No. 14540 IN

### THE SUPREME COW OF THE STATE OF IJDJWANA 1979

EmmFa G. 

## mur and BONITA L. 

## mur, Plaintiffs

### and Respondents,

HEXMAN REm and DOREESJ 0. REm, Defendants 

### and Appellants.
Appeal 

### £ran: District

### Court of 

### the 

### ThirteenthJudicial District, Honorable IiobertWilson, Judge presiding. Counselof Record: ForAppellants: 

## muat andMartinson, Billings, Wntana William G. Wt argued, Billings, bbntana For Respondents: 

### Moulton, Bellingham, mngo 

### andMather, Billings, IWntana R. H. Bellingham argued, Billings, IWntana Wrruw, 

### Sedivyand Olsen, 

### Bozeman, mntana 

### Jams H. IWrrmargued, 

### Bozeman, bbntana

Submitted: March 20, 1979 Decided:

## MAY30 

## 1979Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiffs, the Stouts, brought this action in the DistrictCourt of the Thirteenth Judicial 

### ~istrict,Yellowstone County, toenjoin defendants, the Reiters, from using certain irrigation ditches and from entering upon plaintiffs' property for the purpose of using the ditches. Defendants counterclaimed seeking toenjoin plaintiffs from interfering with defendants' right touse the ditches. The 

### case, which was tried before the Honorable Robert H. Wilson sittingwithout a jury, resulted inan order perpetually enjoining defendants from using the disputed irrigation ditches. Defendants appeal from the DistrictCourt's order. The case arose because of a disagreement over the meaning of the language used in

### a warranty deed toreserve
an easement for defendantswhen they sold 

### a parcel of land toplaintiffs' predecessors. The disputed language reads: 

# ".

. . reserving an easement 8 feet inwidth for the irrigationditch, asnow located, running from theYellowstone River on the Westto the East lineof said tract for the purpose of irrigating property owned by the parties of the firstpart lying to the North and East of said tract

# . . ."
In 1965 the land presently owned by plaintiffs and defendants was entirely owned by Leland McMorris. Atthat 

### time, William Neibauer, a realtor, effected an agreement whereby defendants purchased the entire tract from McMorris and simultaneously sold a fifteen acreparcel, subject to the reservation of certain easements, toDonald and Grace Underwood by a contract for deed. The fifteen acreparcel,
now described asTract 1, Certificate of Survey #991, is located along the Yellowstone River and contains a number of irrigation ditches which have been used since 1965 to

### irrigate defendants' adjoining property.The pump shown inthis diagram of the fifteen acre parcel is located in

### a channel of the river and pumps water into the entireditch system.Atthe 

### timedefendants sold the fifteen acre tract to the Underwoods, therewas a ditch running directly from the pump to the eastern boundary of the tract. Shortly after the Underwoods and defendants completed their transaction, this ditchwas plowed under and a new ditch

### was dug to the south. Itnow forms the southern portion of Ditch No. 6. In essence, defendants present two issues for review: 1. Whether there is substantial evidence to support the District Court's order enjoining defendants from using
a certain irrigation ditch with connecting laterals, easements forwhich areclaimed by defendants to have been reserved inthem ina contract for deed and warranty deed. 2. Whether the DistrictCourt had authority togrant
an injunction ina case of disputed 

### title or rightbefore determination of the title or right inan action atlaw. Counsel for the Yellowstone County Farm Bureau and the Montana Farm Bureau Federation appeared on appeal as amicus curiae arguing that the primary issue on appeal should be whether defendants own the ditch rights as they existed at the 

### timeof their fifteen acre transaction with plaintiffs' predecessor. Addressing this latter argument first, 

### we note that the argument assumes that prior to 1965 the ditch system constituted a servitude upon the fifteen acre parcel and an appurtenance to the land now owned by defendants. Along these lines, section 67-601, R.C.M. 1947, now section 70-17-101 MCA, provides inpertinent part: "The following land burdens, or servitudes upon land, may be attached toother land as incidents or appurtenances, and are then called easements:


### "(11)The right of having water flow withoutdiminution or disturbance of any kind."However, section 67-611, R.C.M. 1947, now section 70-17-111 MCA, provides inpertinent part that: "A servitude 

### is extinguished: "1. By the vesting of the right to the servitude and the right to the servient tenement inthe same person;" It 

### is apparent, then, that the ditch system could not have been an appurtenance todefendants' land prior to 1965because the dominant and servient tenements 

### werepart of the
same parcel. The easement inthis case was created at the 

### timethe parcels 

### were separated, and 

### we must look to the language of the instrument which created the easement to determine what it includes. The complete reservation found in the warranty deed reads as follows: 

# ".


# . . reserving, however, to the parties of the firstpart, their heirs and assigns, an easement 30 

### feet inwidth for a roadway, as the same now exists, running North and South approximately through themiddle of the said tract for the purpose of access toproperty owned by the parties of the firstpart lying to the North of said tract; 

# and reserving an easement --- 8 feetinwidth 

### -- for the irrigation ditch, 

### -- as now located, running 

### --- from the Yellowstone River on the

### West to theEast line - -

### -- - 

### -- of 

### -- said tract 

## -- for the purpose of irrigating property owned

# a the parties

# of the first 

### -- part lying 

### -- to the North and Eastof said 

### ---- tract; and alsoreserving an easement for the location of the pump which pumps the water from the Yellowstone River into said ditch and for ingress and egress thereto as necessary and for servicing and repairs, alsoknown asTract No. 1of Certificate of Survey No. 991." (Emphasis added.) Defendants argue that the ditch referred to inthe warranty deed and the contract for deed is the ditch running north and south. They argue that this is a main ditch or "dike" ditch and that the term "ditch" asused in the deed includes the entire ditch system, including the lateral ditches. Inproposing this interpretation, they seek toplace great significanceon thephrase "for the purpose of irrigating property owned by the parties of the firstpart lying tothe North and East of said tract." They contend that the one ditch, now plowed under, would not be sufficient toirrigate allof defendants' land. Testimony adduced attrial suggests, and the 

### trial court found, that defendants sold the land with the apparent intention of building a new north/south ditch on their property which would have been fed by the ditch they expressly reserved. They postponed building a new ditch because they received permission touse the entireditch system from the Underwoods inreturn for irrigating the Underwoods' property. "This Court 

### willnot reverse the findings of the trial court unless there 

### is a clear preponderance of the evidence against such findings." Schulz
v. Peake (1978), Mont. 

## , 583 P.2d 425, 430, 35 St.Rep. 1295, 1302. Here the trial court's findings are adequately supported by the evidence. Since the issue concerning the appropriateness of the remedy or the theory on which the casewas tried was not raised inthe lower court, 

### it should not be considered on appeal. Kearns v. McIntyre Const. Co. (1977), Mont

# .

, 567 P.2d 433, 440, 34 St.3ep. 703, 712. Defendants - acquiesced to the injunction theory by counterclaiming for
an injunction and reformation of the contract. The 

### ~istrict Court decided the issues on the theory adopted by both parties. 

### "

# . . . [Wlhen a party has adopted one theory upon the trialof his case, he may not change the theory onappeal. (Citationomitted.)" O'Hanlon 

### v. Ruby Gulch Min. Co. (1922), 64 Mont. 318, 326, 209 P. 1062, 1064. The judgment of the DistrictCourt 

### is affirmed.

We concur:

Judge, sitting inplace

## df Mr. Chief JusticeHaswell.

%\ \