*1 HAROLD MILDENBERGER and
MARILYN MILDENBERGER, Respondents, husband and wife, Plaintiffs and v.
JOSEPH GALBRAITH and DENISE
GALBRAITH, husband and wife, Appellants.
Defendants and
No. 90-397.
May
Submitted
1991.
July 1,
Decided
David appellants. defendants and Greef, Hamilton, respondent. plaintiffs D. for
John Gen., Gen., Harris, Atty. Racicot, Atty. Harley R. Asst. Marc Helena, Resources, Counsel, for Hall, of Natural Legal Dept, Tim D. curiae. amicus Opinion Court. HARRISON delivered
JUSTICE judg- appeal from Denise Galbraith Appellants, Joseph and District, Ravalli of the Fourth Judicial the District Court ment of Mildenberger Marilyn Montana, holding Harold and County, appellants’ proper- have September priority date ty and a stockwater arising on lands third by We affirm party. in part and reverse part.
There are two presented issues for review: 1.Did the District Court err in that the finding Mildenbergers have with a date? priority 2. Did the District Court err in
a prescriptive easement in the water ditch on the Galbraiths’property? adjacent the Galbraiths are landowners in Ravalli County. The Galbraiths own real Sections North, Township West, P.M.M., Range Ravalli County. The Mildenbergers own real property north of the Galbraiths’ also I, Letters on the illustrated will following map, referred this throughout opinion. *3 half of are located the west naturally occurring springs on Several A) question the water surfaces. from where (point Trulock, are not by Ron and Janet who owned property springs from the flows litigation. arising in this Water parties passing in an channel onto northwesterly direction point B. The water continues to flow property at Galbraiths’ property past points system in the ditch on the Galbraiths’ northward Hedge F H where the water enters the Canal point C and Mildenbergers’ property point at I. finally flows on to the springs property, A the Trulock there point In addition to the at on E. springs property at Point are also located the Newman-Kem merges springs flows arising The water from these northward gave point The of the ditch that disputed portion ditch at F. with the litigation C and F. rise to this lies between system the Galbraiths’ question developed The ditch prior sometime Daly, irrigation purposes, Marcus for predecessor, year-around used through the ditch and was 1927. Water flowed irrigation during for the summer predecessors ap- the winter months. Since during months and stockwater predecessors and their proximately Hedge entering Canal property used the water stockwater. A) 1930’s, springs (point were
In the some of the on Section convey Department Fish in order developed by the State and Game (shown hatchery map). Spring water diverted water to a fish Hedge Canal, system and the hatchery bypasses fish the ditch Mildenberger is never available for use on the consequently, springs development indicated that first developed spring flowing 9 that located on Section resulted until the did not occur the ditch on the Galbraiths’ mid-1960’s. (north in Section property I) March, 1962, April, until from point *4 October, 1973, it since that
They it in and have owned reacquired by Mahoney April, from property The was owned Dr. Jack time. October, proper- Trulock Mahoney also owned the current to 1973. Dr. A) period. during the same ty (point approximately in Section 1973, to the April, Mahoney property in Section 9 Dr. sold the conveyed Larry McCrossin property to Mildenbergers, who then August, are the current ofthis Ron Janet Trulock owners testimony during ownership property, The shows that of the his Mahoney a dragline develop Dr. used to clear the channel from spring point edge property point of the at B. He enlarged existing pond also and drained water this land off pond into the The also that Dr. channel. shows Mahoney’s purposes in were developing springs these to benefit land in provide 5; Section 9 and stockwater for land in his parcel currently by same Mildenbergers.
Larry developed McCrossin testified that he had further springs in Section 9 rights and had filed water on the water from developed during these springs ownership his be- tween 1973 and 1980.
In the fall of the Galbraiths retained the services of a local attorney to examine the State determine records and whether there were rights claimed water portion of points between C and F. rights There were no on record and, fact, once advised counsel of this proceeded the Galbraiths fill in the ditch points F, between C and and divert the flow of water point D. Galbraith testified part plan improve that his property, he up wished clean and fill in the C ditch between F. 8,1988, and On December in improv- due to the Galbraiths’ efforts ing had point northward flow of water from C completely stopped. demanded reopen Galbraiths they so, ditch and when do this refused to litigation ensued.
A non-jury judgment trial was held on March entered in favor they Mildenbergers, finding prescrip- tive easement in the disputed irrigation ditch property, and a stockwater in the amount of 200 miner’s inches with a priority of September 1927, groundwater arising date land owned Ron and Janet Court Trulock. District held that statutory filing the Mildenbergers from the exempt were requirements of the Montana Act awarded the Mil- Water Use denbergers attorney’s damages $100, sum their reasonable fees, and court costs. The appeal. Galbraiths first issue is whether the District Court erred the of 200 have an in the amount miner’s inches priority with 1927 date. *5 issue, it to getting
Without into the merits of this will suffice injunctive say “may grant that the District Court or other relief which necessary rights the status appropriate preserve property is and quo the issuance of the final decree. 85-2- pending a 406(2), The the to issue final jurisdiction MCA. District Court lacks regard right. the decree with water jurisdiction rights determine interpret and water 3-7-501, exclusively MCA. rests with the water courts. Section judgment question then becomes whether the District Court’s 85-2-406(2), “necessary required and in MCA. appropriate” § as any support ofthe record indicates an absence of evidence to review had a Mildenbergers the District Court’s determination that the right the Such a final ad- water in amount of 200 miner’s inches. court, judication not right of a water is the function of the water and the District Court. judgment respect Mildenbergers’ right water
amount of 200 miner’s inches is therefore vacated. appeal issue the District Court erred
The second
on
whether
right by prescriptive
easement
Mildenbergers
the
rights
rights
previously
This Court has
held that ditch
(1936),
separate
property rights. Connolly
are
v. Harrel
distinct
Therefore,
of whether
In easement a show order establish exclusive, adverse, uninter open notorious, continuous and years. statutory period of five rupted use the easement for the (1983), P.2d 1025. The Higbee Morrison v. 204 Mont. any Mildenbergers present have failed argue Galbraiths adverse, use of the ditch open evidence of an and notorious question. merely
It is the Galbraiths’ contention upon use of the water that entered made unconsumed They through ditch. flowing Canal Hedge via the after use, nor notorious argue amount to that such use does not Mildenbergers that can be has there been other actions disagree. construed adverse or hostile. We be hostile and adverse, To be the use of claimed 541 P.2d Stenberg 168 Mont. not Ewan v. permissive. fact that neither Testimony established the clearly at trial predecessors permission nor their ever asked mid-1960’s, Mildenbergers’ anyone to use the ditch. In the interest, Mahoney, predecessor Dr. increased the of water flow purpose use of through express increasing the ditch for property currently by Mildenbergers. At no he seek his permission did to run the ditch. may presumed use whenever there unex Adverse has been plained five-year statutory ofthe alleged period. may presumption This be overcome evidence that use was *6 (Mont. 1991), 518,] permissive. Harding [247 Keebler v. 807 Mont. St.Rep. P.2d 283. The failed Galbraiths have produce any fact, evidence to show a of In permissive use the ditch. Martinson, interest, Berna the predecessor testified at Mildenbergers’ trial the that use never permissive. was argue The Galbraiths also failed to open establish an It long notorious use. has been established that possession an and notorious is such it will give that the owner property right of the “either knowledge claim, actual theof hostile or [be] a of such character as to a presumption notice, [be] raise of or so patent the (1918), that owner could not be deceived.” Collins v. Thode 405, 411-412, Mont. 170 P. undisputed testimony of Berna Martinson establishes suffi- cient evidence that the knowledge servient estate owner had of the Mildenbergers’ claim in the ditch:
“[Historically always [the ditch] way everybody had rim that respected the goes, always fact that’s where the water ... we knew that went, that’s where the and we respected rights.” that argue
The Galbraiths physically never entered on the any therefore have not made asserted physical hostile the interests of the Galbraiths. However, presence merely knowledge part evidence used show on the sufficient servient estate owner. There is other evidence support finding knowledge record to part on the ofthe Galbraiths or their predecessors. findings
The District Court’s
will not
set aside
be
when based
upon
Downing
substantial credible evidence.
v. Grover
We vacate District Court’s of water inches, finding of of 200 miner’s and affirm its amount by prescription. HUNT,
CHIEF JUSTICE TURNAGE JUSTICES TRIEWEILER, McDONOUGH and WEBER concur. concurring. specially
JUSTICE GRAY portion majority opinion addressing I in that of the concur ority by maj regard right. I concur result reached easement in the ditch. analysis testimony from that ofthe My of certain differs somewhat majority. majority testimony characterizes the of Berna Martin- son, Galbraiths, “the predecessor showing as Mildenbergers’ permissive.” use I read Ms. Martinson’s was never me testimony differently. appear It not that either her tes- does testimony or evidence establishes whether timony or other Indeed, Ms. permissive nonpermissive inception. its begin regarding the ditch more than twen- Martinson’s recollections ty-five years Mildenbergers’ after the initial use of the ditch predecessors. to meet the “adverse” Martinson’s does suffice
Ms. showing “rights” however. She testified that required, recognized at least Mildenbergers’ predecessors to use the ditch were mid-1950s, ofher earliest firm recollection early as the the ditch. As this Court has stated: adverse, [of exercised alleged easement] the use be
“To *7 privilege a mere license revocable under a claim of and not as ; claim be known pleasure right] [of of the owner ... such to, acquiesced by, the owner. ...” P.2d
Taylor v. Petranek Thus, single positive distinct and assertion while we do not have a ditch, Martinson’s indicates a claim of to use the Ms. exist, in, at least acquiesced was known to that a claim testimony provides sufficient evidence early as 1955. This finding that the of the ditch was support the District Court’s “adverse.”