No. 84-118 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1935 

E. E. EGGEBRECHT, INC., 

a Montana corp., 

Plaintiff and Respondent, 

OTIS S. WATERS, et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of McCone, 

The Honorable LeRoy McKinnon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Baxter Larson argued, Wolf Point, Montana 

For Respondent : 

Garden, McCann & Schuster; Gerard M. Schuster argued, 

Wolf Point, Montana 

Submitted: March 13, 1385 

Decided: August 8, 1985 

Filed: lggj 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a ludgment of the District 

Court, Seventh Judicial District, McCone County, quieting 

title to a parcel of land owned by E. E. Eggebrecht, Inc. 

("Eggebrecht"), plaintiff and respondent, and defeating a 

right of way for a reservoir site on that land held by Otis 

S. and Ardis Waters and Waters, Inc. ("Waters"), defendants 

and appellants. The land in question is situated in NE%, Sk, 

Section 12, T. 24 N., Rge. 49 E., M.P.M., McCone County, 

Montana. 

Eggebrecht bought this land in 1973 under a contract 

for deed. Waters own an adjacent parcel of land. In 1976, 

Waters rebuilt a dam on Wolf Creek, a small stream that 

bisects the two properties. The dam is located about 

two-thirds of a mile to the east of the boundary with 

Eggebrecht's land. The water backed by this dam is known as 

the Wolf Creek reservoir. On several occasions since 1978 

the water in the reservoir has covered a portion of 

Eggebrechtls farmland. Since the amount of water in the 

reservoir depends on both the extent of spring runoff and the 

amount of irrigation required on Waters' land, the number of 

Eggebrecht's acres flooded, as well as the length of time the 

water has stood on those acres, has varied from one year to 

the next. From 1978, the first year that water was backed 

onto Eggebrechtls land, to 1983, the year this lawsuit was 

filed, the maximum amount of Eggebrecht ' s farmland affected 

in any one year was twenty-five acres. Moreover, in no year 

was this land rendered completely unproductive. Eggebrecht 

was able to seed the affected acreage after the water receded, gathering, to be sure, considerably lower yields. In 
addition to causing decreased productivity on some of 

Eggebrecht's farmland, the water has at various times caused 

Eggebrecht great inconvenience in moving machinery to a 

particular field; he has at those times been forced to make 

either an eight mile detour or pass through a neighbor's 

cultivated field. 

The reservoir right of way that is the focus of this 

lawsuit was acquired by Waters' predecessor in interest 

pursuant to sections 18-21 of a March 3, 1891, Act of Congress entitled, "An act to repeal timber culture laws and for 

other purposes." 43 U.S.C., $5 946-949 (1982). Under this 

Act, canal companies and irrigation districts, formed for the 

purpose of irrigation and drainage, and having filed the 

necessary materials for the approval of the Secretary of the 

Interior, were granted a right of way on the public lands for 

the ground occupied by any ditch, canal, or reservoir they 

constructed. A map of the land so occupied was to be filed 

in the local land office and thereafter all lands burdened by 

such a right of way were to pass subject to the right of way. 

In this case the validity of the right of way acquired by 

Waters' predecessor in interest is not questioned by 

Eggebrecht and is not at issue. A copy of a map of the 

reservoir filed as an application under the Act, along with a 

copy of a letter from the Interior Department indicating that 

the reservoir had been constructed and the "easement" earned, 

was accepted by the District Court as evidence that the right 

of way had properly vested. We find no reason to hold 

otherwise. 

Upon initial review this case appeared straightforward. 

Waters and Eggebrecht agreed that the right of way for the 

reservoir site should properly he designated an easement by 
grant from the United States to Waters>redecessor in 

interest. They further agreed that the reservoir site had 

been used as a reservoir from 1910 (the year the first dam 

was built) to 1938 (the year the last dam washed out) , but 

that from 1938 to 1976 there was no dam and thus, obviously, 

no reservoir. At oral argument it was conceded that the 

issue presented was whether an easement by grant can be 

abandoned by non-user. 

We have discovered, however, in the course of our 

review of this case that there is a great deal of confusion 

over the nature of the reservoir right of way that was granted to Waters' predecessor in interest under the March 3, 

1891, Act in question. In Kern River Co. v. United States 

(1921), 257 U.S. 147, 152, 42 S.Ct. 60, 62, 66 L.Ed. 175, 

178, the Court stated, "The right of way intended by the Act 

was neither a mere easement nor a fee simple absolute, but a 

limited fee on an implied condition of reverter in the event 

the grantee ceased to use or retain the land for the purpose 

indicated in the act." Unfortunately, this obscured both the 

nature of the present interest held by the grantee and the 

future interest held by the grantor. 

With respect to the future interest, the use of the 

term "reverter" is clearly in error. Several cases have held 

that divestiture under the Act does not occur automatically 

upon failure to use or retain the land for the purpose stated 

in the Act, but must be d.etermined by a legal proceeding. 

Hurst et al. v. Idaho-Iowa Lateral and Reservoir Co. (Idaho 

1926), 246 P. 23; Hurst et al. v. Idaho-Iowa Lateral and 

Reservoir Co. (Idaho 1921), 202 P. 1068; Carns v. Idaho-Iowa 

Lateral and Reservoir Co. (Idaho 1921), 202 P. 1071; United 

States v. Whitney (1910), 176 F. 593. The Idaho Court in 
Hurst (192 1) compounded the terminological error in Kern 

River by characterizing the future interest retained by the 

United States as a possibility of reverter. However, a basic 

element of a possibility of reverter is that possession 

reverts automatically upon the occurrence of an event named 

in the granting instrument (in this case the Act of Congress) . American -- Law of Property, Vol. I, § 4.12; Boyer, 

Survey of --- the Law of Property, 3d.ed., p. 105. Since it has 

been held, even in the Hurst case, that there is no automatic 

reversion under the Act in question, it is clear that the 

United States did not retain a possibility of reverter. 

Rather, the United States granted to Waters' predecessor in 

interest a right of way in the reservoir site subject to the 

condition that it be used for the purpose indicated in the 

Act. Should it not be used for that purpose, then the United 

States can choose to exercise a right of re-entry or a power 

of termination, thereby causing a forfeiture of the right of 

way. 

We now turn to the nature of the present interest in 

the reservoir site held by Waters. When the United States 

Supreme Court in Kern River, supra, designated the present 

interest under the Act in question a "limited fee" it was 

relying on an earlier decision in Rio Grande Western Ry. Co. 

v. Stringham (1915), 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136. 

In Stringham the Court characterized a railroad right of way 

obtained under a 1875 Act of Congress as a "limited fee." 

239 U.S. at 47, 36 S.Ct. at 6, 60 L.Ed. at 138. The rationale for this characterization was later severely criticized 

by the Court in Great Northern Ry. Co. v. United States 

(1942), 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836. In that 

case the Court found that the railroad rights of way obtained 
under the 1875 Act should properly have been designated 

easements. It follows therefore that the designation in Kern 

River, that the reservoir right of way under the 1891 Act is 

a limited fee, rests on a shakey legal foundation. An 

analysis of the limited fee/easement distinction as it 

pertains to a reservoir right of way under the 1891 Act is 

contained in United States v. Big Horn Land and Cattle Co. 

(8th Cir. 1927), 17 F.2d 357. In that case it was emphasized 

that a fee interest may be had in an easement. "We think, 

it, therefore, not important whether interest or estate 

passed be considered an easement or a limited fee. In any 

event it is a limited fee in the nature of an easement." Big 

--- Horn Land and Cattle - Co., 17 F. 2d at 365. We agree. Kern 

River introduced unnecessary terminological confusion. 

Therefore, we hold that, despite Kern River, there is no 

useful distinction to be made between a limited fee and an 

easement when describing the nature of a reservoir right of 

way granted under the 1891 Act. 

Since the reservoir right of way in question can safely 

he characterized as an easement, we turn to the question of 

whether the lower court erred when it determined that said 

right of way had been abandoned. The rule in Montana is that 

in order to constitute an abandonment an intent to abandon is 

necessary. Hilyard v. Engel (1949) , 123 Mont. 20, 209 P.2d 

895; Conway v. Fabian (1939), 108 Mont. 287, 89 P.2d 1022; 

Rodda v. Best (1923), 68 Mont. 205, 217 P. 669; Moore v. 

Sherman (1916), 52 Mont. 542, 159 P. 966. Certainly, Waters 

never communicated by word an intent to abandon the reservoir 

right of way. Further, and contrary to the claim of 

Eggebrecht, mere non-use of an easement by grant, no matter 

how long continued, does not constitute abandonment. City of 
Billings v. O.B. Lee Co. (1975), 168 Mont. 264, 542 P.2d 97. 

The mere fact that from 1938 to 1976 no dam was in place with 

which to back water onto the reservoir site does not constitute abandonment of the reservoir right of way. Whether 38 

years of non-use constitutes grounds for forfeiture under the 

Act is a question that can be raised only by the United 

States and not by the patentees and their successors. 

Wiltbank v. Lyman Water Company (Ariz. 1970), 477 P.2d 771. 

The judgment of the District Court is reversed. 

We concur: 

Justices 

District Judge, sitting in place 

of Mr. Justice L. C. Gulbrandson 
Mr. Justice Fred J. Weber dissents as follows: 

I respectfully dissent from the basic conclusion of the 

majority opinion that the question of non-use of the 

reservoir site can he raised only by the United States and 

not by the patentees and their successors in interest. I 

conclude that the successor in interest to the patentee from 

the United States has the capacity to raise the question of 

non-use . 

In concluding that it is only the United States which 

can seek a forfeiture, the majority opinion relies upon 

Wiltbank v. Lyman Water Company (Ariz.Ct.App. 1970), 477 P.2d 

771. There are significant differences between the Wiltbank 

facts and those in the present case. In Wiltbank, the United 

States government simultaneously granted reservoir rights and 

the right to enough water to fill the reservoir to its 

maximum height and to keep it filled if possible. The issues 

in Wiltbank included both the reservoir site and the right to 

the water to fill the reservoir. The Arizona court concluded 

that it would be absurd to allow a reservoir reversion to the 

federal government and not include the water rights to fill 

it. The court further concluded that the reservoir and the 

necessary water rights both made up the limited fee which was 

retained by the United States and not granted to the 

patentee. Based upon that conclusion, the Arizona court held 

that any forfeiture or abandonment is strictly an issue 

between the limited fee holder and the United States as the 

grantor with reverter rights. I do not find Wiltbank to be 

persuasive authority in the present case which deals only 

with a reservoir site and no question has been raised as to 

the right to the use of water itself. 

I would adopt the rationale used by the Idaho Supreme 

Court in Hurst v. Idaho-Iowa Lateral & Reservoir Co. (Idaho 
1921), 202 P. 1.068. In Hurst the appellants claimed an 

easement in land for a canal and reservoir granted under the 

same act of Congress of March 3, 1891, described in our own 

case. In Hurst the respondent as the owners of the land upon 

which the reservoir was located, sought a declaration by the 

Idaho court that the easement in the lands had been forfeited 

and abandoned. In granting a new trial, the Idaho Supreme 

Court referred to the contention that only the United States 

may act: 

"The contention is made that only the United States 

can take advantage of forfeiture, and that if 

appellant failed to use its reservoir site for the 

purposes of the grant, private parties like 

respondents cannot quiet title in th~ absence of 

any action by the United States . . ..This is the 

only question which we deem it necessary to 

consider on this appeal." Hurst, 202 P. at 1069. 

The Idaho Supreme Court concluded that the disposition by 

patent carried all of the interest of the United States in 

the land, including the right to declare a reversion, 

stating: 

"We think it was the intention of Congress in 

making provision for the disposition of public 

lands, over which rights of way for reservoirs and 

canals have been granted subject to such rights of 

way, that such disposition should carry with it all 

the interest of the United States in the land, 

including the reversion in case of breach of 

conditions subsequent or in case of abandonment. 

The natural construction of the language of the 

statute leads to this conclusion. No sufficient 

reason is suggested which requires a different 

construction. It is the policy of the United 

States to make final disposition of its lands and 

subject them to the jurisdiction of the states in 

which they are situated, unless some public 

interest requires a continuation of governmental 

control." Hurst. 202 P. at 1070. 

7: approve the foregoing analysis. There is nothing in the 

federal statutes or regulations which supports the majority 

conclusion that the right of reversion was to remain vested 

in the United States. There is no intention to reserve in 

the patent from the United States. There is no public policy 
suggested in the present case which makes a reservation 

appropriate. 

I would therefore conclude that as a result of the 

issuance of the United States patent, the patentee and his 

successors in interest have succeeded to the right to claim a 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

I respectfully dissent to the majority opinion. 

First, I believe the Court has erred in its treatment of 

the reversion issue. The majority states: 

"In Kern River Co. v. United States (192, 257 

U.S. 147, 152, 42 S.Ct. 60, 62, 66 L.Ed. 175, 178, 

the Court stated, 'The right of way intended by the 

Act was neither a mere easement nor a fee simple 

absolute, but a limited fee on an implied condition 

of reverter i.n the event the grantee ceased to use 

or retain the land for the purpose indicated in the 

act. "' 

Thus, in 1921, the United States Supreme Court held that 

the grant here in question was subject to a reversionary 

interest and in the event the grantee ceased to use the land 

for reservoir purposes, the reversion would occur. The 

effect here would be that predecessors in interest to Waters, 

when they ceased to use the land for reservoir purposes, 

triggered the reversion, automatically reinvesting the fee 

in Eggebrecht's predecessors. Of course, this would require 

affirming the district court judgment in favor of Eggebrecht. 

To avoid this result the majority has treated the reversion 

as a condition subsequent requiring reentry for purposes of 

effectuating a forfeiture. Since Eggebrechts did not reenter 

and effectuate a forfeiture, under the majority rationale, 

they failed. 

Let us examine the means used to reach a reversal. This 

Court has disagreed with the decision of the United States 

Supreme Court in Kern River Co. v. United States, supra. The 

majority opinion states: 

"With respect to the future interest, the use of 

the term 'reverter' is clearly in error. Severa 1 

cases have held that divestiture under the Act does 

not occur automatically upon failure to use or 

retain the land for the purpose stated in the Act, 

but must be determined by a legal proceeding. 

Hurst et al. v. Idaho-Iowa Lateral and Reservoir 

Co. (Idaho 1926), 246 P.23; Hurst et al. v. 

Idaho-Iowa Lateral and Reservoir Co. (Idaho 1921) , 202 P. 1068; Carns v. Idaho-Iowa Lateral and 
Reservoir Co. (Idaho 1921), 202 P. 1-071; United 

States v. Whitney (1910), 176 F. 593 . . ." 

We must bear in mind that the United States Supreme 

Court was interpreting a federal law in the Kern River case 

and its decision is not subject to question by the several 

states. Furthermore, most of the authorities cited predate 

the Kern River decision. 

In this case the United States had a reversionary 

interest in the subject real property. When the United 

States patented this real estate to Eggebrecht's 

predecessors, they received all elements of fee simple title 

including the reversionary interest in the dominant estate. 

Therefore, when the reservoir ceased to be used for reservoir 

purposes, title reverted to the Eggebrechts. 

Assuming arguendo that title remained in the Waters' 

predecessors subject to a right of reentry for condition 

broken, nevertheless abandonment could have occurred. That 

is precisely what the trial court found. Our only function 

is to determine whether there is substantial credible 

evidence in the record to support the finding of the trial 

court. 

The majority opinion holds that: "Mere non-use of an 

easement by grant, no matter how long continued, does not 

constitute abandonment." There is old Montana law to support 

that statement but the trend of decisions has been to treat 

non-use as some evidence of abandonment. In 79 F.anch, Inc. 

v. Pitsch (1983), 666 P.2d 215, 40 St.Rep. 981, we held 

evidence of extended non use created a rebuttable presumption 

of abandonment: 

"The District Court found that the water 

rights claimed by Pitsch and 79 Ranch had 

been abandoned because the water had not 

been used for at least forty, and perhaps 

as many as sixty successive years. 

Pitsch and 79 Ranch argue that the mere 
showing of nonuse even for a long period 

of time, is not sufficient to support a 

finding of abandonment. We disagree. 

"Abandonment of a water right is a question of fact. Section 89-802, Revised 

Codes of Montana, 1947, (applicable hero, 

repealed - in 1973). Our scope - of review 

is therefore limited to determining 

whether there is sufficient evidence to 

support the District Court's findings. 

Bagnell v. Lemery (1983), Mont . , 657 P.2d 608, 40 St.Rep. 58. Forty 

years of nonuse is strong evidence -- of an 

intentto - abandona - water right, and, - - in 

effect, raises - a rebuttable presumption 

- of abandonment. Because Pitsch and 79 

Ranch have failed to rebut this presumption, the District Court's finding must 

be affirmed. " (Emphasis added) 

Although we are not dealing with a water right but 

rather with a limited fee, it would seem analogous. Although 

I do not think we need to decide the question of abandonment, 

there is sufficient evidence in the record to support the 

finding of the trial court in this respect which provides 

further basis for affirmance. 

In summary, I would affirm the decision of the trial 

judge .