*1 436 DUCHAM,
LEO J. VERNA M. DUCHAM and
LENORA E. HYLAND, Appellants, ROBERT L. TUMA and TUMA, PHYLLIS A. Respondents.
Defendants
No. 93-534.
Submitted on Briefs March
1994.
Rehearing
July
Denied
1994.
July
Decided
1994.
St.Rep.
51
For Astle, Kalispell. David L. Respondents: For Opinion the of the Court. JUSTICE GRAY delivered by the Twentieth Judicial case, judgment issued In this we review request for a Court, County, denying Sanders across discharge of water stop Defendants’ their We reverse. adjoining (Hyland) purchased Hyland
In and Lenora each other the Trout north and south of tracts of located drainage County. agricultural Creek Sanders She used the land for cattle, swale, raising sheep hay. depres- and A purposes, or shallow sion, crossed two tracts the northeast the southwest. 1963, Hyland pond
In a small stock on straddling built swale pond originally solely by spring the northern tract. The fed was run-off; Hyland seepage irrigation diverted from an ditch to fill pond She purchased property sold two tracts 1975 and directly to the west the southern The tract. swale crosses southeast corner of this ownership
After intervening of the northern and tracts southern individuals, purchased by those tracts were parties (the Turnas) Phyllis this action. Robert and Turna purchased the containing northern tract pond the stock in 1986 constructed a trout uphill pond. year, swale from the stock The next they reconfigured irrigation ditch, the diversion mechanism at the using a pipe four-inch to conduct water to the trout pond. Leo (the Duchams) Verna Ducham the southern tract in 1988. August Duchams and (collectively referred Plaintiffs) to as a complaint asserting filed that the water diverted by the to supply Turnas the trout being discharged was across They via alleged the swale. Turnas’ of water constituted a continuing trespass and interfered with the Duchams’ cultivation of on crops the southern tract. sought temporary injunction during pendency permanent injunction
the action and a discharge of water. Following a show hearing August cause the District Court declined temporary injunction to issue a but admonished the Turnas decrease the of water to the minimum amount required to maintain the pond. trout In response, the Turnas reduced the opening one-inch, of the four-inch pipe presumably diversion reducing amount of water diverted into trout discharged down the swale.
Following a nonjury trial on June the District Court declined to grant permanent injunction. Plaintiffs a found court that water from the Turnas’ trout pond flowed across Plaintiffs’ property via swale and that the no express Turnas had easement *4 or right-of-way condemned for discharge water. The court injunction, however, concluded that Plaintiffs not were entitled to an 1) they proven legal because had not that the Turnas had breached a duty regard discharge water; to negligent were manner; engaged or had or grant unlawful conduct. The 440 injunction within the of the district court of an discretion
denial absent an abuse of that discretion. Gabriel and will not be reversed 42, (1993), 261 Mont. 862 P.2d v. Wood side-stepped disposi- Court Plaintiffs assert that legal right to whether the Tamas had a tive issue before to trespass the swale that would defeat their water down basis, arguments raise chal- property claim. On that two real of law. lenging the court’s conclusions They argue erroneously first that the court entered conclu legal on the irrelevant issues the Turnas’ breach of sions law negligence. agree. negligence regard The Turnas’ duty We explicitly implicitly or raised of water was not and, thus, court. simply or at trial was not before the Pretrial Order M.R.Civ.P.; (1993), 16(e), v. 259 Rule Zimmerman Robertson See (1992), 111, 338, 342; 105, Nentwig Industry v. United Mont. 854 P.2d 134, 99, entry 139, P.2d The court’s of extra 256 Mont. 845 102-03. however, law, affect the conclusions of did not substantial neous is, therefore, harmless error. See rights parties of the Woolf 782, 51 (1994), 480], 777, St.Rep. [264 Mont. 872 P.2d Evans that argument concerns the court’s conclusion Plaintiffs’ second unlawful as a to real the Turnas’ conduct was right dis legal the Turnas’ the court’s failure ascertain Given water, is erroneous charge argue the conclusion legal a district court’s conclusion matter law. Our review of 474-75, Steer, 470, Dep’t Inc. v. Revenue plenary. 601, 603-04. adopted the elements ofthe tort ofintentional Wehave (Second) Torts, 158: set in the Restatement § forth trespass, subject liability irrespective One is to another interest thereby any legally protected causes harm to whether he (a) other, intentionally possession if he enters land in (b) other, so, to do or remains on thing person or causes a or third (c) thing which he is land, from the land a or fails remove duty under to remove. Supper v. Beaumont Club
Branstetter
added).
context,
“intent”
In this
(emphasis
P.2d
consequences
if the actor desires to cause
requirement is satisfied
substantially certain
consequences
its
the act
believes that
or
Branstetter,
That after Defendants Turna pond by constructed a fish on their property diverting water from running through the Green Mountain Ditch and it pond, the fish original pond Hyland, then onto the created then on to the swale.
It is clear that the Turnas desired overflow pond from the trout to and, dispersed surely downhill, be via the swale as water runs Thus, cross Plaintiffs’ all elements an intentional are met in the case before us. Conduct which otherwise would constitute an intentional trespass is not unlawful if is privileged pursuant conduct (Second) Torts, easement. Montana, Restatement 188. In § ease by grant, reservation, ments are covenant, created exception or implication or prescription. Kuhlman v.Rivera agreed 701 P.2d 985. The Turnas in the Pretrial Order that an easement had not express grant; been created nor did attempt at trial to type establish right easement water across Plaintiffs’ defense,
As their sole argued the Turnas that Plaintiffs were equitably estopped asserting from to real property claim. defense, support of this the Turnas offered evidence pond construction of the stock in 1963 and their reliance on ability continuing to divert water into the stock it via the swale when purchasing the northern tract. findings relating
The District Court made equitable the Turnas’ defense, estoppel determining originally diverted water irrigation ditch to create the stock and that the Turnas relied the continuing on existence ofthe stock when purchasing the northern tract. The court did enter conclusions law on the issue.
Equitable only is not be estoppel favored will sustained upon convincing Dagel City clear and evidence. Falls Great Six essential elements necessary equitable estoppel apply:
1) conduct, acts, language estopped There must be or silence facts; party amounting representation to a or concealment of 2) at time of estopped party these facts must be known conduct, must be such that or at least the circumstances party; knowledge necessarily imputed estopped to the of them the other concerning must be unknown to the truth these facts they were claiming estoppel the benefit at the time party upon; acted intention, or least with the must be done with the at conduct or under upon by party, it will the other
expectation, that be acted probable that it will that it natural and the circumstances is both acted upon; *6 upon party; the must relied the other conduct be it in such a manner as to party upon must fact act other party’s position for the worse. change Dagel, P.2d at 192-93. or representation make a
It is clear that Plaintiffs did not satisfy equitable element of of fact which would the first concealment not purchased persons northern tract from estoppel. The Turnas suit; played they in this do not contend that either involved Thus, position in a a Plaintiffs were not role that transaction. — concealment of fact when representation nor did make a or the Turnas “repre contention that the
There also is no merit to the Turnas’ by Hyland’s construction sentation of fact” element satisfied These actions pond. in 1963 use of that subsequent stock fact; they existing facts which are Hyland representations not Nor, Hyland the Turnas. as representations cannot be construed observe, and use of stock Hyland’s we does construction filling construction and necessarily any way the Turnas’later relate Plaintiffs are We conclude that of the trout at issue this action. asserting claim. equitably estopped not Thus, that Plaintiffs established on the basis of our conclusions applicable estoppel is not property equitable and that concluding that here, erred in we also conclude that the District Court matter, we must a final Turnas’ not unlawful. As conduct was injunction whether Plaintiffs are entitled to a determine discharge Turnas’ of water across their that appears “when appropriate An injury’ ‘irreparable produce of an act will commission or continuance Highways (1993), Dep’t v. such relief.” Curran party seeking single of a act 544, 545. commission 105, 107, 852 P.2d 258 Mont. physically which is property, destructive the affected either or in the character in which it has or in an enjoyed, irrepa been held can result L injury. Lodge rable Madison Fork Ranch v. & B Pole Timber 292, 302, 615 P.2d A continuing property invasion rights irreparable relief, also an injury; injunctive constitutes absent injured party bring multiplicity would forced to at law in actions compensated injury. Floyd order to be for the ongoing City See Butte 305, 313, Leo Ducham testified that he could not with cross the swale equipment farm because of the discharge Turnas’ water across his property, specifically recounting incidents which a tractor small and a fertilizer spreader became stuck in the swale. Because he could directly cross the side, swale to reach his on the other historically done, had been Ducham that he indicated was forced county to use that road skirted his crossed the swale testimony via a culvert. The supports position discharge Turnas’ of water agricultural interfered with the use southern tract.
Ducham hay also testified that he was unable to the swale in addition, and 1992 because water. Hyland’s testimony indicated that water flowed in the swale across her property throughout year each following the Turnas’ construction Thus, of the trout pond. of water constituted a continu- ing invasion of the Duchams’ and property rights. Absent equitable relief, injunctive Duchams and have would no *7 adequate remedy at law and an would forced to institute action for damages against the Turnas on an precisely annual basis. These are the kinds of equity circumstances in which of courts should intervene.
We hold that the denying District Court abused its discretion request for a permanent injunction. We remand for of entry permanent injunction a in Plaintiffs’ favor and for further proceedings on the issue of whether Plaintiffs have dam- sustained and, so, ages if the extent damages. of those Reversed remanded. HARRISON,
JUSTICES TRIEWEILER and concur. NELSON JUSTICE WEBER dissents as follows: I majority opinion dissent from the its judgment reversal of the denying injunction District Court plaintiffs’ defendants’ water across land. Judgment Fact, of Law and Findings In the Conclusions July 22, 1993, included the the District Court District Court dated following key findings of fact: discharging from Turnas’ fish follows
16. That water property, the Duchams’ the natural draw and flows across and onto Wilson’s by Plaintiff which onto land owned That water flows Hyland onto land originally Ducham was diverted she owned. which herself discharging water from their prior
18. That times Turnas year, the Ducham draw flowed pond, during Spring fish melt and rain Spring This water flowed as result snow water. Typically from the Green Mountain ditch. fall and water June, by July during the month of dry up Ducham draw would construc- passable haying equipment. Since the the draw was with through the draw pond, the water tion of Defendants’ fish flow of increased, quan- establish may have but the failed any decrease is evidence material tum increase. There no hay production property available in the amount of Plaintiffs’ usage been caused in its traditional which has Defendants. (Emphasis supplied.) findings led the District Court foregoing are the which
The majority The has appropriate. was not conclude that determination fact the District Court. not addressed this down this draw findings establish that the water flowed above fall, from the Green melt, rain water spring as a result of snow pond by ditch, originally diverted from the and water Mountain runs argument that some water plaintiff Hyland. While there no pond, fish the District Court the draw from defendants’ down quantum establish pointed plaintiffs out that the had failed to manner, plaintiffs a similar in the normal flow. In any increase in the amount of present material decrease failed to evidence of hay production. I conclude there sub- available for part of the support foregoing findings on the evidence to stantial injunction. I affirm the denial Court. would therefore foregoing dissent. TURNAGE concurs CHIEF JUSTICE foregoing dissent. concurs JUSTICE HUNT