No. 91-072 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

OWEN D. BUTLER and EIWA D. BUTLER, 

Plaintiffs and Respondents, 

-vsJOHN V. GERMANN and BARBARA A. GERMANN, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli. 

The Honorable ~ou~la; G. Harkin, ' Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David L. Pengelly; Knight, Maclay & Masar, Missoula, 

Montana 

For Respondent: 

Jeffrey H. Langton, Hamilton, Montana 

Filed 

Submitted on Briefs: June 28, 1991 

ilt;!; J I' 3991 Decided: December 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Owen and Erna Butler sought an injunction requiring John and 

Barbara Germann to repair damage to an irrigation ditch that runs 

through the Germanns' property before delivering water to the 

Butler's property. The District Court for the Fourth Judicial 

District in Ravalli County issued a preliminary injunction, and 

after a hearing, issued a permanent injunction, together with an 

award of damages, costs, and attorney's fees. The Germanns appeal. 

We affirm. 

The issues are: 

1. Did the District Court err in ordering the Germanns to 

repair the ditch? 

2. Did the District Court err in permanently enjoining the 

Germanns from obstructing, encroaching upon, disturbing, or 

otherwise impairing the Butlers' ditch easement? 

3. Did the District Court err in awarding the Butlers $2000 

as damages? 

4. Did the District Court err in awarding the Butlers 

attorney's fees and costs incurred subsequent to the preliminary 

injunction? 

The Butlers and the Germanns own adjacent tracts of land in 

Ravalli County. Both have appurtenant water rights. The Waddell 

Ditch, which flows northward through the Germanns' property onto 

the Butlers' property, supplies the water rights of both parties. 

The Butlers have historically irrigated their property by 

temporarily damming the Waddell Ditch. This caused water to back 
up in the ditch and then overflow the downslope bank of the ditch, 

irrigating their land in a sheet or flood. Topographical factors 

make this the most efficient means of irrigating the land in 

question. 

The Germanns moved onto their property in March 1988. Without 

consulting the Butlers, John Germann attemptedto change the course 

and flow rate of the ditch on his property by digging it deeper and 

cleaning out sediment. He also bladed off from 12 to 18 inches of 

the downslope bank and used the dirt as fill in his barnyard. 

On June 28, 1989, the Butlers filed a complaint and requested 

a preliminary injunction to restrain the Germanns from interfering 

with the ditch. The Butlers alleged that the Germanns' 

modification of the ditch had reduced the water level in the ditch 

so far that the Butlers could no longer use it for sheet 

irrigation. They also claimed damages for a hay crop lost because 

of insufficient irrigation. The Germanns counterclaimed for 

damages allegedly due to flooding from the direction of the 

Butlers' property. 

After a hearing on June 28, 1989, the District Court granted 

a preliminary injunction ordering the Germanns to raise the banks 

of the ditch to allow sheet irrigation of the Butler property. The 

court appointed Fourth Judicial District Water Commissioner Thomas 

Gale as special master to monitor the Germanns' repairs to the 

ditch. 

Gale was satisfied with the adequacy of the Germanns' repair 

efforts. The Butlers, however, were not. At the permanent 
injunction hearing, they presented expert testimony that although 

the repairs had restored the flow in the Waddell Ditch to the 

Butler property, the repaired ditch banks were leaky and unstable. 

The District Court entered judgment for the Butlers. It 

ordered the Germanns to raise the ditch banks to a uniform height 

throughout their property and then line the repaired ditch with 

bentonite. The court also permanently enjoined the Germanns from 

further interference with the ditch, awarded $2000 in damages to 

the Butlers, and denied the Germanns' counterclaim. The court then 

directed the Germanns to pay the Butlers' costs and attorney's 

fees . 

I 

Did the District Court err in ordering the Germanns to repair 

the ditch? 

The fundamental purpose of any remedy is to return the 

plaintiff to his or her rightful position, "the position or state 

the party would have attained had the [wrong] not occurred." See 

generally Billings Chitic v. Peat Manvick Main & Co. ( 19 9 0 ) , 2 4 4 Mont . 3 2 4 , 3 4 5, 

797 P. 2d 899, 913. The Germanns rely on this principle in accusing 

the District Court of "overkill." They suggest that the District 

Court was without power to require them to do more than restore the 

banks of the ditch to their former height, and they conclude that 

the District Court's judgment will compel them to provide the 

Butlers with a much better ditch than they had before. 
We disagree. The mere restoration of the height of the ditch 

banks to their former level did not restore the ditch to its former 

integrity. That much was clear from all the evidence that was 

offered. 

John Germann testified that in May 1990, after he partially 

restored the lower ditch banks in compliance with the District 

Court's preliminary injunction, the downslope bank of the ditch 

washed out close to the Butlers1 fence. He admitted that he had 

not sufficiently compacted the material with which he restored the 

bank and that this caused the washout. He also admitted that there 

was potential for further washouts throughout his property for the 

same reason. 

Stanton Cooper, the general manager of the Butler property, 

testified that he was not satisfied with the Germannsl partial 

repairs. He watched John Germann pile dirt back onto the downslope 

bank of the ditch. He testified that Germann used only a very thin 

layer of dirt and that water continued to seep through it, and that 

the seepage would continue unless the Germanns sealed the ditch. 

It was his personal opinion that at the time of trial the 

partially repaired banks were insufficiently stable to hold the 

significant surges of natural runoff which could be expected to 

flow through the ditch during certain seasons of the year. He 

testified that the banks, as they existed at the time of trial, 

would soften, allow further seepage, and eventually wash out. 

Specifically, he did not believe that in the long run the partially 

repaired banks were stable enough to hold water in the fashion that 

5 
was necessary for the Butlers to continue their historical practice 

of sheet irrigation. 

Darwin ~iteca, the Butlers' lessee, agreed that the Germanns' 

repairs were inadequate. He was familiar with the Waddell Ditch as 

it existed on the Germann property before the Germanns disturbed it 

in 1989. He testified that the partially repaired lower banks of 

the ditch were 12 to 15 inches lower than they had been before the 

Germanns interfered with them. He was concerned that without a 

court order requiring the Germanns to elevate the banks further 

they could wash out. He believed that if the Germanns did not 

immediately restore the banks the Butlers1 hay crop would burn up 

again like it did in 1989, He explained that in 1989 after Germann 

disturbed the lower bank of the ditch the Butler property did not 

receive sufficient water because it was all washing out over the 

destroyed lower bank on the Germann property. 

Barry Dutton, a soil scientist and irrigation specialist 

retained by the Butlers, inspected the Germannsl repairs and 

prepared a report which the District Court received into evidence. 

In large part, Mr. Duttonls conclusions formed the basis for the 

District Courtls findings of fact. The relevant portion of that 

report stated as follows: 

The soil material Mr. Germann has used to build up his 

ditch banks [in compliance with the preliminary 

injunction] is classified under the USDA-SCS system as a 

sandy loam. This soil type is quite permeable to water 

and significant leakage can be expected through these 

newly-constructed banks. The banks will seal themselves 

to some degree over a 5-10 year period but will always 

leak to some degree in this soil. 
OPTIONS WHICH WOULD ALLOW MR. BUTLER TO IRRIGATE 

HIS FIELD IN THE HISTORIC FASHION 

* The most direct method for returning to pre-existing 

conditions would be for Mr. Germann to restore the ditch 

and banks to their original configuration. Banks should 

be 1-2 feet higher than the expected water level. They 

should be 3-4 feet thick on the downhill side and 

re-vegetated. Any construction activity will expose 

soils with high permeabilities which can be expected to 

suffer excessive significant leakage for 5-10 years and 

will always leak to some degree. Lining with bentonite, 

open-topped culvert or other material would prevent this 

problem. Bentonite should be used only under direction 

of SCS personnel or other qualified professional[s] using 

SCS specifications. All ditch re-locations and 

re-construction should be surveyed for proper grade and 

bank height. 

* A second option is to have Mr. Germann build up the 

banks on his property to a greater height. Several 

important concerns must be satisfied for this to work 

satisfactorily. The banks must be of sufficient height 

and width (1-2 ft above the expected water level and 3-4 

feet thick on downhill side). The banks must be 

re-vegetated. Either significant leaks must be expected 

for a period of 5-10 years, or the ditch must be lined. 

All ditch re-locations and re-constructions should be 

surveyed for proper grade and bank height. 

During his testimony, Mr. Dutton explained that he made his 

recommendations simply to insure continued flow through the ditch on 

the Germanns' property and to avoid a problem with the ditch washing 

out in the future, thereby eliminating the flow of water to the 

Butlersf property. None of these potential problems was a cause for 

concern before the Germanns destroyed the banks of the ditch. 

Even the Germannsr own expert, Andrew Fisher, testified that 

further restoration was necessary in order to guarantee the integrity 

of the restored ditch bank. Mr. Fisher, a civil engineer who 

specializes in water resources engineering, testified that for their 

own benefit he recommended to the Germanns that they strengthen the 
ditch bank in the area that had been disturbed. He agreed during 

testimony at trial that his recommendation was similar to the 

recommendation made by Mr. Dutton. 

Specifically, Mr. Fisher recommended that the ditch banks be 

increased by a height of six to 12 inches throughout roughly a third 

of the length of the ditch on the Germann property. He agreed that 

there was legitimate concern about the stability of the banks where 

the soil had been recently replaced, and explained the problem as 

follows: 

The reason I recommended thickening was when I viewed it, 

the condition at the time I viewed it, the bank had been 

recently--it was recent construction, and I didn't feel 

the soil had settled to a point where it was stable 

enough to withstand some higher flows. With higher 

flows, wetre not just talking elevation, there's 

velocity, forces on the insides of the bank, you could 

get scouring on the bank from higher velocities. 

Mr. Fisher also agreed that good vegetative cover on the bank would 

help its stability, but that when he viewed the property the bank was 

mostly bare dirt. Tom Gale, the special master who initially found 

the Gemannst restoration efforts adequate, testifiedthathe did not 

disagree with Mr. Fisher's opinion that the ditch banks on the 

Germanns' property needed to be thickened through about a third of 

their 1 ength. 

Based upon the testimony in this case the District Court had no 

choice other than to arrive at the decision that it reached. The 

District Court found as a fact that: 

[Tlhe banks of the Waddell Ditch which Mr. Germann 

supposedly restored are only of marginal height and that 

the soil used in the restoration process is a sandy loam 

that is quite permeable and will require 5-10 years to 
fully seal without lining. Mr. Dutton concluded in his 

report af May 13, 1990 that the only way to solve the 

problems caused by Defendants without forcing Plaintiffs 

to modify their irrigation system and practices is to 

have the banks of the Waddell Ditch through Defendants' 

property further heightened, thickened, and re-vegetated 

and lined. 

This finding of fact was fully supported by not only substantial 

evidence, but by the uncontroverted evidence offered at the time of 

trial. The Germanns did not restore the ditch to a condition where 

it could be considered reliable for future use. Once the Germanns 

disturbed the ditch, it was not sufficient merely to put the dirt 

back on the banks. Further repairs were necessary to restore the 

utility and safety of the ditch. 

In civil bench trials, we will not overturn the trial court's 

findings of fact unless they are "clearly erroneous." Rule 52(a), 

M.R.Civ.P. We conclude that the District Court's finding that 

further restoration was necessary to return the Butlers to their 

rightful position was not clearly erroneous. We hold that the 

District Court did not err in ordering the Germanns to make further 

repairs. 

Did the District Court err in permanently enjoining the Germanns 

from obstructing, encroaching upon, disturbing, or otherwise 

impairing the Butlers' ditch easement? 

In its final judgment, the District Court issued the following 

permanent in junction: 

[A] permanent and perpetual injunction is hereby granted 

against Defendants and Defendantst servants, agents, 

employees, and all other persons acting under the 
control, authority, or direction of Defendants, and they 

are hereby enjoined, restrained, and commanded from 

obstructing, encroaching upon, disturbing, or otherwise 

impairing Plaintiffs1 ditch easement, known as the 

Waddell itch, or from interfering with plaintiffsi 

rights to enter, inspect, repair, and maintain said ditch 

easement as allowed bylaw. The restoration-modification 

requirements of Section 2 of this Judgment are an 

exception hereto. In addition Defendants shall be 

privileged to repair or replace any existing culverts on 

their property as necessary with culverts of equal or 

greater capacity. 

We note at the outset that ditch encroachment is prohibited by 

statute in Montana. Section 70-17-112, MCA. Thus, the District 

Courtls injunction did not change the obligation that the Germanns 

already had under the law. 

The Montana statute governing final injunctions provides : 

[A] final injunction may be granted to prevent the breach 

of an obligation existing in favor of the applicant 

where : 

.... 

(3) the restraint is necessary to prevent a multiplicity 

of judicial proceedings . . . . 

Section 27-19-102, MCA. The Butlers satisfied this statute at 

trial. The Germanns owed the Butlers an obligation to refrain from 

impairing the Waddell Ditch easement. See 5 70-17-112, MCA, There 

was sufficient evidence for the District Court to find that 

restraint was necessary in order to avoid further judicial 

proceedings which would present unnecessary expense to both 

parties. 

The Germanns argue that the permanent injunction was 

unwarranted because they say they have no plans to interfere with 

the ditch in the future. We disagree. The issuance or refusal of 

an injunction is addressed to the discretion of the trial court. 
Frarnev. Frame (1987), 227 Mont. 439, 740 P.2d 655. Here the District 

Court found a likelihood of future interference by the Germanns 

with the Butlersr ditch easement. 

The record supports this finding by the District Court. At 

the hearing on the preliminary injunction, John Germann testified 

that he planned further relocation of the ditch on his property in 

order to facilitate the construction of a fish pond. He did not 

retreat from this position at the hearing on the permanent 

injunction. It was clear from the testimony at the second hearing 

that Germann did not take the Butlers' concerns seriously. 

We hold that the District Court did not err in permanently 

enjoining any further obstruction, encroachment, disturbance, or 

impairment of the Butlers' ditch easement. 

I11 

Did the District Court err in awarding the Butlers $2000 as 

damages? 

Darwin Titeca, the Butlersr lessee, testified that as the 

result of the damage to the ditch he was unable to irrigate and 

that he had to purchase winter fodder elsewhere at a cost of $2380. 

The Butlers then credited Titeca with $2000 on his lease payment. 

Titeca also testified that he believed the Butlers gave him a 

credit for services he performed for them while leasing the 

property and that he thought he was underpaid by $1000 to $1500. 

From this, the Germanns conclude that the services were worth 

$1000, that the lease credit was for both the services and the 

replacement fodder, and that, therefore, the lost hay was only 

11 
worth $1000. We believe the District Court could have reasonably 

inferred that Titeca meant he was underpaid by $1000 to $1500 even 

after the Butlers gave him a credit for the hay. 

As we explained in Part I of this opinion, we will not 

overturn the trial court's findings in a civil bench trial unless 

they are clearly erroneous. Rule 52 (a) , M.R. Civ. P. The court's 

finding that the lease credit was for lost hay was not clearly 

erroneous. Accordingly, we hold that the District Court did not 

err in awarding the Butlers $2000 in damages. 

IV 

Did the District Court err in awarding the Butlers attorney's 

fees and costs incurred subsequent to the preliminary injunction? 

The statute prohibiting ditch encroachment authorizes an award 

of costs and attorney's fees to the prevailing party in actions 

brought to enforce its provisions. Section 70-17-112, MCA. The 

Butlers prevailed below. Since we affirm that judgment, we 

necessarily conclude that the District Court did not err in 

awarding the Butlers their costs and attorney's fees. Furthermore, 

because the Butlers have prevailed on appeal, we award them the 

costs and attorney's fees they have incurred by reason of this 

appeal. 

Affirmed. 
We concur: 

Justices 
Justice John Conway Harrison, dissenting. 

I dissent. 1 view the facts of this case differently than the 

majority and would reverse the District Courtls judgment ordering 

Germanns to further reconstruct the portions of Waddell Ditch on 

their property. 

f feel the District Court incorrectly found that Butlers were 

unable to obtain adequate irrigation water after Waddell Ditch was 

repaired by Germanns in 1989. According to Germanns, if Butlers 

were receiving adequate irrigation water after the 1989 repairs to 

the ditch, it is my view that the District Court erred by ordering 

Germanns to do further work on the ditch. 

In actions tried without a jury we may not set aside findings 

of fact unless the findings are t'clearly erroneous," and we are 

required to give "due regardt' to the opportunity of the trial court 

to judge the credibility of witnesses. Rule 52 (a), M.R.Civ.P. 

Findings of a district court are not clearly erroneous when based 

upon substantial credible evidence. Boylan v. Van Dyke (1991) , 247 

Mont, 259, 264, 806 P.2d 1024, 1027; Pare v. orriso on (1990), 241 

Mont. 218, 222, 786 P.2d 655, 657. 

Viewed in the light most favorable to the prevailing party, a 

district court's decision must be reversed if its findings are not 

based upon substantial evidence and if a clear preponderance of 

evidence supports contradictory findings. Christensen v. Britton 

(1989), 240 Mont. 393, 401-02, 784 P.2d 908, 913. If the record 

shows that the same result would have been attained despite the 

error, an error by the trial court against the appellant is not 

grounds for reversal. Rule 14, M.R.App.P. 
The District Court made the following finding: 

Plaintiffs1 lessee has since [I989 repairs to Waddell 

Ditch] encountered extreme difficulty in obtaining a 

sufficient flow of water through the Waddell Ditch to 

irrigate his downstream fields, resulting in a loss of 

hay production to the extent of approximately 25 tons. 

Butlers concede that the disputed finding is erroneous since 

Germanns' 1989 repairs to Waddell Ditch restored sufficient water 

flow to permit irrigation of the Butler property in 1990. Butlers 

disagree, however, with Germanns' assertion that the District 

Court's order was based solely upon a misconception that water flow 

continued to be impeded at the time the trial was held and point to 

other findings supporting the District Court's judgment. 

Through my examination of the record and findings I feel. that 

the District Court erred in finding that the flow of water through 

Waddell Ditch continues to be impeded. The District Court ignored 

the special master's report that Germanns had complied fully with 

the District Court's order. 

The court followed the recommendations of the expert hired by 

Butlers, Barry Dutton, and ordered Germanns to elevate the lower 

bank of Waddell Ditch by one foot, to widen the banks to three feet 

at the top, compact the banks, revegetate the banks, and line the 

ditch with bentonite. Mr. Germann altered the ditch in 1989 

because water was overflowing its low banks and blocking the 

entrance to his garage. Testimony did not indicate that the ditch 

had been lined. The law requires that the plaintiff be restored to 

the position he would have attained had the wrong not occurred. 

Billings Clinic v. Peat Marwick Main & Co. (1990), 244 Mont. 324, 
345, 797 P.2d 899, 913. In this case, the District Court's 

judgment, by ordering Germanns to build a better ditch than existed 

before Germanns bought the property, restored Butlers to a better 

position than they occupied before the wrong. 

In addition, the court ignored the special master's report 

that Germanns had restored Waddell Ditch and that water was flowing 

onto Butlers1 property in sufficient amounts to allow for 

irrigation. The special master was the District Court's own 

appointee and Chief Water Commissioner of the Fourth Judicial 

District, Tom Gale. He visited the site on five occasions and took 

several photographs of the work in progress. Mr. Gale was fully 

qualified to judge the restoration of Waddell Ditch. 

Finally, Butlers themselves concede that the ~istrict Court's 

finding that Butlers continued to have difficulty obtaining 

sufficient water for irrigation was erroneous. I would reverse the 

portion of the District Court's judgment ordering Germanns to 

further reconstruct the portions of Waddell Ditch on their 

property. 
December 12, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

David L. Pengelly 

Knight, Maclay & Masar 

P.O. Box 8957 

Missoula, MT 59807 

Jeffrey H. Langton 

Attorney at Law 

P.O. Box 1497 

Hamilton, MT 59840 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA