Musselshell Ranch Company v. Seidel-Joukova

JUSTICE RICE,

concurring.

¶34 I agree with much of the legal analysis in Justice Nelson’s dissenting opinion and believe we must be careful about applying general, common law easement concepts or public policy where the Legislature has enacted a specific statute governing the ditch easement dispute at issue. Otherwise, the statute could lose its distinctive quality. However, I believe the Court has reached the correct outcome and thus concur in the decision.

¶35 The District Court found the installation of the culvert and rock bridge had hindered Plaintiffs’ ability to maintain their ditch and, although the court deemed the hindrance to be minimal, it is clear to me that Defendants’ actions “encroach[ed] upon or otherwise impair[ed]”Plaintiffs’ secondary easement rights. Section 70-17-112(2), MCA. While some uses of the servient estate may result in negligible impacts upon dominant ditch easement rights, the impacts here were significant enough to constitute a violation of the statute.