No. 84-87 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

LLOYD KNUDSEN, 

Plaintiff and Appellant, 

-vsTHOMAS A. TAYLOR, 

Defendant and Respondent. 

APPEA .L FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Phillips, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF REXORD: 

For Appellant: 

Harrison, Loendorf & Poston; Jerome Loendorf, 

Helena, Montana 

For Respondent : 

Morrison, Barron & Young; Chris R. Young, 

Havre, Montana 

Submitted on Briefs: June 28, 1984 

Decided: August 9, 1934 

Filed: '4Uej.d 1984 

- -- Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Lloyd Knudsen appeals from the post-trial order of the 

District Court, Seventeenth Judicial District, Phillips 

County, striking from his cost bill his attorney fees which 

he sought against Thomas A. Taylor. 

The single issue on this appeal is whether Knudsen is 

entitled to attorney fees under section 70-17-112(5), MCA. 

The District Court held that in this case Knudsen is not so 

entitled. We affirm the District Court. 

This is not a case in which a trial transcript must be 

provided, and so we glean the facts involved from the court 

records and from the undisputed facts in the briefs of the 

parties. 

Lloyd Knudsen is the owner of Ester Irrigation Ditch, 

through which he diverts water from Big Warm Creek to his 

farmlands in Phillips County. 

Ester Ditch crosses lands owned b17 Thomas A. Taylor on 

which he operates a farm and ranch business. 

Taylor brought an action against Knudsen, claiming that 

Knudsen failed to maintain his ditches properly and allowed 

weeds, brush, willows and beaver dams and other obstructions 

to accumulate in the Ester Ditch so that it would not drain 

or flow water properly and causing seepage to occur to 

Taylor's lands. He also complained that Knudsen had removed 

culverts which Taylor had placed in Ester Ditch for the 

purpose of providing a crossing over the ditch from one 

portion of Taylor's farm premises to the other. Knudsen 

filed a separate complaint against Taylor alleging that 
Taylor had violated section 70-17-112, MCA, by encroaching on 

or impairing Knudsen's easement for his irrigation ditch; 

that Taylor's actions constituted a private nuisance and 

further that Taylor had assaulted Knudsen for which assault 

Knudsen sought compensatory and punitive damages. Taylor 

cross-claimed for assault against Knudsen. 

The cases were consolidated. Each party had also sought 

injunctive relief. The court submitted issues to the jury by 

special interrogatory, and reserved the injunctive issues for 

its own decision. 

In the special verdict, the jury found that Knudsen was 

entitled to damages against Taylor for the loss of crops in 

the sum of $10,000.00; that Knudsen was not entitled to 

damages for repairing the Ester Ditch; that he was not 

entitled to damages for the alleged assault; that Taylor was 

not entitled to damages against Knudsen for seepage; but that 

Taylor was entitled to damages from Knudsen for the two 

culverts which Knudsen had removed after Taylor installed 

them, in the sum of $666.48; and that Taylor was not entitled 

to damages for the alleged assault. 

Based on the jury verdict, the court entered judgment 

against Taylor in the net amount of $9,333.52, together with 

costs and disbursements. Knudsen submitted a cost bill which 

included attorney fees in the sum of $7,013.12. The District 

Court denied the attorney fees and a claim for a transcript 

for testimony, and then retaxed costs in the sum of $525.22 

in favor of Knudsen. 

The court then entered its order granting injunctive 

relief. It made findings of fact. The District Court found 

that the servient owner (Taylor) had a need for a crossing 

over Ester Ditch for himself, his family, his employees, to 
take machinery back and forth across the ditch; that there 

had been a seepage of wa.ter from Ester Ditch which had not 

yet caused damage to Taylor's crops; that the seepage could 

be minimized by keeping the ditch banks in good repair and by 

repairing the damage to the ditch banks caused by beavers. 

The District Court determined as a conclusion thet the 

dominant owner (Knudsen) has the duty to regulate the flow of 

water through the headgate which carries the water from Big 

Warm Creek into Ester Ditch and that it was Knudsen's duty 

and responsibility to insure that the water entering the 

ditch would not overflow the ditch bank. The District Court 

also concluded that the servient owner (Taylor) had the right 

to install a crossing culvert in the ditch, provided that he 

constructed, installed and maintained that culvert or bridge 

in such a manner that it would not interfere with or obstruct 

the flow of water through the ditch or conflict with the 

purpose or character of Knudsen's easement. 

Based on those facts and conclusions, the District Court 

permanently enjoined Knudsen from allowing more water to pass 

through the headgate into Ester Ditch than the ditch could 

carry that might result in water overflowing the ditch banks; 

from failure to maintain the ditch so as to minimize water 

seepage and from interfering with Taylor's right to install, 

construct and maintain a crossing culvert across Ester Ditch. 

The District Court also enjoined Taylor permanently from 

obstructing the flow of water through Ester Ditch, and from 

any failure to install or construct a culvert or bridge that 

would not interfere with the flow of water through Ester 

Ditch. 

Knudsen's claim for attorney fees arises under these 

provisions of section 70-17-112, MCA: 
"(2) No person may encroach upon or otherwise 

impair any easement for a canal or ditch used for 

irrigation or any other lawful, domestic or 

commercial purpose, including carrying return 

water. 

" (5) If a legal action is brought to enforce the 

provisions of this section, the prevailing party is 

entitled to costs and reasonable attorney's fees." 

Knudsen contends that here he brought an action to 

enforce the provisions of section 70-17-112(2), MCA; that he 

is the prevailing party because he received a net judgment 

(E.C.A. Environmental Management Services, Inc. v. Toenyes 

(1984), 679 P.2d 213, 218, 41 St.Rep. 388, 393); and that 

section 70-17-112 (5), MCA, is not subject to interpretation 

where attorney fees are concerned. 

As the District Court noted, the return of the jury to 

the interrogatories of the special verdict is inconsistent in 

one respect. Knudsen had claimed damages to crops in the sum 

of $117,000. The jury reduced this figure to $10,000. Yet 

the award of damages would indicate an opinion on the part of 

the jury that Taylor had improperly impeded the flow of water 

through the Ester Ditch so as to damage Knudsen's crops. 

However, the jury also found that Taylor was entitled to 

install the culverts because the jury awarded Taylor damages 

for the culverts which Knudsen had removed. 

In our judgment, this controversy arises out of a 

misinterpretation. by each party of the other party's rights, 

or a misapplication of his own rights. 

Knudsen assumed that he had a right to the flow of water 

through the Ester Ditch without any encroachment of any kind 

on the part of Taylor. Therefore, when Taylor installed the 

crossing culverts in the Ester Ditch, Knudsen went upon 

Taylor's lands and tore out the culverts. 
Taylor insisted on his right to place a crossing culvert 

in the Ester Ditch but did not install culverts large enough 

to permit the unimpeded flow of water to Knudsen's lands or 

to permit the water from running over the sides of the 

culvert thus damaging the ditch. The result was that Knudsen 

suffered more monetary damages than did Taylor, but each 

sustained damages by reason of the other party's failure to 

grasp fully their respective rights and responsibilities 

concerning the ditch. 

The injunctive order issued by the District Court is a 

victory and a loss for both sides. Knudsen prevailed in his 

contention that the culvert must be of sufficient size to 

carry fully the water from the headgate passing through the 

Ester Ditch. Taylor prevailed in that his right to install 

such crossing culverts was recognized in this case. In such 

circumstances, we determine that the District Court was 

correct in finding in effect there was no prevailing party in 

the cause in the contemplation of section 70-17-112(5), MCA, 

and properly denied attorney fees. 

Affirmed. 

We Concur: 

3449. P"'*w 

Chief Justice 
Justices 
Mr. Justice Frank B. Morrison, Jr., dissents as follows: 

In my opinion the relevant statute, section 

70-17-112(2)(5), MCA, controls and allows attorneys' fees. 

Knudsen did in fact institute an action to prevent Taylor 

from impairing his ditch right. Knudsen was successful. It 

makes no difference that the jury awarded Taylor the value of 

his culverts. Even if the culverts were improperly 

installed, Taylor may well be entitled to damages for the 

destruction of the culverts. This in no way detracts from 

the fact that Taylor was found to have improperly impeded the 

flow of water through the Ester Ditch and Knudsen was awarded 

damage for such improper conduct on the part of Taylor. The 

clear language of the statute authorizes attorneys' fees 

under these circumstances. 

I would reverse the order of the District Court and