Ray v. Nansel

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