No. 01-780
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 191
JERRY T. RAY,
Plaintiff and Appellant,
v.
GAYLE B. NANSEL and PAUL G. BROMENSHENK,
as co-trustees under The Last Will and Testament of
Gerald Bromenshenk, DARLENE F. BROMENSHENK,
ZIMMERMAN FAMILY LIMITED PARTNERSHIP,
and JOHN DOES 1 THROUGH 10,
Defendants, Respondents and Cross-Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Gregory R. Todd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon E. Doak, Doak & Associates, P.C., Billings, Montana
For Respondents/Cross-Appellants:
Reneé L. Coppock and James R. Hintz, Crowley, Haughey, Hanson, Toole &
Dietrich, P.L.L.P., Billings, Montana
Submitted on Briefs: March 21, 2002
Decided: August 29, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Jerry T. Ray appeals from a Judgment of the Thirteenth
Judicial District Court, Yellowstone County. Gayle B. Nansel, Paul
G. Bromenshenk, Darlene F. Bromenshenk, the Zimmerman Family
Limited Partnership and John Does 1 through 10 (collectively, the
“Defendants”) cross-appeal from the District Court’s Memorandum and
Order. We affirm in part and reverse in part.
¶2 The following issues are dispositive of this appeal:
¶3 1. Did the District Court err in concluding that Ray had
failed to prove a prescriptive easement over the Bromenshenk
Property?
¶4 2. Did the District Court err in concluding that Ray had
failed to prove a prescriptive easement over the Zimmerman
Property?
¶5 3. Did the District Court err in reducing the award of the
Defendant’s attorneys’ fees?
¶6 4. Did the District Court err in disallowing costs claimed by
the Defendants?
BACKGROUND
¶7 This dispute revolves around Ray’s use of a wastewater ditch
(the “Wastewater Ditch”) over the Defendants’ properties in
Yellowstone County, Montana. In November 1988, Ray acquired land
(the “Ray Property”) from William Deines and William Deines, Jr.
(collectively, the “Deines”). The Deines still own property (the
“Deines Property”) that abuts the southern boundary of the Ray
Property.
2
¶8 The Zimmerman Family Limited Partnership owns property (the
“Zimmerman Property”) that is roughly to the southeast of the Ray
Property. Their property borders the eastern edge of the Deines
Property. They leased this property to John Zimmerman during the
time encompassed by this dispute. Gayle B. Nansel, Paul G.
Bromenshenk and Darlene Bromenshenk collectively own property (the
“Bromenshenk Property”) to the east of and adjacent to the
Zimmerman Property.
¶9 Before Ray acquired his property, the Deines grew crops on the
Ray Property from 1975 until approximately 1989. When irrigating
these crops, the Deines created wastewater, which drained along the
Wastewater Ditch. The ditch originated on the Ray Property,
traveled along the northern edge of the Deines Property and then
crossed the Zimmerman and Bromenshenk properties. It finally
drained into a larger irrigation ditch on the Bromenshenk Property.
¶10 Each year, after the Deines were finished irrigating, John
Zimmerman would close the Wastewater Ditch during the first or
second week of August. He would do this by plowing over the ditch
on the Zimmerman Property. The following spring, the Deines would
re-pull the ditch along substantially the same route. The
Bromenshenks did not close the ditch across their property, so the
Deines did not need to re-pull it each year. This arrangement was
largely a matter of neighborly accommodation.
¶11 When Ray began farming and irrigating his land, however, the
relationship between John Zimmerman and Ray quickly eroded.
Apparently John Zimmerman opened the Wastewater Ditch in 1990 and
3
possibly again in 1991. In 1992, Ray pulled the Wastewater Ditch
across the Zimmerman Property. To prevent a conflict with John
Zimmerman, Ray asked an on-duty Yellowstone County Sheriff Deputy
to accompany him while he pulled the ditch.
¶12 On May 4, 1993, the Defendants’ attorney sent Ray a letter
revoking permission to use the Wastewater Ditch across the
Zimmerman Property. Despite the letter, Gary Zemlicka, who was
working at the direction of Ray, pulled the Wastewater Ditch across
the Zimmerman Property in 1993. Ray ran wastewater across the
ditch at least twice that year. Zemlicka also pulled the
Wastewater Ditch across the Zimmerman Property in 1994 and 1995.
¶13 During this time, John Zimmerman confronted Zemlicka about
pulling the Wastewater Ditch and informed him that Ray did not have
permission to pull the ditch. Zemlicka occasionally discovered
that someone had obstructed the culvert leading onto the Zimmerman
Property. Each time Zemlicka discovered an obstruction, he or Ray
would remove the obstruction and continue running water through the
ditch.
¶14 Ray again pulled the Wastewater Ditch across the Zimmerman
Property in 1996. That August, John Zimmerman plugged the culvert
leading onto the Zimmerman Property. As a result, Ray again called
a Yellowstone County Deputy Sheriff. A deputy responded, but
refused to intervene. He informed Ray and John Zimmerman that
their dispute was a civil matter and that they should contact their
attorneys.
4
¶15 In September, Ray again attempted to flow water through the
Wastewater Ditch. Because of the obstruction, however, the water
flooded the Zimmerman Property. Upon seeing this, Paul Bromenshenk
pulled a new ditch south into another wastewater ditch to avoid
further flooding.
¶16 On January 20, 2000, Ray sued the Defendants to quiet title to
a prescriptive easement across the Zimmerman and Bromenshenk
Properties. Ray also claimed that the Defendants had obstructed
the easement and sought damages, an injunction to restore the ditch
and attorney’s fees. The Defendants counterclaimed to quiet title
to their properties and to obtain trespass damages and an
injunction. Before trial, however, the parties agreed to dismiss
their respective damages claims.
¶17 The District Court held a trial on March 26 and 27, 2001. On
May 30, 2001, the court held that Ray did not have a prescriptive
easement across either the Zimmerman or Bromenshenk Properties. It
also granted the Defendants an injunction restraining Ray from
running wastewater across their lands and held that they were
entitled to costs and attorney’s fees.
¶18 The Defendants then filed a Memoranda of Costs &
Disbursements. Ray objected to the fees and costs claimed. The
court held a hearing on July 13, 2001, and, on August 2, 2001,
entered a judgment granting the Defendants certain costs and
attorney’s fees. Ray appealed the court’s judgment and the
Defendants cross-appealed the court’s award of attorney’s fees and
costs.
5
STANDARD OF REVIEW
¶19 We review the findings of a district court sitting without a
jury to determine if the court’s findings were clearly erroneous.
See Rule 52(a), M.R.Civ.P. A district court's findings are clearly
erroneous if substantial credible evidence does not support them,
if the trial court has misapprehended the effect of the evidence or
if a review of the record leaves this Court with the definite and
firm conviction that a mistake has been committed. See Guthrie v.
Hardy, 2001 MT 122, ¶ 24, 305 Mont. 367, ¶ 24, 28 P.3d 467, ¶ 24.
Additionally, we must view the evidence in the light most favorable
to the prevailing party when determining whether substantial
credible evidence supports the district court’s findings. See
Guthrie, ¶ 24.
¶20 We review a district court's conclusions of law to determine
whether those conclusions are correct. See Guthrie, ¶ 24.
ISSUE ONE
¶21 Did the District Court err in concluding that Ray had failed
to prove a prescriptive easement over the Bromenshenk Property?
¶22 An easement is a nonpossessory interest in land that gives a
person the right to use the land of another for a specific purpose.
See Ruana v. Grigonis (1996), 275 Mont. 441, 447, 913 P.2d 1247,
1251; Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982,
985. To establish a prescriptive easement, a claimant must
establish open, notorious, continuous, uninterrupted, exclusive and
adverse use for five years. See § 70-19-404, MCA; Renner v.
Nemitz, 2001 MT 202, ¶ 13, 306 Mont. 292, ¶ 13, 33 P.3d 255, ¶ 13.
6
The claimant must prove these elements by clear and convincing
evidence. See Renner, ¶ 13.
¶23 We have consistently followed the rule that open, notorious,
continuous, uninterrupted and exclusive use raises a presumption
that the use was also adverse. See Albert v. Hastetter, 2002 MT
123, ¶ 20, 310 Mont. 82, ¶ 20, 48 P.3d 749, ¶ 20. A claimant’s
failure to prove any element for the full prescriptive period is
fatal to the entire claim. See Grimsley v. Estate of Spencer
(1983), 206 Mont. 184, 196, 670 P.2d 85, 91-92. Although its
reasoning was wrong, the District Court correctly held that Ray’s
use of the Wastewater Ditch was not adverse during any period of
his use.
¶24 In reaching its conclusion, the court explained that Ray had
entered upon the Bromenshenk Property no more than three times to
maintain the Wastewater Ditch. Such use, the court reasoned, did
not provide actual or presumed notice of a hostile claim of right.
The District Court, therefore, concluded that Ray’s use of the
Wastewater Ditch over the Bromenshenk Property was not open,
notorious and adverse during any period of his use.
¶25 The court improperly focused on Ray’s entry onto the
Bromenshenk Property. Ray is not seeking an easement to walk
across the Bromenshenk Property. He is seeking an easement to flow
water through the Wastewater Ditch on the Bromenshenk Property.
The proper focus, therefore, is whether Ray’s efforts to drain
wastewater through the ditch were open, notorious or adverse.
7
¶26 Use is “open and notorious” when it gives the landowner actual
knowledge of the claimed right, or is of such a character as to
raise a presumption of notice. See Albert, ¶ 21; Hitshew v.
Butte/Silver Bow County, 1999 MT 26, ¶ 17, 293 Mont. 212, ¶ 17, 974
P.2d 650, ¶ 17. Furthermore, when deciding the issue of adverse
use, the court must determine whether the owner of the servient
estate produced clear and convincing evidence that the use was
permissive. See Albert, ¶ 28. Although the District Court erred
in concluding that Ray’s use was not open and notorious, it was
correct in concluding that his use was not adverse.
¶27 Paul Bromenshenk testified at trial that he was aware of the
Wastewater Ditch running across his property. He was also aware
that Ray ran water across the ditch. In particular, Paul
Bromenshenk testified as follows:
Question: In your experience, who has used the
wastewater ditch on the Zimmerman and
Bromenshenk properties?
Answer: Who has ran water across that ditch? I know
Bill Deines has, Jerry Ray, I guess, and
Johnny [Zimmerman]. And that’s all to my
knowledge that – yeah, that’s all I know,
yeah.
¶28 Although Paul Bromenshenk clearly should have been aware of
Ray’s use of the ditch, Ray’s use of the ditch was nevertheless
permissive. While Ray did not abide by all of the conditions
requested of him when using the Wastewater Ditch, the evidence is
clear that Ray’s use of the ditch remained permissive. Paul
8
Bromenshenk testified that he never withdrew permission to run
water through the Wastewater Ditch:
Question: Have the owners of the Bromenshenk
Property ever withdrawn permission or refused
to let Mr. Ray run wastewater across the
Bromenshenk Property?
Answer: No, we’ve never even – up until this – until
that – until we received the [complaint] in
the mail, there was no contact or stopping or
anything of wastewater on our property.
¶29 Ray also testified as to the permissive nature of his use:
Question: Did you ever personally or through an agent
tell the Bromenshenks that you were using the
ditch across their land under a claim of right
and not by permission?
Answer: There was at least one time I had visited with
Paul. Paul informed me that I wasn’t the only
one having trouble with John Zimmerman. This
was a few years back.
Question: Okay. But did you tell him –
Answer: And Paul informed me that I had a right to run
my water. Got along pretty good. Bought some
hay from him for several years. And that’s
all I can remember of a conversation like
that.
Question: Did you tell him that you had a right – did
you tell him you had a right and you were not
using his ditch by permission?
Answer: I don’t recall that, ma’am.
¶30 We will affirm a district court's ruling if the court reaches
the correct result, even if it does so for the wrong reason. See
Eschenbacher v. Anderson, 2001 MT 206, ¶ 40, 306 Mont. 321, ¶ 40,
34 P.3d 87, ¶ 40. While the District Court incorrectly focused on
Ray’s entry onto the Bromenshenk Property, the record supports its
conclusion that Ray’s use was not adverse. Thus, the court did not
err in concluding that no prescriptive easement existed across the
Bromenshenk Property.
ISSUE TWO
9
¶31 Did the District Court err in concluding that Ray had failed
to prove a prescriptive easement over the Zimmerman Property?
¶32 The District Court held that Ray did not show by clear and
convincing evidence that his use of the Wastewater Ditch across the
Zimmerman Property was continuous and uninterrupted for the
necessary five-year period. Although both parties point to several
inconsistent findings made by the court, we need not concern
ourselves with these discrepancies. For purposes of this appeal,
determining whether Ray’s use was continuous and uninterrupted is
sufficient.
¶33 For use “[t]o be ‘continuous and uninterrupted,’ the use of a
claimed right must not be abandoned by the user or interrupted by
an act of the landowner.” Albert, ¶ 23. The court concluded that
Ray’s adverse use began in 1992. We agree. While Ray argues that
the prescriptive period began at least as early as 1991, the
evidence does not support that conclusion. Instead, Ray’s
testimony suggests that his use of the Zimmerman property was
permissive in 1990 and 1991. Specifically, Ray testified:
Question: So he opened [the Wastewater Ditch] again
in 1991 according to your letter?
Answer: Might have been 1990.
Question: Well, there’s two times there?
Answer: (Reviewing document.) Okay. He must have
tried to do it each time earlier in the season
according to this.
Question: But did you not testify that you opened it in
1991?
Answer: Yes, and I did. Went right back and
straightened up the ditch that he did.
Question: So twice you straightened up the ditch?
Answer: Probably more than twice.
Question: So he probably plowed a ditch for you more
than twice?
10
Answer: He would have been plowing on the first time
through, which would have been earlier in the
year.
¶34 The act of opening the Wastewater Ditch in 1990 and 1991
implies that John Zimmerman permitted Ray to use the Wastewater
Ditch as part of the neighborly accommodation that began when the
Deines farmed the Ray Property. Ray counters this conclusion by
arguing that the court’s own findings better support the alternate
conclusion that the prescriptive period began as early as 1991.
¶35 The court noted that Ray re-pulled and ran water through the
Wastewater Ditch without asking permission. It also found that
animosities existed between John Zimmerman and Ray during 1990 and
1991. The Defendants’ attorney, however, sent Ray a letter that
expressly noted the permissive nature of Ray’s predecessors’ use.
While Ray may not have asked for permission to use the Wastewater
Ditch, he cites no evidence that suggests that the Defendants
withdrew permission to use the Wastewater Ditch before 1992. For
these reasons, the District Court did not err in concluding that
Ray’s use of the Wastewater Ditch was not adverse in 1990 and 1991.
¶36 The question thus becomes whether John Zimmerman interrupted
Ray’s use within five years of 1992. Specifically, we must decide
whether the court correctly held that John Zimmerman interrupted
Ray’s use in September 1996. We conclude that it did.
¶37 In August 1996, John Zimmerman plugged the culvert leading
onto his property, thus blocking the ditch. Ray nevertheless
attempted to use the Wastewater Ditch in September. When Ray began
11
running water through the ditch, however, the blockage caused the
Zimmerman Property to flood. Upon seeing the flooding, Paul
Bromenshenk pulled a second wastewater ditch so that the water
would not run onto their road. This evidence, the court concluded,
indicated that the Wastewater Ditch no longer existed across the
Zimmerman Property.
¶38 What establishes continuous use depends on the nature and
character of the claimed right; such use does not necessarily
entail constant use. See Hays v. De Atley (1923), 65 Mont. 558,
564, 212 P. 296, 298. All that the claimant must show regarding a
ditch conveying water is that he used the ditch whenever he needed
to do so. See Te Selle v. Storey (1957), 133 Mont. 1, 6, 319 P.2d
218, 220. Ray argues that any interruption in September occurred
after the typical irrigation season and thus did not interrupt his
normal use of the ditch. Ray nevertheless attempted to use the
Wastewater Ditch in September 1996 to irrigate his crops for a
third cutting of hay. John Zimmerman blocked this use.
¶39 The District Court concluded that this blockage of the ditch
resulted in an interruption of Ray’s adverse use. Ray argues that
the court’s result, taken to its logical extreme, would require a
claimant to continuously run water through a ditch to prevail on a
prescriptive easement claim. John Zimmerman, however, did not
block the ditch at a time when Ray was not using it. Instead, John
Zimmerman blocked the ditch while Ray was irrigating his crops.
Therefore, we conclude that the District Court did not err in
12
concluding that Ray’s use was not continuous and uninterrupted for
the five-year period.
ISSUE THREE
¶40 Did the District Court abuse its discretion by awarding one-
half of the attorney’s fees claimed by the Defendants?
¶41 A district court has discretion in determining the
reasonableness of attorney’s fees. See Carkeek v. Ayer (1980), 188
Mont. 345, 347, 613 P.2d 1013, 1015. Absent an abuse of that
discretion, we will not overturn such determinations. See Carkeek,
188 Mont. at 347-48, 613 P.2d at 1015. We have explained a court’s
determination of the reasonableness of attorney’s fees as follows:
The determination of reasonable attorney's fees is not
subject to precise calculation or a formulaic approach.
We previously have stated that the following factors
should be considered as guidelines in making such a
determination: (1) the amount and character of services
rendered; (2) the labor, time, and trouble involved; (3)
the character and importance of the litigation in which
the services were rendered; (4) the amount of money or
the value of the property to be affected; (5) the
professional skill and experience required; (6) the
attorneys' character and standing in their profession;
and (7) the result secured by the services of the
attorneys. These factors are not exclusive, however, and
district courts may consider other factors as well. Thus,
the reasonableness of attorney's fees must be ascertained
under the unique facts of each case.
Pankratz v. Teske, 2002 MT 112, ¶ 22, 309 Mont. 499, ¶ 22, 48 P.3d
30, ¶ 22 (citing Chamberlin v. Puckett Constr. (1996), 277 Mont.
198, 205, 921 P.2d 1237, 1241-42 (citations omitted)).
¶42 The District Court concluded that § 70-17-112(5), MCA,
entitled the Defendants to reasonable attorney’s fees. The
Defendants submitted a claim of $1,133 for the Bromenshenk
Defendants and $36,069.50 for the Zimmerman Defendants. After
13
reviewing the case and the attorneys’ role in it, the court decided
to reduce the Defendants’ attorney's fees by half.
¶43 In reaching this conclusion, the court listed several factors
on which it relied. The court first noted that lead counsel were
relatively equal as to experience and standing within the legal
community. Also, the Defendants’ counsel rendered more than twice
the time and services that Ray’s counsel rendered, even though Ray
had the “laboring oar to carry the burden of proof.” The court
next explained that neither party claimed money damages and that
the matter required no greater professional skill or experience
than a variety of other types of cases. It also observed that Ray
was successful in proving many of the elements for a prescriptive
easement. Furthermore, the court noted that the Defendants’
witnesses at trial were somewhat repetitive and that the
Defendants’ attorneys duplicated some of their work. The court
explained that, despite these findings, the Defendants’ attorneys
spent substantially more time on the matter than did Ray’s
attorney. Based on these reasons, the court decided to reduce the
award of attorney’s fees by half.
¶44 The Defendants counter that the District Court
mischaracterized the relevant evidence and factors when it reduced
their attorney’s fees. They contend that their attorney had to
represent a multiple-party client regarding two pieces of property;
they had a more difficult burden to carry; their case required
calling multiple witnesses; they had a stronger motivation to
14
vigorously defend their case than Ray had; and they ultimately
prevailed in this matter.
¶45 Balancing these various factors is the job of the District
Court. See Carkeek, 188 Mont. at 347-48, 613 P.2d at 1015. The
Defendants undoubtedly feel that all these factors taken together
deserve a higher award of attorney’s fees. Weighing this various
evidence, however, we do not conclude that the court exceeded its
discretion by reducing the Defendants’ requested fees by half.
¶46 The Defendants also argue that a fifty percent reduction in
attorney’s fees was arbitrary. We disagree. We have held that a
court must base an award of attorney’s fees on some competent
evidence. See Krone v. McCann (1983), 205 Mont. 190, 192, 666 P.2d
766, 767; Petritz v. Albertsons, Inc. (1980), 187 Mont. 102, 110,
608 P.2d 1089, 1094. The district courts in both Krone and Petriz
provided no rationale or evidentiary foundation for reaching their
conclusions. The District Court in this case, however, did provide
comparisons between counsel for Ray and the Defendants. Based on
this comparison, the court decided to reduce the award of
attorney’s fees by half. While the Defendants may not like the
result, the court had a basis for it.
¶47 The District Court, therefore, did not abuse its discretion
when it awarded the Defendants one-half of their requested
attorney’s fees.
ISSUE FOUR
¶48 Did the District Court err in disallowing costs claimed by the
Defendants?
15
¶49 Section 25-10-201(9), MCA, provides that a party may claim
costs for “other reasonable and necessary expenses as are taxable
according to the course and practice of the court or by express
provision of law.” The Defendants argue that the District Court
erred in disallowing costs for court reporter services, subpoena
services and Westlaw computer research. They claim that these
costs were necessary and that the court thus erred in not awarding
them.
¶50 We agree with the Defendants that the transcripts were
necessary to prepare post-trial findings and conclusions as
required by the District Court. Likewise, we conclude that the
subpoena services were necessary to compel witnesses to attend
trial. We disagree, however, that costs associated with Westlaw
research were necessary. These costs may be common costs in modern
law practice, but they primarily involve improving a law practice’s
efficiency. Therefore, the District Court could reasonably
conclude that they were not necessary costs.
¶51 For these reasons, we conclude that the District Court was
correct in denying costs for Westlaw research, but erred in denying
costs for transcript expenses and subpoena service fees.
16
¶52 Affirmed in part and reversed in part.
/S/ JIM REGNIER
We Concur:
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
17