Mortensen v. Berian and Sturgis, 408 P.3d 45

Mortensens own a parcel downstream that received water via a long-standing ditch crossing property now owned by Sturgis, between Mortensens and Berian.
Berian (who had use rights to Sturgis’s parcel under an artwork-for-land agreement) filled in the ditch in Sept. 2014 after Sturgis gave permission; Mortensens later discovered the ditch had been filled and sued to have it reopened and for damages.
The district court found the ditch had existed for decades, had been used by the Mortensens (who hold Reid Canal Company stock), and was not abandoned or forfeited; aerial photos and witness testimony supported the finding.
The district court ordered the ditch reopened and awarded Mortensens $1,020 in repair costs; it found for Berian on his trespass counterclaim but awarded only $50 nominal damages.
Berian and Sturgis appealed the findings on abandonment/forfeiture and the adequacy of trespass damages and attorney fees; the Idaho Supreme Court affirmed and awarded Mortensens appellate attorney fees under Idaho Code § 12-121.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the ditch rights were abandoned or forfeited	Mortensens: ditch was not abandoned and remained in use	Berian/Sturgis: ditch had been abandoned/forfeited (Idaho Code § 42-222(2))	Court: No forfeiture (statute applies to water rights, not ditch rights); no abandonment—findings supported by substantial evidence
Whether aerial photos and testimony support existence/use of ditch	Mortensens: photos/witnesses show continuous existence and use	Berian/Sturgis: conflicting testimony shows ditch did not exist or was created later	Held: Trial court credibility findings sustained; substantial competent evidence supports existence and use
Proper damages for trespass and attorney fees under I.C. § 6-202	Berian: sought greater damages and attorney fees for trespass	Mortensens: trespass by Mortensen was limited; district court found Mortensens prevailing	Held: Nominal $50 damages appropriate based on record; no attorney fees because Mortensens were prevailing party on trespass and court did not abuse discretion in that determination
Whether appeal was frivolous such that appellee should receive fees	Mortensens: appeal re-weighs evidence and misapplies law; sought fees under I.C. § 12-121	Berian/Sturgis: challenged factual findings and damages	Held: Appeal improperly asked court to reweigh evidence; award of appellate attorney fees to Mortensens under I.C. § 12-121 affirmed

Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (recognizing ditch rights as property distinct from water rights)
Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (abandonment of ditch requires clear, unequivocal, decisive act)
Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 208 P. 241 (abandonment depends on intent and facts of each case)
Morgan v. New Sweden Irrigation Dist., 160 Idaho 47, 368 P.3d 990 (standards for appellate review of bench trial findings)
Borah v. McCandless, 147 Idaho 73, 205 P.3d 1209 (appellate review limited to whether evidence supports findings)
Cummings v. Stephens, 160 Idaho 847, 380 P.3d 168 (standards for awarding attorney fees and reviewing discretionary determinations)
Greenfield v. Wurmlinger, 158 Idaho 591, 349 P.3d 1182 (prevailing-party considerations and fee awards)
Enright v. Jonassen, 129 Idaho 694, 931 P.2d 1212 (review of damages findings: substantial and competent evidence rule)