincing evidence. See, Kostbade v. Metier
(1967), 150 Mont. 139, 432 P.2d 382; Descheemaeker v. Anderson
(1957), 131 Mont. 322, 310 P.2d 587; Peasley v. Trosper (1936), 103
11
Mont. 401, 64 P.2d 109; Maynard v. Bara (1934), 96 Mont. 302, 30
P.2d 93; Violet v. Martin (1922), 62 Mont. 335, 205 P. 221
(overruled on other grounds); Barnard'Realty Co. v. City of Butte
(1918), 55 Mont. 384, 177 P. 402. Moreover, both Downinq and
Tintincrer were decided on issues that did not involve a question as
to the appropriate burden of proof. Accordingly, our reference in
those cases to that burden as being preponderance of evidence was
purely dicta, in any event. Consequently, in so far as Downinq,
Tintinqer and any other Montana case adopts a preponderance of the
evidence burden of proof in prescriptive easement claims, those
cases are hereby overruled to that extent
Moreover, as we stated in Warnack, a prescriptive easement
claimant has the burden to prove each element of the prescriptive
claim. Warnack, 879 P.2d at 723. Accordingly, the proper burden
of proof in prescriptive easement claims is that each element of a
prescriptive easement must be proven by the claimant by clear and
convincing evidence. Kostbade, 432 P.2d at 385; Warnack, 879 P.2d
at 723.
Furthermore, in order to avoid any question as to what
constitutes clear and convincing evidence in prescriptive easement
cases, we adopt the following definition of clear and convincing
evidence from our recent case law:
[Cllear and convincing proof is simply a requirement that
a preponderance of the evidence be definite, clear, and
convincing, or that a particular issue must be clearly
established by a preponderance of the evidence or by a
clear preponderance of proof. Th$s requirement does not
call for unanswerable or conclusive evidence. The
quality of proof, to be clear and convincing, is
somewhere between the rule in ordinary civil cases and
12
the requirement of criminal procedure--that is, it must
be more than a mere preponderance but not beyond a
reasonable doubt.
Matter of J.L. (Mont. 1996), 922 P.2d 459, 462, 53 St.Rep. 649,
651. This definition corresponds with the definition the
Legislature adopted for the "clear and convincing" evidence burden
required in punitive damage claims under 5 27-l-221(5), MCA.
Matter of J.L., 922 P.2d at 462.
Consequently, we hold that a prqscriptive easement claimant
must prove each element of the prescriptive easement claim by clear
and convincing evidence.
2. Did the District Court err in concluding that Wareings
established all elements of their prescriptive ditch easement
claim?
To establish a private prescriptive easement, the claimant
must show "open, notorious, exclusive, adverse, continuous and
uninterrupted use of the easement for the full statutory period."
Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 233, 915 P.2d 840,
843. Schreckendgust contends that the District Court's findings of
fact are not supported by substantial evidence and that the
District Court misapplied the law to conclude that Wareings had
established an easement by prescription. Specifically,
Schreckendgust argues that Wareings failed to prove two elements of
their prescriptive easement claim; that is, their use was neither
exclusive nor adverse.
The District Court in its Amended Finding of Fact No. 24
states that "Wareing has had the exclusive use of the 'Samuel
13
Miller Ditch' since 1960." Schreckendgust argues that the District
Court does not set forth its analysis or provide a citation to
testimony which supports this finding. Schreckendgust further
contends that the District Court does not make a corresponding
conclusion of law regarding the element of exclusivity.
We disagree that the District Court must provide analysis and
a citation to the record for its findings of fact. We have stated
To determine the effect of Rule 52(a), M.R.Civ.P.,
it is necessary to first define what is meant by the
terms "findings of fact and conclusions of law." This
Court has said that findings of fact and conclusions of
law are not the judgment, but merely the foundation for
the judgment. This foundation need not consist of a
multitude of evidentiary facts, but must be comprised of
ultimate facts.
In other words, the findings of fact required by
Rule 52(a) is nothing more than a recordation of the
essential and determining facts upon which the District
Court rested its conclusions of law and without which the
District Court's judgment would lack support.
In re the Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d
936, 938 (citation omitted).
Here, the District Court heard testimony, reviewed evidence
and made the determination that Wareings' use of the ditch in
question was exclusive since 1960. The District Court is only
required to set forth the ultimate facts of the case and it did so.
Therefore, the District Court's Amended Finding of Fact No. 24 is
adequate for the purposes of Rule 52(a), M.R.Civ.P. Moreover, upon
review of the trial record, we conclude that substantial evidence
supports the District Court's finding that Wareings have had
exclusive use of the ditch since 1960. Wareings, including their
14
son, testified extensively about their own use and maintenance of
the ditch since 1960 for diverting irrigation water from one Horse
Creek to Wareings' property. Additionally, Wareings testified that
throughout their ownership, they rented out their property to
others, who also used the ditch to convey irrigation water to
Wareings' property.
Furthermore, contrary to Schreckendgust's argument, the
District Court does make a corresponding conclusion of law
regarding the element of exclusivity. In Amended Conclusion of Law
No. 2; the District Court states that Wareings have proven, by
clear and convincing evidence, all the elements of a prescriptive
easement, including that of exclusivity. This conclusion, combined
with the rest of the District Court's findings of fact and
conclusions of law, provides the foundation for the District
Court's judgment that Wareings' have a prescriptive easement across
Schreckendgust's property.
Schreckendgust, nevertheless, asserts that the District Court
misapplied the law of exclusivity. Schreckendgust argues that
Wareings offered no proof that their right was separate from the
rights of others to use the ditch. Schreckendgust claims Wareings
did no~t use the ditch exclusively, but rather shared the use of the
ditch with many other landowners i:n the area. Therefore,
Schreckendgust asserts, Wareings could never assert an exclusive
right based on the simple fact that other people used the ditch
also. We, again, disagree.
15
This Court dealt with a similar issue 73 years ago. See Hays
v. De Atley (1923), 65 Mont. 558, 212 Pac. 296. In Hays, the
plaintiff, in his complaint, claimed the right to use one half of
the capacity of an irrigation ditch while conceding that the
defendants had the right to use the other half of the ditch's
capacity. The defendants responded that based on this claim to
only one half the capacity of the ditch, the plaintiff's use could
not have been exclusive. Therefore, the defendants argued that the
complaint failed on its face. We held that the plaintiff's
complaint was not subject to such an attack, explaining that:
[Tlhe term "exclusive" as employed by the courts in
enumerating the elements of prescription does not mean
that no one else may use the ditch except the plaintiff,
the claimant of the easement. It means no more than that
his right to use it does not depend on the like right in
others. Plaintiff's use may have been exclusive within
the meaning of the rule even though defendants used the
ditch, so long as their use did not interfere with the
use by plaintiff. . . . The rule has its foundation in
the general principle, recognized by all the authorities,
that the owner of the servient estate may use his
property in any manner and for any purpose consistent
with the enjoyment of the easement by the claimant.
Hays, 212 Pac. at 298 (citations omitted).
Likewise, Wareings are claiming a prescriptive easement for
use of the irrigation ditch to convey their allotted water from One
Horse Creek. Whether others, including Schreckendgust, also used
the ditch does not affect Wareings' claim. Despite the other
landowners' use of the ditch, Wareings' use was still exclusive
within the meaning of the rule. That is, Wareings' claim of
adverse use did not depend upon the other landowners' use of the
ditch. See m, 212 Pac. at 298. Consequently, we conclude that
16
the District Court properly applied the law relating to the element
of exclusivity in this prescriptive easement claim when it
determined that Wareings' use was exclusive since 1960.
Finally, Schreckendgust argues that Wareings' use was
permissive, not adverse. Schreckendgust claims that the record
indicates that Wareings' predecessor-in-interest, William E.
Gleason, used the ditch with permission. Specifically,
Schreckendgust testified that in 1937, Schreckendgust and his
father had a conversation with Gleason wherein Gleason said he had
received permission from Schreckendgust's predecessor-in-interest,
Excelsior Realty, to extend the ditch to what is now Wareings'
property. Schreckendgust asserts that Wareings failed to refute
this evidence of original permissive use, and, therefore, Wareings
cannot now claim that their use of the ditch was adverse.
Schreckendgust also contends that the District Court minimized the
impact of his testimony concerning the conversation with Gleason,
heard no testimony contradicting his own, failed to make a finding
that his testimony was so lacking in credibility so as to discard
it and ignored his policy of permissive use. Once more, we
disagree.
After a claimant has established the elements of a
prescriptive right, a presumption of adverse use arises and the
burden shifts to the landowner affected by the prescriptive claim
to establish that the claimant's use was permissive. Tanner v.
Dream Island, Inc. (1996), 275 Mont. 414, 425, 913 P.2d 641, 648;
Lemont Land Corp. v. Rogers (19941, 269 Mont. 180, 185, 887 P.2d
17
724, 727-20. If the landowner proves the use is permissive, a
prescriptive easement cannot be established. Lemont, 887 P.2d at
728. Here, the District Court concluded that Wareings, by clear
and convincing evidence, established the elements of a prescriptive
right and thereby raised the presumption that their use of the
ditch was adverse. Furthermore, the District Court explained that
the burden to rebut this presumption then shifted to
Schreckendgust.
Yet, the District Court found, in Amended Finding of Fact No.
16, that Schreckendgust's testimony concerning the 1937
conversation wherein Gleason had received "permission" to extend
the ditch "appears to be [Schreckendgust'sl own self-serving
conclusion." Additionally, contrary to Schreckendgust's
contention, in Amended Finding of Fact No. 20, the District Court
found. evidence contradicting Schreckendgust's testimony of
permissive use. In fact, the District Court found that
Schreckendgust himself testified on cross examination that neither
Wareings, nor their predecessors-in-interest, expressly sought his
permission to use the ditch. Instead, Schreckendgust testified
they would notify him when they turned on the water in the ditch.
The court found that while Schreckendgust perceived this as an
implied request for permission, other witness testimony indicated
that this notification was only neighborly custom.
As a result of these findings, the District Court, in Amended
Conclusions of Law Nos. 5 and 6, concluded that Schreckendgust
failed to rebut the presumption of adverse use, again pointing out
18
that the only evidence Schreckendgust presented was his own "self-
serving and unverifiable hearsay testimony" regarding the 1937
conversation with Gleason noted above. The District Court
described Schreckendgust's testimony as a conclusion having no
basis in the record. Furthermore, the District Court concluded
that both parties testified that for approximately the past 50
years, neither Wareings, Il0r their predecessors, asked
Schreckendgust for permission to use the ditch, but rather used it
as a matter of right.
The district court is in a better position to observe the
witnesses and judge their credibility than this Court. Double A&
Corp. v. Newland & Co. (19951, 273 Mont. 486, 494, 905 P.2d 138,
142. Therefore, "[wle will not second guess the district court's
determination regarding the strength and weight of conflicting
testimony." Double AA Corp., 905 P.2d at 142. Moreover, we review
a district court's findings to determine whether substantial
evidence supports those findings, not contrary findings. Rafanelli
v. Dale (Mont. 19961, 924 P.2d 242, 248, 53 St.Rep. 746, 750.
Consequently, after reviewing the District Court's findings,
we note only that the District Court did not "ignore"
Schreckendgust's testimony concerning his policy to give permission
to use the ditch. Rather, the District Court considered this
testimony along with Schreckendgust's testimony concerning the 1937
conversation with Gleason and weighed this against testimony given
by Wareings and other witnesses concerning the nature of Wareings'
use of the ditch. The court described the contradicting character
19
of the parties' testimony and determined that Schreckendgust's
testimony concerning the Gleason conversation was a "self-serving
conclusion" and "unverifiable hearsay" and, thereby, effectively
discarded it.
By making these findings, the District Court determined that
the testimony given by Wareings and other witnesses was more
credible than Schreckendgust's testimony. Based upon this
determination, the District Court concluded that Wareings
established a presumption of adverse use and Schreckendgust failed
to rebut this presumption. The court's decision was grounded in
the record, in its judgment of the witnesses' credibility and in
the law. Accordingly, we hold that the District Court's findings
of fact are supported by substantial evidence and that the District
Court properly determined that Wareings' use was adverse and not
permissive.
3. Under the doctrine of estoppel, are Wareings precluded
fromasserting a prescriptive easement right against Schreckendgust
after they acquired an express ditch easement from a neighboring
landowner over property previously owned by Schreckendgust?
Schreckendgust asserts that Wareings, in 1989, obtained an
express ditch easement from Steve Schertenleib who owns Florence
Orchard Homes Lot 38, a lot he purchased from Schreckendgust in
1988. Schreckendgust argues that by obtaining this ditch easement,
Wareings admitted that they were not entitled to make a
prescriptive easement claim with respect to Lot 38. Therefore,
Schreckendgust concludes, Wareings should be estopped from
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asserting a prescriptive easement across Lots 19 and 20 because
Schreckendgust owned these lots with Lot 38, as one unit, until he
sold Lot 38 to Schertenleib.
Schreckendgust relies on Kephart v. Portmann (1993), 259 Mont.
232, 237, 855 P.2d 120, 123. Schreckendgust points out that in
Kephart, we concluded that the plaintiffs were estopped from
challenging the defendants' ditch right because the plaintiffs had
acknowledged the defendants' superior ditch right in a 1960 Ditch
Agreement. Schreckendgust suggests that the Kevhart situation is
"nearly the mirror image" to the situation concerning Lot 38.
Therefore, Schreckendgust argues that because Wareings have
acknowledged the superior rights of Schreckendgust's successor,
clearly they should be estopped from denying the superior rights of
Schreckendgust.
We find Schreckendgust's argument unpersuasive. Because
estoppel is an affirmative defense, Schreckendgust bears the burden
of proof. Rule 8(c), M.R.Civ.P.; § 26-l-401, MCA; § 26-l-402, MCA.
See also, Insurance Specialists, Inc. v. Longfellow (1982), 201
Mont. 132, 135, 654 P.2d 500, 502; Baker Nat'1 Bank v. Lestar
(1969) .I 153 Mont. 45, 50-51, 453 P.2d 774, 777. In Keuhart, we
carefully considered the six elements of equitable estoppel and the
evidence supporting each element to determine that the plaintiffs
were estopped from challenging the defendants' ditch rights.
Keuhart, 855 P.2d at 123. In this case, Schreckendgust could meet
his burden of proof only by specifically arguing that each element
of estoppel is present and providing evidence in support. Yet,
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Schreckendgust did not develop or fully argue any of the estoppel
elements, either in the District Court or now on appeal.
In fact, in arguing on appeal that we should apply the Kephart
rationale, Schreckendgust fails to identify any of the six elements
of equitable estoppel. Instead, Schreckendgust makes a simple
conclusory statement that because "the ditch claimant [Wareingsl
has acknowledged the superior rights of the landowner's successor
[Schertenleibl, he clearly should be estopped from denying the
superior rights of the landowner himself [Schreckendgust].l' It is
Schreckendgust's burden, not this Court's, to establish that the
elements of estoppel are met, and we conclude that Schreckendgust
has failed to meet his burden in this case. Accordingly, we hold
that Wareings are not estopped from asserting their prescriptive
easement claim.
4. Did the District Court err when it failed to expressly
limit the scope of Wareings' prescriptive ditch easement both as to
location and method of maintenance?
In its Amended Conclusion of Law No. 8, the District Court
stated:
Plaintiffs do therefore possess an easement by
prescription across Defendant's real property for the
conveyance of their allotted water rights from One Horse
Creek by the course shown in the Water Resource Survey
for Ravalli County and labeled by that publication as the
"Samuel Miller Ditch."
Schreckendgust argues that the above language fails to limit
the scope of Wareings' easement for the irrigation ditch. He
contends that while he counterclaimed in this suit to quiet title
to numerous lots in Florence Orchard Homes, the ditch only crosses
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Lots 19 and 20. Furthermore, Schreckendgust argues that Wareings
have offered no proof of any claim to any parcels in Florence
Orchard Homes other than Lots 19 and 20. Therefore, he asserts
that the easement should be specifically limited to Lots 19 and 20.
Wareings argue that within Amended Conclusion of Law No. 8,
the District Court specifically delineated an easement for the
irrigation ditch where it is presently located. Therefore, they
contend that the District Court properly limited the scope of the
easement.
We have stated that when a prescriptive easement is acquired,
"the right of the owner of the dominant estate is governed by the
character and extent of use during the period requisite to acquire
it." Warnack, 879 P.2d at 724 (quoting Marta v. Smith (1981), 191
Mont. 179, 183, 622 P.2d 1011, 1013). The evidence shows that
Wareinqs, during the prescriptive period, used the "Samuel Miller
Ditch" to convey their allotted water from One Horse Creek to their
property. Furthermore, in Amended Conclusion of Law No. 8, the
District Court adequately limits the scope of Wareings'
prescriptive easement based on their use during the prescriptive
period.
First, the District Court specified that the character of
Wareings' use of the ditch easement was to convey their allotted
water from One Horse Creek. Second, the District Court specified
the extent of Wareinqs' use by indicating that the location of the
ditch was shown in the Water Course Survey for Ravalli County and
labeled as "Samuel Miller Ditch." See Appendix A. Therefore, the
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District Court need not expressly limit the scope of the easement
to Schreckendgust's Lots 19 and 20 in addition to its reference to
the location of the ditch as shown by the Water Resources Survey
for Ravalli County. Certainly, the District Court's reference to
the Water Resources Survey for Ravalli County adequately indicates
the location of the ditch as it crosses Schreckendgust's property.
Schreckendgust also argues that the District Court did not
limit the scope of Wareings' method of maintaining the ditch.
Schreckendgust notes that in Amended Finding of Fact No. 22 the
District Court found that Wareings' maintenance of the ditch
"consisted merely of shovel and hand cleaning." Schreckendgust
maintains that although Wareings failed to offer proof that the
scope of maintenance of the ditch should go beyond shovel and hand
cleaning, the District Court did not expressly limit Wareings'
maintenance of the ditch to shovel and hand cleaning. Wareings
respond that no one offered evidence that any large scale
maintenance was needed on the ditch. Therefore, Wareings contend
that, by implication, their maintenance of the ditch is limited to
their historical method of shovel and hand cleaning.
The District Court, in Amended Finding of Fact No. 22, found
that Wareings, throughout the prescriptive period, maintained the
ditch by shovel and hand cleaning. Wareings' method of maintaining
the ditch cannot exceed the method used during the prescriptive
period. See Marta, 622 P.2d at 1013. That is, Wareings'
maintenance of the ditch is limited to shovel and hand cleaning.
The District Court did not commit reversible error by failing to
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expressly limit Wareings' maintenance of the ditch to shovel and
hand cleaning.
In conclusion, the District Court adequately limited the scope
of Wareings' prescriptive easement as to the location of the ditch
in Amended Conclusion of Law No. 8. Furthermore, the District
Court did not commit reversible error by failing to expressly limit
the scope of Wareings' prescriptive easement as to their method of
maintenance.
5. Is Schreckendgust entitled to attorney fees under S 70-
17-112, MCA?
Schreckendgust argues that if he is successful in defeating
Wareings' prescriptive easement claim on appeal, he would then be
the prevailing party and entitled to attorney fees under 5 70-17-
112, MCA. However, we have affirmed the District Court on all
issues raised on appeal; therefore, Wareings are still the
prevailing parties. Accordingly, Schreckendgust is not entitled to
attorney fees under § 70-17-112, MCA.
6. Should this case have been remanded for a new trial?
Schreckendgust, in his supplemental brief, argues that the
Montana Supreme Court erred when it ordered the District Court to
reconsider its findings of fact and conclusions of law using the
proper burden of proof. Schreckendgust contends that the Montana
Supreme Court placed the District Court in the position of
determining whether its original application of the lower burden of
proof was reversible or harmless error. Therefore, Schreckendgust
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argues that the Montana Supreme Court should remand this case for
a new trial. We disagree.
In our May 14, 1996 Order, we ordered the District Court to
reconsider its findings of fact and conclusions of law applying the
clear and convincing burden of proof to the existing record. The
facts contained in the record were established during trial.
Whether the quantum of the evidence presented at trial satisfies
merely a preponderance of evidence burden or the higher clear and
convincing burden of proof is, in this case, solely within the
court's purview. Therefore, in remanding the case to the District
Court with instructions to reconsider its findings of fact and
conclusions of law by applying the clear and convincing burden of
proof to the existing record, we merely directed the court to
determine whether the existing record was sufficient to satisfy the
higher burden. The application of a burden of proof does not alter
the underlying facts or the law; it simply determines whether the
party with the burden has successfully borne the obligation which
the law has placed upon him to prove his case by a certain quantum
of evidence. Here, the trial court determined that even when
applying a higher burden of proof, Wareings had successfully
established the elements of their prescriptive easement claim. On
the basis of the record here, we do not disagree with the District
Court.
Schreckendgust, nevertheless, argues that only by remanding
for a new trial can he make a motion for substitution of the
District Court Judge under § 3-l-804(1) (g), MCA, and thereby insure
26
the District Court's impartiality. Schreckendgust argues that the
District Court Judge could not provide him with an impartial review
when he reconsidered the original findings of fact and conclusions
of law. Schreckendgust explains that the current District Court
Judge, prior to his election, served as opposing counsel in an
action concerning title to real property which was decided in
Schreckendgust's favor. After the current District Court Judge was
elected, Schreckendgust brought two additional real property cases
before him. In both, Schreckendgust's claims were defeated.
Schreckendgust notes that he appealed both cases, including this
case currently before us.
Schreckendgust further notes that he was involved in yet a
third case before this same District Court Judge, and promptly made
a motion for substitution. Schreckendgust contends that the
District Court Judge's former position as counsel in a suit
involving Schreckendgust was adverse, and now his recent decisions
as District Court Judge continue to be adverse. Therefore,
Schreckendgust asserts "it is fundamentally unfair that
[Schreckendgust] was not afforded the due process protection of
having a substitute District Judge hear the evidence and issue new
Findings of Fact and Conclusions of Law that applied the correct
burden of proof." We disagree.
Aside from finding nothing in the record that would support a
conclusion that the District Judge was biased or partial,
Schreckendgust had two separate opportunities to move for
substitution of district court judge during the original trial.
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First, under 5 3-l-804(1), MCA, each adverse party is entitled to
one substitution of a district judge. Second, under 5 3-l-805,
MCA, Schreckendgust was permitted to make a motion for
disqualification for cause. Schreckendgust failed to timely make
either motion. Clearly, Schreckendgust was not denied due process
in this case. Rather, he voluntarily waived his rights to
substitute or disqualify the District Court Judge. Accordingly, we
conclude that Schreckendgust's argument that we should have
remanded this case for a new trial is without merit.
Affirmed.
We Concur:
Justices
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