NO. 96-456
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
DAVID E. RIEMAN, FRANCES S.
RIEMAN, DIANNE L. CHRISTMANN,
ALLEN H. CHRISTMANN, RICHARD D.
TEBAY, GUY WEIMER and JANICE WEIMER,
Plaintiffs and Appellants,
v.
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ROGER ANDERSON, TED BERST, MINNIE
BERST, MIKE McCOY, DIANE McCOY, and
CLARINE STOVALL, .--:- 1 0 .
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Defendants and Respondents.
APPEAL FROM: District Court of the Thrteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge Presiding.
COUNSEL OF RECORD:
For Appellants:
Gary L. Spaeth, Attorney at Law, Helena, Montana
For Respondents:
James A. Hubble; Hubble & Ridgeway, Stanford, Montana
Submitted on Briefs: March 6, 1997
Decided: April 8, 1997
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
David and Francis Rieman, Dianne and Allen Christmann, Guy and Janice Weimer,
and Richard Tebay (Appellants) sought a determination of their easement right to use the
Nutting Ditch and its laterals, damages caused by interference with that right, and attorney
fees. The Thirteenth Judicial District Court, Yellowstone County, concluded that Appellants'
predecessor in interest had abandoned his ditch easement, and awarded attorney fees to
Respondents. We affirm.
Appellants raise five issues on appeal:
1. Do Respondents have standing to raise abandonment?
2. Did the District Court err when it concluded that Appellants' predecessor in
interest abandoned his ditch easement?
3. Did the District Court err when it concluded that Appellants' predecessor in
interest had authority to abandon his ditch easement?
4. Did the District Court err when it concluded that a ditch easement can be
abandoned even though the easement continued to be used by Respondents?
5. Did the District Court err in awarding attorney fees to Respondents?
BACKGROUND
The Old Mill Ditch Company, Inc., is a Montana corporation that diverts water from
the Yellowstone River to the Nutting Ditch based on water shares owned by lateral users.
Old Mill does not claim an interest in the Nutting Ditch or its laterals. The Nutting Ditch
2
flows through sections of Stillwater and Yellowstone Counties fiom a headgate located on
the Old Mill Ditch in Section 27, Township 2 South, Range 23 East, M.P.M., Stillwater
County, Montana. The disputed side lateral diverts fiom the Nutting Ditch on property
owned by Guy and Janice Weimer in the SE114 NE114 of Section 26, Township 2 South,
Range 23 East, M.P.M., Stillwater County, Montana. (See attached map.)
Appellants, except the Weimers, own real property in Section 25, Township 2 South,
Range 23 East, M.P.M., Yellowstone County, Montana, and trace ownership of their real
property and Old Mill stock to Larry Myers. Roger Anderson, Ted and Minnie Berst, Mike
and Diane McCoy, and Clarine Stovall (Respondents) are owners of real property located
east of Appellants, and use water from the Old Mill and Nutting Ditches.
Owners of Old Mill stock are entitled to use water from the Old Mill Ditch.
Appellants and Respondents own Old Mill stock as follows:
Riemans 14 shares Anderson 18 shares
Christrnanns 3 shares Bersts 7 shares
Tebay 20 shares McCoys 53 shares
Weimers 4 shares Stovall 38 shares
It is undisputed that before 1974, Appellants and Respondents, or their predecessors
in interest, except the Weimers, had a ditch easement to use the Nutting Ditch to transport
water from the Old Mill Ditch to their properties. Respondents have an easement in the
Nutting Ditch to transport water to their property located down ditch from Appellants.
In 1972, Myers purchased real property located in Section 25, Township 2 South,
Range 23 East, M.P.M., Yellowstone County, Montana, and acquired Old Mill stock with
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it. Two years later he mortgaged the property to John Hancock Mutual Life Insurance
Company. Until 1976, he irrigated the property by using a side lateral from the Nutting
Ditch. Myers' historical access for the side lateral was a diversion located on the Nutting
Ditch on property now owned by the Weimers.
In 1974, Myers stopped paying the assessments for his shares of Old Mill stock.
Thereafter, they were paid by John Hancock. In 1975, because Myers was experiencing
financial difficulties, he decided to t y to subdivide his property. He contacted Harlan Lund,
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a surveyor, who prepared a certificate of survey subdividing the property into twenty-acre
residential tracts.
During preparation of the survey, Myers and Lund discussed the gravelly soil and high
water table on Myers' property. These conditions could prevent the property from being
subdivided into residential tracts with underground septic systems. From 1974 to 1981,
Myers informed Lund and neighboring landowners that he did not intend to further irrigate
his property. In 1975, he plugged the diversion from the Nutting Ditch to his side lateral by
filling it with dirt. At approximately the same time, he built a rough road system for his
proposed subdivision and, in the process, plowed in his irrigation ditches. After 1976, Myers
did not irrigate into his side lateral or assist in maintaining the Nutting Ditch. In the early
1980s, he removed several culverts along the side lateral so that water could not flow onto
his property.
In September 1976, John Hancock commenced foreclosure proceedings against
Myers' property. Plaintiffs, except the Weimers, acquired their property from James
Murphy, the Federal District Court trustee responsible for selling Myers' property. In
conjunction with the sale, Murphy transferred shares of Old Mill stock to the Riemans,
Christmanns, and Tebay. He took the position that the stock did not guarantee that its
holders would receive water. The Weimers' predecessor in interest did not use the Nutting
Ditch. Instead, the Weimers acquired Old Mill stock from individuals other than the
predecessors in interest to their property.
In 1991 and 1992, the Weimers attempted to pump water from the Nutting Ditch. At
approximately the same time, the remaining Appellants attempted to access water from the
Nutting Ditch into the side lateral by reopening Myers' historical diversion. Respondents
learned of the pump and diversion and had them removed.
On May 13, 1993, Appellants filed a complaint claiming a right to use the Nutting
Ditch, and its laterals that Respondents interfered with their right to use the ditch, and
requesting damages and attorney fees. Respondents asserted as an affirmative defense that
Myers had abandoned his easement in the Nutting Ditch before the Riemans, Christmanns,
and Tebay acquired title to their property, and that the Weimers never possessed an easement
to use the Nutting Ditch.
Following a five-day trial, the District Court, sitting without a jury, concluded that the
Weimers never had an easement to use the Nutting Ditch. It further concluded that the
Nutting Ditch easement formerly owned by Myers, as predecessor in interest to the Riemans,
Christmanns, and Tebay, was abandoned by Myers as demonstrated by his acts and
expressions of intent from 1974 to 1981. The court also awarded attorney fees to
Respondents pursuant to 8 70- 17-112(5), MCA. This appeal followed.
DISCUSSION
1. Do Respondents have standing to raise abandonment?
A district court's ruling on standing is a conclusion of law. We review conclusions
of law to determine whether the district court's interpretation of the law is correct. Jim's
Excavating Service v. HKM Assoc. (1994), 265 Mont. 494,501, 878 P.2d 248,252.
Appellants argue that Respondents lack standing to assert the affirmative defense of
abandonment because Respondents are co-owners of the Nutting Ditch, the dominant
easement. Appellants assert that abandonment should be reserved as a defense for the
owners of the servient easement--i.e. up ditch landowners not parties to this action.
Respondents claim that the District Court raised standing for the first time after the trial had
been completed, therefore barring its consideration on appeal.
Objections to standing cannot be waived and may be raised by a court sua sponte.
Stewart v. Bd. of Cty. Com'rs of Big Horn Cty. (1977), 175 Mont. 197,294, 573 P.2d 184,
188. We conclude that the issue of Respondents' standing to assert abandonment as an
affirmative defense is properly before this Court.
Respondents in this case have a personal stake in the litigation. Respondents, all
ranchers, would have to share a ditch easement and water flowing therein with many more
people than they did when Myers irrigated his property. If Appellants prevailed,
Respondents would also be required to pay attorney fees and damages for interfering with
Appellants' pump and diversion systems.
Therefore, we hold that Respondents have standing to assert all their defenses,
including an affirmative defense that Appellants' predecessor in interest abandoned his
easement to use the Nutting Ditch. The District Court did not err when it concluded that
Respondents have standing.
2. Did the District Court err when it concluded that Appellants' predecessor in
interest abandoned his ditch easement?
Abandonment is a question of fact. Thomas v. Ball (1923), 66 Mont. 161, 166,213
P. 597,599. This Court reviews findings to determine whether they are clearly erroneous by
using a three-part test.
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
the evidence. Third, if substantial evidence exists and the effect of the
evidence has not been misapprehended the Court may still find that a 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.
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287
(citation omitted).
The Montana Supreme Court has previously explained the requirements to prove
abandonment.
In order for there to be abandonment there must be an intent to abandon. An
intent to abandon has not been found from mere nonuse. Abandonment means
a voluntary act involving a concurrence of act and intent. The act is the
relinquishment of possession and the intent is a manifestation not to resume
beneficial use of it. Neither of the elements alone is sufficient.
Shammel v. Vogl (1964), 144 Mont. 354, 359, 396 P.2d 103, 106. The party claiming
abandonment must prove that the "acts claimed to constitute the abandonment [are] of a
character so decisive and conclusive as to indicate a clear intent to abandon the easement."
City of Billings v. O.E. Lee Co. (1975), 168 Mont. 264,268, 542 P.2d 97,99.
The District Court found that Myers plugged the diversion from the Nutting Ditch to
his side lateral by filling it with dirt. He plowed in his ditches and made statements to
neighboring landowners of his intent to no longer irrigate. Myers hired a surveyor to prepare
a subdivision but, in order to sell the tracts, he had to lower the water table on the property.
This meant that after 1975 he could no longer irrigate. In the early 1980s, Myers removed
several culverts so that water could not flow onto his property. These findings are not clearly
erroneous.
Although there is evidence that Myers placed canvas and wooden diversions in the
Nutting Ditch on several occasions during the 1980s, these acts are contrary to Myers'
historical use of the Nutting Ditch, which was limited to diverting water into his side lateral.
Myers' later diversions did not manifest an intent to resume beneficial use of his easement.
Appellants also argue that because there was water flowing down the Nutting Ditch
which belonged to Myers, that he did not abandon his easement. This argument confuses the
difference between water rights and a ditch easement. Water rights and ditch rights are
separate and distinct rights. McDonnell v. Huffine (1912), 44 Mont. 41 1, 422-23, 120 P.
792,795. One can be abandoned without abandoning the other. McDonnell, 120 P. at 795.
A person may own a water right without a ditch right, or own a ditch right without a water
right. McDonnell, 120 P. at 792.
We conclude that the District Court's finding that Myers abandoned his easement in
the Nutting Ditch between 1975 and 1981 is supported by substantial evidence. Further, in
accordance with DeSaye, we determine that the court did not misapprehend the effect of the
evidence. Finally, after a review of the record, we are not left with a definite and firm
conviction that a mistake has been committed. Accordingly, we hold that the District Court's
finding that Myers abandoned his Nutting Ditch easement is not clearly erroneous.
3. Did the District Court err when it concluded that Appellants' predecessor in
interest had authority to abandon his ditch easement?
Appellants contend that Myers did not own, and therefore could not evidence the
intent to abandon his ditch easement, because he transferred his property to his wife, Sandra
Diane Myers. Appellants further argue that after John Hancock initiated foreclosure
proceedings against Myers' property, that Myers lacked authority to abandon his ditch
easement. These contentions are made without any citation to legal authority.
At trial, Appellants did not offer into evidence any deeds or mortgage documents
regarding Myers' interest in his property. On appeal, they provide no legal authority for their
abandonment argument. An appellant carries the burden of establishing error by the trial
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court. Moreover, Rule 23, M.R.App.P., requires the appellant to cite to authority which
supports the position being advanced on appeal. Appellants' argument is nonpersuasive and
we decline to address it on appeal.
4. Did the District Court err when it concluded that a ditch easement can be
abandoned even though the easement continued to be used by Respondents?
Appellants argue that because water continued to flow through the Nutting Ditch
across the lands of servient easement holders to Respondents, that Respondents cannot claim
abandonment. Appellants suggest that Respondents want Myers' ditch easement abandoned,
but not their own. Between 1974 and 1981, Myers evidenced the intent to abandon his
Nutting Ditch easement. Although Myers abandoned his ditch easement, this does not mean
that Respondents, as co-owners of the easement, also abandoned their right to use it.
We hold that the District Court did not err when it concluded that Myers abandoned
his easement to use the Nutting Ditch even though Respondents continued to use the ditch.
5. Did the District Court err in awarding attorney fees to Respondents?
Appellants argue that they should not be required to pay attorney fees because this
case did not involve interference, but focused instead on whether Appellants' easement had
been abandoned.
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 lawhl 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.
Appellants brought this case pursuant to 5 70- 17-1 12, MCA, pleaded interference with
their easement, and claimed damages as a result. Respondents counterclaimed based on
Appellants' interference and, at trial, proved that Appellants improperlypumped and diverted
water from the Nutting Ditch.
In Sharon v. Hayden (1990), 246 Mont. 186,803 P.2d 1083, the defendants were the
prevailing parties in a case brought to enforce ditch easement rights under 5 70- 17-112,
MCA. We held that because the defendants success~lly
enforced the provisions of fj 70- 17-
1 12, MCA, they were entitled to costs and reasonable attorney fees.
Here, the District Court determined that Respondents were prevailing parties on all
issues and ordered a hearing for calculation of attorney fees. Under fj 70- 17- 112(5), MCA,
Respondents prevailed on all issues and are entitled to attorney fees as a matter of law. We
hold that the District Court did not err in awarding attorney fees to Respondents.
Affirmed.