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: DecemberJustice 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. TheGermanns 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 DistrictCourt 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. TheGermannsmoved onto theirproperty inMarch 1988. 

### Without consultingtheButlers,JohnGermann attemptedto changethe course and flow rate of theditch onhispropertyby digging itdeeper 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 complaintand requested a preliminary injunction to 

### restraintheGermanns from interfering with the ditch. The Butlers alleged that the Germanns' modification of the ditch had reduced thewater 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 Butlerproperty. The court appointed FourthJudicialDistrict Water CommissionerThomas Gale as special master to monitor the Germanns' repairs to the ditch. Galewas satisfiedwith the adequacy of the Germanns' repair efforts. The Butlers, however, were not. At the permanentinjunction hearing, they presented expert testimony that although the repairs had restored the flow in the Waddell Ditch to the Butler property, the repaired ditchbanks 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 theGermanns' 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 BillingsChitic

### v.PeatManvick

### Main&Co. (19 90 ) 

### , 244 Mont

# . 324

## , 345, 797 P.2d 899, 913. The Germanns rely on this principle in accusing the District Court of "overkill." They suggest that the District Courtwas withoutpower to require them todomore 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. Themere restorationof the height of theditch 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 thematerial with which he restored the bank and that this caused thewashout. He also admitted that there

was potential for furtherwashouts throughouthis property for the

same reason. Stanton Cooper, the general manager of the Butler property, testified that he was not satisfied with the Germannslpartial repairs. Hewatched John Germannpile dirtback onto the downslope bank of the ditch. He testified that Germannused only a very thin layer of dirt and thatwater 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 notbelieve that in the long run thepartially repairedbanks were stable enough toholdwater in the fashion that 5was necessary for theButlers to continuetheirhistorical practice of sheet irrigation. Darwin~iteca, the Butlers' lessee, agreed that the Germanns' repairswere inadequate. 

### Hewas familiar with theWaddell Ditchas it existed on theGermannpropertybefore theGermannsdisturbed 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 Butlers1hay crop would burn up again like itdid 

### in 1989, He explained that in 1989 afterGermann 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. Duttonlsconclusions formed the basis 

### for the District Courtlsfindings 

### 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. Thebanks 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 conditionswould be forMr. Germann to restorethe 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 somedegree. Lining with bentonite, open-topped culvert or other material would prevent this problem. Bentonite should be used only under direction of SCS personnel orotherqualifiedprofessional[s] using SCS specifications. All ditch re-locations and re-construction should be surveyed forproper 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 leaksmustbe expected for a period of 5-10 years, or the ditch must be lined. All ditch re-locations and re-constructions should be surveyed forproper grade and bank height. During his testimony, Mr. Dutton explained that he made his recommendationssimply to insure continued flow through theditch 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 Butlersfproperty. None 

### of thesepotential 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 restorationwasnecessary inorder to guaranteethe integrity of the restored ditch bank. Mr. Fisher, a civil engineer who specializes inwater resourcesengineering, testified that fortheir



### own benefit he recommended to the Germanns that they strengthen theditch bank in the area that had been disturbed. He agreed during testimony at trial that his recommendation was similar to the recommendationmade by Mr. Dutton. Specifically, Mr. Fisher recommended that the ditch banks be increasedby a height of six to 12 inches throughout roughly 

### a third of the length of the ditch on the Germannproperty. 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 Irecommended thickeningwaswhen Iviewed it, the condition at the time Iviewed it, thebank 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 thatwhenheviewed theproperty thebankwas mostly bare dirt. Tom Gale, the special master who initially found theGemannstrestoration efforts adequate,testifiedthathedid 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 supposedlyrestored 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 tofully seal without lining. Mr. Dutton concluded in his report af May 13, 1990 that the only way to solve the problems caused

### by Defendantswithout forcingPlaintiffs 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 theDistrictCourt err 

### inpermanently enjoining

### theGermanns from obstructing, encroaching upon, disturbing, 

### or otherwise impairing the Butlers' ditch easement? 

### In its final judgment,the District Court issued the following permanent 

### injunction: [A] permanent and perpetual injunction 

### is hereby granted against Defendants and Defendantst servants, agents, employees, and all other persons acting under thecontrol, authority, ordirection of Defendants, and they are hereby enjoined, restrained, and commanded from obstructing, encroachingupon, disturbing, 

### or otherwise impairing Plaintiffs1 ditch easement, known as the Waddell 

### itch, or from interfering with plaintiffsi rightstoenter, inspect, repair,andmaintain saidditch easementasallowedbylaw. Therestoration-modification requirements of Section 2 of this Judgment are an exception hereto. In addition Defendants shall be privileged to repair or replaceany 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 Courtlsinjunction 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 toprevent thebreach of an obligation existing 

### in favor of the applicant where:



# .... (3) therestraint isnecessary toprevent amultiplicity 

### of judicial proceedings 

# . .

# . . Section 27-19-102, MCA. The Butlers satisfied this statute at trial. TheGermanns owed the Butlers an obligation to refrain from impairing theWaddell 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 interferewith 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),227Mont. 439, 740 P.2d 655. Here the District Court found a likelihood of future interference by the Germanns with the Butlersrditch 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. Itwas 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 thathehad topurchase winter fodder elsewhereat 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 concludethat 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 11worth $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 statuteprohibiting ditch encroachmentauthorizesanaward 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 costsand 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. 1view the factsof this case

### differentlythan the 

### majority and would reverse the 

### District Courtlsjudgment ordering Germanns to 

### further reconstruct the portions of Waddell 

### Ditch on their property. f 

### feel theDistrict Court incorrectly found that Butlerswere unable to 

### obtain adequate irrigation water afterWaddell Ditchwas repaired by Germanns in 1989. 

### According to Germanns, if Butlers

were receiving adequate 

### irrigationwater after the 1989 

### repairs to 

### theditch, 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

### wemay not set aside findings of 

### fact unless the findings are 

### t'clearlyerroneous," and 

### we are 

### required togive "due regardt' to theopportunity 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 credibleevidence. 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 

### lightmost favorable to the

### prevailing

### party, 

### a district court's 

### decisionmust be reversed if its 

### findings are 

### not based upon substantial evidence and if a clear preponderance of evidence supports contradictory findings. Christensenv. 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: Plaintiffs1lesseehas since [I989repairs toWaddell 

### 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 topermit irrigation of the Butler property in 1990. Butlers disagree, however, with Germanns' assertion that the District Court's orderwasbased solely upon a misconception thatwater flow continued tobe impeded at the time the trial was held and point to other findings supporting the District Court's judgment. 

### Through

### my examinationof 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 ofWaddell Ditchby one foot,towiden thebanks 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 requiresthat theplaintiff be 

### restored to the position he would have attained had the wrong not occurred. Billings Clinic 

### v. PeatMarwick 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 Germannshad restoredWaddell 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. Hevisited 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 sufficientwater for irrigationwas erroneous. Iwould 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 CERTIFICATEOFSERVICE Ihereby certifythatthe followingorderwas sentby United States mail,prepaid, to thefollowing named:

DavidL.Pengelly Knight,Maclay &Masar P.O. Box8957 Missoula,MT 59807 Jeffrey H. Langton Attorney at Law P.O. Box 1497 Hamilton,MT 59840 EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA