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 Thirteenth Judicial District, 

Honorable Iiobert Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

muat and Martinson, Billings, Wntana 

William G. Wt argued, Billings, bbntana 

For Respondents: 

Moulton, Bellingham, mngo and Mather, Billings, IWntana 

R. H. Bellingham argued, Billings, IWntana 

Wrruw, Sedivy and Olsen, Bozeman, mntana 

Jams H. IWrrm argued, Bozeman, bbntana 

Submitted: March 20, 1979 

Decided: MAY 3 0 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Plaintiffs, the Stouts, brought this action in the 

District Court of the Thirteenth Judicial ~istrict, Yellowstone County, to enjoin defendants, the Reiters, from using 

certain irrigation ditches and from entering upon plaintiffs' property for the purpose of using the ditches. 

Defendants counterclaimed seeking to enjoin plaintiffs from 

interfering with defendants' right to use the ditches. The 

case, which was tried before the Honorable Robert H. Wilson 

sitting without a jury, resulted in an order perpetually 

enjoining defendants from using the disputed irrigation 

ditches. Defendants appeal from the District Court's order. 

The case arose because of a disagreement over the 

meaning of the language used in a warranty deed to reserve 

an easement for defendants when they sold a parcel of land 

to plaintiffs' predecessors. The disputed language reads: 

". . . reserving an easement 8 feet in width 

for the irrigation ditch, as now located, 

running from the Yellowstone River on the 

West to the East line of said tract for the 

purpose of irrigating property owned by the 

parties of the first part 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. At that 

time, William Neibauer, a realtor, effected an agreement 

whereby defendants purchased the entire tract from McMorris 

and simultaneously sold a fifteen acre parcel, subject to 

the reservation of certain easements, to Donald and Grace 

Underwood by a contract for deed. The fifteen acre parcel, 

now described as Tract 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 in this diagram of the fifteen acre parcel is 

located in a channel of the river and pumps water into the 

entire ditch system. 
At the time defendants sold the fifteen acre tract to 

the Underwoods, there was a ditch running directly from the 

pump to the eastern boundary of the tract. Shortly after 

the Underwoods and defendants completed their transaction, 

this ditch was plowed under and a new ditch was dug to the 

south. It now 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 for which are claimed by defendants to have been reserved in them in a contract for deed and warranty deed. 

2. Whether the District Court had authority to grant 

an injunction in a case of disputed title or right before 

determination of the title or right in an action at law. 

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 time of 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 in pertinent part: 

"The following land burdens, or servitudes 

upon land, may be attached to other land as 

incidents or appurtenances, and are then 

called easements: 

" (11) The right of having water flow without diminution or disturbance of any kind." 
However, section 67-611, R.C.M. 1947, now section 70-17-111 

MCA, provides in pertinent part that: 

"A servitude is extinguished: 

"1. By the vesting of the right to the servitude and the right to the servient tenement 

in the same person;" 

It is apparent, then, that the ditch system could not have 

been an appurtenance to defendants' land prior to 1965 because the dominant and servient tenements were part of the 

same parcel. The easement in this case was created at the 

time the 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 first part, their heirs and assigns, an 

easement 30 feet in width for a roadway, as 

the same now exists, running North and South 

approximately through the middle of the said 

tract for the purpose of access to property 

owned by the parties of the first part lying 

to the North of said tract; and reserving an 

easement --- 8 feet in width -- for the irrigation 

ditch, -- as now located, running --- from the Yellowstone River - on - the West - - to - the - East - line 

of -- said tract -- for the purpose of irrigating 

-- property owned a the parties of the first 

part lying -- to the North ---- and East of said 

tract; and also reserving 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, 

also known as Tract No. 1 of Certificate of 

Survey No. 991." (Emphasis added.) 

Defendants argue that the ditch referred to in the 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" as used in the deed 

includes the entire ditch system, including the lateral 

ditches. In proposing this interpretation, they seek to 
place great significance on the phrase "for the purpose of 

irrigating property owned by the parties of the first part 

lying to the North and East of said tract." They contend 

that the one ditch, now plowed under, would not be sufficient to irrigate all of defendants' land. 

Testimony adduced at trial 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 to use the entire ditch 

system from the Underwoods in return for irrigating the 

Underwoods' property. "This Court will not 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 case was tried was not 

raised in the 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 trial of his case, he may not change the theory on 
appeal. (Citation omitted.)" O'Hanlon v. Ruby Gulch Min. 

Co. (1922), 64 Mont. 318, 326, 209 P. 1062, 1064. 

The judgment of the District Court is affirmed. 

We concur: 

Judge, sitting in place df Mr. 

Chief Justice Haswell. %\ \