Fox v. BHCC II, Inc.
2017 MT 218
| Mont. | 2017Background
- Hogan’s Slough/Canyon Creek ditch and related irrigation easement were established in 1905; the Fox family has exercised the ditch and water rights since 1927.
- BHCC II, Inc. acquired the hotel property crossing the ditch in 1999; trees, shrubs, footbridges, utilities, and other improvements have existed or were added in the easement area over time.
- In 2012 BHCC planted spruce trees and expanded landscaping near the ditch; Fox claimed the foliage and decorative items block access for his large maintenance equipment and deposit debris into the ditch.
- Fox sued in December 2015 asserting interference with his secondary ditch easement and seeking removal of vegetation and improvements; BHCC offered a settlement recognizing Fox’s easement, granting inspection access (with notice), and agreeing to use reasonable efforts to maintain the ditch—Fox did not accept.
- At non-jury trial the district court found Fox has established ditch and water rights but concluded BHCC did not unreasonably interfere given BHCC’s ongoing maintenance; the court imposed a duty on BHCC to continue reasonable maintenance and awarded BHCC attorney fees and costs under § 25-7-105, MCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BHCC’s planting and maintenance of trees/shrubs unreasonably interfered with Fox’s secondary ditch easement | Fox: foliage blocks access for large maintenance equipment and sheds debris, amounting to unreasonable interference | BHCC: historical obstructions predated its ownership; BHCC sufficiently maintains the ditch and access for inspection remains; large-equipment access has not occurred for years | Court: Not unreasonable — BHCC’s regular maintenance keeps ditch functioning; trees cause access issues but do not unreasonably interfere |
| Whether the court erred by imposing a duty on BHCC to clean and maintain the ditch | Fox: court should order removal of vegetation rather than shift maintenance duty to BHCC | BHCC: court properly accepted its on-record offer/judicial admission to continue maintaining the ditch | Court: Affirmed — accepted BHCC’s judicial admission and imposed duty to use reasonable efforts to maintain ditch; Fox retains inspection access |
| Whether Fox was entitled to damages for interference | Fox: damages for impaired maintenance and debris | BHCC: no unreasonable interference shown; maintenance performed prevents damages | Court: No damages — Fox failed to prove unreasonable interference |
| Whether the district court erred in awarding costs and fees to BHCC | Fox: objects to award | BHCC: made a settlement offer under §25-7-105, MCA that Fox did not accept; prevailing judgment was less favorable to Fox | Court: Affirmed — settlement offer was more favorable; under §25-7-105 Fox must pay costs and reasonable attorney’s fees incurred after the offer |
Key Cases Cited
- Engel v. Gampp, 993 P.2d 701 (2000) (secondary easement owner’s rights cannot be unreasonably interfered with)
- Cravath v. Ellingson, 124 P.3d 141 (2005) (servient owner may use land lawfully so long as use does not interfere with dominant tenement)
- Musselshell Ranch Co. v. Seidel-Joukova, 261 P.3d 570 (2011) (reasonableness of interference is a fact-specific question; dominant estate’s use must be reasonable and not unduly burden servient estate)