NO. 82-417 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

MAY GRIMSLEY, DAVID GRIMSLEY, 

EVA OXARART, LILLIAN BOOS, and 

FAYE SEEL, 

Plaintiffs and Appellants, 

ESTATE OF WILLIAM R. SPENCER, 

Deceased, 

Defendants, Respondents and Cross-appellants. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Phillips, 

The Honorable B. W. Thomas, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Leaphart Law Firm, Helena, Montana 

For Respondents: 

Robert L. Johnson, Lewistown, llontana 

-- --- - - -- 

Submitted on Briefs: June 16, 1983 

Decided : 

:jc 1 \; - $83 Filed: 

October 6, 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from a decision of the District 

Court of the Seventeenth Judicial District, Phillips County, 

the Honorable B. W. Thomas presiding in his capacity as 

District Judge and water judge, decreeing a first right to 

the plaintiffs to the use of 500 miner's inches of water of 

Dog Creek in southern Phillips County and an easement for an 

irrigation system in conjunction with that right; denying 

plaintiffs a prescriptive right to the remaining waters of 

the creek; and denying injunctive relief against the 

defendants for engaging in certain activities with respect 

to the creek and plaintiffs' irrigation system. Plaintiffs 

appeal from that portion of the decree denying them a 

prescriptive right to 1,000 miner Is inches. Defendants 

cross-appeal from the grant of 500 miner's inches to 

plaintiffs. For the reasons stated below, we affirm the 

judgment of the lower court with respect to both appeals. 

Plaintiffs and defendants have been embroiled in a 

six-year legal dispute over the use of waters from Dog 

Creek, which is located near the Sun Prairie community in 

southern Phillips County. The plaintiffs own a 160 acre 

tract of land, designated as the Northeast Quarter of 

Section 22, Township 24N., Range 31 E. M.M. The tract was 

originally owned by William R. Spencer, a relative of 

defendants. Spencer entered the area as a squatter prior to 

1899, made a desert entry claim on the tract in 1901, and 

successfully proved-up in 1905. Spencer remained on the 

land until 1924, when the tract was lost in a foreclosure 

action. The land was subsequently purchased by Sherman 
Grimsley, a relative of plaintiffs, and has been in their 

family since 1924. Substantially all of the land is 

irrigable, and hay crops have been harvested thereon 

continuously since 1901. 

Defendants own two tracts of land adjacent to the 

plaintiff 's tract on the north and east. Dog Creek is an 

intermittently flowing stream arising in the Larb Hills, 

located to the east of plaintiffs' and defendants' land. 

The waters of the creek flow westerly through or near the 

described lands. Generally, the creek flows from melting 

snow and early rains in March and April, and again in June 

from rain. Occasionally, it will flow at other times during 

the year from heavy rains. Its waters are run-off surface 

waters. 

On April 22, 1899, William R. Spencer claimed 500 

miner's inches of water from Dog Creek through the use of a 

dam and ditch, for the purpose of irrigating the 160 acres 

of the Northeast Quarter. He filed a notice of 

appropriation, as required by law. His notice was filed 

with the clerk and recorder of Valley County (which at that 

time included the area now known as Phillips County) on 

April 22 and was recorded in Book 6 of Water Rights, page 

80, records of Valley County. Be proceeded diligently to 

divert and apply his claim to the Northeast Quarter. From 

the evidence produced at trial, it is clear that irrigation 

of the tract has continued virtually without interruption 

since 1901. The dam and ditch constructed by Spencer, and 

improved and maintained by Sherman Grimsley and the 

plaintiffs, are located on those tracts owned by defendants. 

Defendants also make use of the waters of Dog Creek, relying 
on claims filed subsequent to Spencer's in 1916 and 1920. 

Although measuring devices have never been used on the 

creek, evidence produced at trial suggested that the 

estimated capacity of the Dog Creek channel was 

approximately 1,500 miner's inches. 

A county road runs from north to south along the 

east line of the Northeast Quarter, effectively separating 

the properties of plaintiffs and defendants and cutting 

across Dog Creek at about the point where William Spencer 

and the plaintiffs have diverted the waters of the creek. 

For many years, the road just ran through the creek. In 

1954, however, the county constructed a high grade across 

the creek near the diversion point. The county installed 

three culverts, one to handle the Dog Creek channel at the 

north end of the grade, and two smaller culverts on the 

south end to accommodate the plaintiffs' water right. 

Plaintiffs connected to the southerly culverts by adjusting 

their ditch from the creek east of the high grade toward the 

west to the middle culvert, and west again away from the 

culvert to the Northeast Quarter. Under this system, the 

plaintiffs are served by the middle culvert. During times 

of excess flow, Dog Creek water flows toward the north 

culvert and spreads out, in part, flowing southwest toward 

the Northeast Quarter. 

Between 1924 and 1948, Sherman Grimsley and the 

plaintiffs constructed holding and spreading dikes to manage 

and allocate the waters on their lands. Plaintiffs have 

always used all the waters flowing into this system until 

their needs are satisfied, after which any excess waters are 

released and allowed to flow on to lands owned by their 
neighbors, who have come to depend upon the excess flow. 

This system, which is apparently known to all residents of 

the Sun Prairie Community, has generally worked well since 

William Spencer first diverted Dog Creek over eighty years 

ago. 

The seeds of the current dispute appear to have been 

planted after construction of the high grade in 1954. A 

process of silting commenced in the plaintiffs' ditch on the 

east side of the middle culvert, and weeds eventually 

started to grow in the silted area. In 1971, one of the 

defendants, Vance Spencer, cultivated the area to eradicate 

the weeds, and planted it wit11 grass and alfalfa. He 

replanted the area in 1972. Unfortunately, Spencer's 

efforts had the effect of diverting water in the ditch 

northward away from the middle culvert, which serves the 

plaintiffs' tract. During the period 1974 to 1976, 

plaintiffs, on at least two separate occasions, attempted to 

enter the area and repair the ditch, but defendants denied 

them entry. In late 1976 and early 1977, the plaintiffs 

entered the land despite defendants' objections and restored 

the ditch. Defendants did not resist this entry or 

otherwise interfere with the work. Before repairs were 

completed, however, the run-off waters had gone down the 

channel created by Vance Spencer's cultivation and away from 

the middle culvert. There was no additional run-off and the 

plaintiffs were unable to irrigate and raise their usual 

crop in 1976. 

From evidence produced at trial, it also appears that 

during the years between 1972 to 1976, plaintiffs tried to 

resolve their problems by installing barriers across the 
up-stream end of the north culvert in an attempt to raise 

the water level and force the flow back to the middle 

culvert. Vance Spencer removed these barriers, but during 

the same period installed and removed similar barriers to 

the culvert, ostensibly to apportion the water between the 

par ties. 

The disagreements between plaintiffs and defendants 

led to the filing of this law suit in 1977. In their 

original complaint, plaintiffs sought to enjoin defendants 

from diverting any waters from Dog Creek and from changing 

the channel of the creek. They also sought actual and 

punitive damages for the diminished 1976 hay crop and 

defendants' allegedly willful and oppressive behavior with 

respect to the exercise of plaintiffs' water use, but the 

claim for damages was waived before trial. More 

importantly, plaintiffs sought a decree that they were 

entitled to 500 miner's inches of the Dog Creek flow, based 

on William Spencer's 1899 claim, and all of the flow in 

excess of that claim (approximately 1,000 miner's inches) 

based on prescriptive use over the statutory period. 

Plaintiffs also sought an easement for construction and 

maintenance of the diversion system located on defendants' 

land. Defendants eventually filed an answer generally 

denying all the allegations and claims made by the 

plaintiffs. (An amended answer, filed over four years 

later, raised more specific defenses and asserted 

aff irmative claims, but it was disallowed by the court. ) 

The Department of Natural Resources and Conservation was 

invited to intervene, but declined and waived receipt of 

further pleadings, claiming no substantial interest in the 
outcome of the proceedings. 

After nearly five years of additional pleading, 

pre-trial conferences, offers of settlement, and an 

unsuccessful attempt by defendants to obtain summary 

judgment, the case finally came to trial in March 1982. The 

court heard testimony from both sides concerning the nature 

of the dispute and plaintiffs' claims on the waters. After 

additional briefing, the court entered findings of fact and 

conclusions of law and entered a decree on July 28, 1982. 

The trial court decreed that plaintiffs had a right to 500 

miner's inches of Dog Creek water, with a priority date of 

April 22, 1899, and an easement on defendants' land to 

maintain the diversion. The court found that plaintiffs had 

not acquired a prescriptive right to any amount of the 

waters in excess of 500 miner's inches. Further, the court 

concluded that there was insufficient evidence to show that 

defendants would interfere with plaintiff s' right in the 

future, and therefore denied the request for injunctive 

relief. 

In its findings and memorandum accompanying the 

decree, the court elaborated on its conclusions with respect 

to the award of water rights. The court concluded that 

plaintiffs had failed to establish all of the elements of 

their prescriptive claim. Specifically, the court found no 

evidence that plaintiffs' use of any excess waters was 

hostile to that of defendants'. Plaintiffs did not show 

that they had used water when defendants and their 

predecessors had use of it; that defendants' or their 

predecessors' hay crops suffered from any lack of water for 

the prescriptive period; and that defendants or their 
predecessors could have maintained a cause of action against 

plaintiffs for their use of the water. Moreover, the court 

found no evidence that plaintiffs had put any of the excess 

water to beneficial use on the land -- an important element 

of all appropriations, whether by prescription or not. 

Plaintiffs moved to amend the findings and conclusions 

and to request a new trial, principally to present new 

evidence concerning the irrigation needs of the Northeast 

Quarter. Following a hearing, the court concluded that 

there was no basis to amend its earlier findings and 

conclusions and no statutory grounds for a new trial, and 

denied plaintiffs' motions. 

On appeal, plaintiffs allege that the trial court 

erred by denying them a prescriptive right to 1,000 miner's 

inches of water from Dog Creek. Specifically, they assert 

that the element of hostility is not required under the 

allegedly unique facts of this case, and that the evidence 

before the trial court clearly preponderates in favor of a 

finding that plaintiffs made beneficial use of - all the 

waters in Dog Creek. Defendants cross-appeal from the award 

of the 500 miner's inches, arguing that there is no evidence 

in the record to support such an award, and requesting that 

plaintiffs be limited to exactly one miner's inch per acre 

on their tract, or 160 miner's inches. 

THE REQUIREMENT OF HOSTILE USE 

When plaintiffs filed their initial complaint, they 

followed the theory that their prescriptive claim to the 

1000 miner's inches could be granted only upon a successful 

showing of all the elements of prescription. However, 

during the course of trial and on this appeal, plaintiffs 
altered their theory, insisting that proof of all elements 

-- especially a showing of hostile or adverse user -- is not 

necessary. To support this proposition, plaintiffs rely 

exclusively on our decision in Cook v. Hudson (1940), 110 

Mont. 263, 103 P.2d 137, wherein, according to plaintiffs, 

we held that the mere uninterrupted use of water for the 

statutory period is sufficient to vest clear title in the 

user, without a showing of hostility. We now turn to our 

former decision to see if such a holding is readily 

discernable. 

In that case, the plaintiff, Cook, filed an action to 

determine whether he or the defendant Hudson owned prior 

rights to the waters of Grove Creek in Stillwater County. 

Hudson answered on several grounds, but most importantly, 

argued that Cook's title was insufficient by virtue of a 

break in the claim of title between two of Cook's 

predecessors in interest. In addition, Hudson claimed a 

prescriptive right to the waters, predicated upon a showing 

that he and his predecessors had a record of continuous, 

notorious, and exclusive use over the statutory period 

adverse to Cook and his predecessors. Cook, supra, 110 

Mont. at 268, 282, 103 P.2d at 139, 144. 

The trial court, sitting with a jury, indulged a 

series of presumptions concerning ownership and possession, 

and concluded that there was no fatal break in the claim of 

plaintiff's title, and that defendant had not gained a right 

by prescription. 110 Mont. at 272-83, 103 P.2d at 141-46. 

With respect to the Cook title, however, plaintiffs in the 

immediate case point to the following language in the 

opinion to support their argument concerning hostile use: 
"On the question of prescriptive right, 

as applied in favor of the plaintiff's 

[Cook's] title, it is our opinion that 

Magee's [Cook's predecessor] undisturbed 

possession for a period of time in excess 

of the time necessary to acquire title by 

prescription, standing alone, was 

sufficient to vest clear title in him." 

110 Mont. at 281, 103 P.2d at 145. (emphasis added) We then 

cited sections 6817 and 6818, R.C.M. 1935 [now sections 

70-19-406 and 70-19-405, MCA], presumably to bolster this 

conclusion. The former statute provides that occupancy of 

property for any period confers a title sufficient against 

all except the state and those who have title by 

prescription, accession, transfer, will, or succession. The 

latter refers to obtaining title by prescription to property 

occupied for the statutory period. With reference to the 

former statute on simple occupancy, we then had this to say 

concerning Cook's title to the water rights arising from 

Grove Creek: 

"The only vital question that seriously 

affects plaintiff's title to the prior 

right initiated by Grant [one of Cook's 

predecessors] is the break in the record 

title heretofore mentioned . . . The 

right gained by Magee by his occupancy of 

the right to use of the water in 

accordance with section 6817. 

[70-19-406, MCA] cannot be successfully 

challenged after so long a time, and we 

can disregard any question as to whether 

Magee acquired [his predecessor's] right 

grounded on the Grant appropriation and 

still, within all recognized rules of law 

and equity, hold that Magee, upon his 

taking possession of the . . . squatter's 

claim, . . . using the waters at all 

times without let or hindrance as shown 

by the record, and bringing the land on 

which the water was used to patent, 

established a first right to the waters 

of Grove Creek against all others. 

"The clear preponderance of the evidence 

is to the effect that no one questioned 

the exercise of the first right to the 

waters of the creek by any owner or 
occupant of the land described in the 

complaint from and after Grant made the 

appropriation in 1892, until the 

defendant invaded the right of the 

plaintiffs in 1937 which resulted in this 

lawsuit. " 

110 Mont. at 281-2, 103 P.2d at 145-46. 

From the above language, plaintiffs in the immediate 

case conclude that they have acquired title to 1,000 miner's 

inches of Dog Creek by virtue of uninterrupted use of these 

waters between 1901 -- the time the waters were first put to 

use -- and the mid-1970's -- the period when plaintiffs and 

defendants began feuding over the waters. The requirement 

of hostile or adverse use is mitigated by virtue of the long 

period of uninterrupted use. We re-emphasize that Cook is 

the only authority cited by plaintiffs to support their 

argument. And, at least one commentator has interpreted 

Cook to establish a new rule permitting a party to gain a 

prescriptive right. See Note, Water Riqhts: Prescriptive 

Right to the Use of Water in Montana, 3 Mont.L.Rev. 135, 139 

(1942). 

After carefully considering plaintiffs' argument, the 

trial court concluded that it did not read Cook to relieve 

plaintiffs from the burden of establishing hostile use. We 

concur with the trial court's judgment. We believe that 

plaintiffs have misconceived the Cook decision both in 

itself and within the entire context of Montana water law. 

At the outset, we note that Cook, unlike plaintiffs in 

the immediate case, never asserted a prior right to the 

waters by prescriptive use. Rather, he sought to uphold his 

right only by a showing that he had title to the water right 

in conjunction with title to his land. See, Cook, supra, 

110 Mont. at 268, 103 P.2d at 139. Furthermore, although it 
is not entirely clear from the opinion, it does not appear 

that Cook's water right arose on the defendant's land, as is 

the situation in the case before us. A careful review of 

the opinion reveals that Cook was found to have title by 

occupancy and a chain of oral conveyances. Although there 

was an indication that his water right had not been 

mentioned in an early conveyance between two of his 

predecessors in interest, this Court indulged a series of 

statutory presumptions respecting possession and ownership 

and held that the water right had always been part of the 

interest in the land eventually acquired by Cook. See, 110 

Elont. at 272-283, 103 P.2d at 141-46. Therefore, we do not 

believe that Cook can be read to support plaintiff's theory, 

as neither Cook nor this Court really maintained that 

he was attempting to preserve his right by a claim by 

prescription. 

This observation, however, still does not explain the 

above-quoted language from Cook suggesting that a plaintiff 

like Cook could acquire a prescriptive right to the use of 

water with only a showing of continuous and uninterrupted 

use. Within the context of the whole opinion, we think the 

choice of language both unfortunate and confusing, and while 

there may be a simple explanation for it, we do not feel at 

liberty to comment on what our brethren really meant by this 

language forty-three years ago. Such second-guessing would 

do an injustice to the need for certainty in the law. 

Instead, we assume, for the purpose of argument, that the 

language represents a new rule of law concerning 

prescription. After making such an assumption, however, we 

reject any such rule as contrary to long-standing precedent 
both within our jurisdiction and in our sister states that 

adhere to similar principles of water law. 

Initially, we note that our decisions concerning 

acquisition of rights by prescription have always required 

any party alleging prescription to satisfy every element of 

the claim, including hostile or adverse user, and that a 

failure to satisfy any element is fatal to the entire claim. 

See, e.g., Smith v. Krutar (1969), 153 Mont. 325, 329-30, 

457 P.2d 459, 461-62; King v. Schultz (1962), 141 Mont. 94, 

100, 375 P.2d 108, 111; Havre Irrig. Co. v. Majerus (1957), 

132 Mont. 410, 415, 318 P.2d 1076, 1078; Lamping v. Diehl 

(1952), 126 Mont. 193, 203, 246 P.2d 230, 235; Irion v. Hyde 

(1938), 107 Mont. 84, 88, 81 P.2d 353, 355; Verwolf v. Low 

Line Irrig. Co. (1924), 70 Mont. 570, 577, 227 P. 68, 70; 

Custer Con. Mines Co. v. City of Helena (1916), 52 Mont. 35, 

44, 156 P. 1090, 1094; Smith v. Duff (1909), 39 Mont. 374, 

378, 102 P. 981, 982; Bullerdick v. Hermsmeyer (1905), 32 

Mont. 541, 544, 81 P. 334, 338; Talbott v. Butte City Water 

Co. (1903), 29 Mont. 17, 26, 73 P. 1111, 1113. In addition, 

we note that those western states adhering to the prior 

appropriation doctrine have also so held. See, e.g., Kountz 

v. Olson (1934), 94 Colo. 186, 29 P.2d 627; Church v. 

Stillwell (1898), 12 Colo.App. 43, 54 P. 395; Gilbert v. 

Smith (1976), 97 Idaho 735, 552 P.2d 1220; Determination of 

Relative Rights In and To the Waters of Franktown Creek 

(1961), 77 Nev. 348, 364 P.2d 1069; Hammond v. Johnson 

(1937), 94 Utah 20, 66 P.2d 894; Campbell v. Wyoming 

Development Co. (1940), 55 Wyo. 347, 100 P.2d 124, 102 P.2d 

745. Thus, any rule relieving plaintiffs of the burden of 

satisfying any element of the prescriptive claim would be 
contrary to the weight of precedent in Montana and other 

western states. 

The mere fact that the claimant is a plaintiff 

claiming under a prior right makes no difference with 

respect to the requirements for satisfying prescription. 

Montana has not yet squarely addressed the law of 

prescription under these particular facts, but other prior 

appropriation states have never held that plaintiffs, 

claiming under prior right, need satisfy fewer or completely 

different elements. See, e.g., Campbell, supra, wherein the 

Wyoming Supreme Court held that: 

"the mere use of water, however long 

continued, does not give rise to a title 

by prescription. The plaintiffs [who 

were claiming title on the basis of prior 

rights] were, in addition, bound to show 

an invasion in a substantial manner of 

the rights of the [defendant], and the 

extent of that invasion during a 

continuous prescriptive period." 

55 Wyo. 347, 102 P.2d at 748. The closest this Court has 

come to a specific consideration of a plaintiff's claim is 

apparent in O'Connor v. Brodie (1969), 153 Mont. 129, 454 

P.2d 920. In that decision, the plaintiff, who had 

established a prior prescriptive right to waters associated 

with a ditch in the trial court, did not have to relitigate 

that claim on appeal, our ruling being confined to a 

determination of whether plaintiff had established a 

prescriptive right in the ditch. Nevertheless, in dictum, 

we said that, "the evidence relative to [proof of a 

prescriptive right in] the water line and diversion system 

would amply support specific conclusion [sic] that 

plaintiffs were owners of the water right by reason of title 

by prescription." 153 Mont. at 135, 454 P.2d at 924. 
Because O1Connor was required to prove a prescriptive right 

in the system by establishing all elements of prescription, 

we deduce that he would have been required to make a similar 

showing for the water right itself. 

To allow a plaintiff, or any party for that matter, 

the opportunity to obtain title to water rights by a showing 

of mere uninterrupted use would do a disservice to the sound 

precepts of western water law. Ideally, all water rights 

should be obtained in as orderly a manner as is humanely 

possible. Prescription does not contribute to the 

maintenance of an orderly system. Stone, Problems Arising 

Out of Montana's Law of Water Rights, 27 Mont.L.Rev. 1, 17 

(1965). Indeed, we recognize that, with respect to water 

rights based on claims made after July 1, 1973, acquisition 

of title by prescription is not permitted. See, section 

85-2-301, MCA. We think this observation is akin to the 

time-honored proposition that one claiming title to property 

under adverse possession must bear a heavy burden to show 

that his use of the property is continuous, hostile, actual, 

notorious, and exclusive to the owner of record, for one who 

has legal title should not be forced to give up what is 

rightfully his without the opportunity to know that his 

title is in jeopardy and that he can fight for it. Water 

rights are much too precious to forego without a showing of 

hostile or adverse use. No use of water by the plaintiffs 

in this case can be said to be hostile or adverse to the 

defendants unless such use actually deprived the defendants 

of the water when they actually had need of it. Otherwise, 

the defendants would lose something shared with plaintiffs 

under conditions where sufficient water was available for 
everyone ' s use. 

In summary, we hold that the weight of authority 

demands that any party attempting to claim title to a water 

right must satisfy every element of the prescriptive claim. 

To the extent that Cook may have announced a different rule, 

then, we expressly disapprove of any language in that 

opinion or interpretations arising therefrom which would 

articulate such a different rule. 

On appeal, plaintiffs have apparently not argued in 

the alternative that, given a legal requirement to show 

hostility, sufficient proof of hostile or adverse use was 

established before the trial court. This being the case, 

plaintiffs cannot claim a prescriptive right to an 

additional 1,008 miner's inches of Dog Creek. If plaintiffs 

wish to claim any or all of these waters, they will have to 

adhere to the requirements of sections 85-2-301, MCA, et 

seq., relating to applications for appropriation. 

THE OUESTION OF BENEFICIAL USE 

As noted previously, the failure of plaintiffs to 

establish adverse user defeats their entire claim to the 

1,000 miner's inches. Therefore, we need not address the 

issue of whether plaintiffs proved beneficial use of the 

same sum. Nevertheless, defendants have cross-appealed as 

to the award of the first 500 miner's inches from Dog Creek, 

claiming there is no evidence to support beneficial use of 

that sum by the plaintiffs. Before turning to this issue, 

however, we address plaintiffs' argument that defendants are 

somehow estopped from challenging the award of 500 miner's 

inches on appeal. 

Plaintiffs claim that defendants have always 
recognized the validity of a prior right to 500 miner's 

inches in plaintiffs, and that a challenge to this right is 

estopped on appeal. Specifically, plaintiffs refer to 

certain sections of a motion for summary judgment made by 

defendants during the course of pre-trial proceedings. In 

an a£ f idavit supporting the motion, defendant Vance Spencer 

stated that he "always recognized the prior 500 inch 

Grimsley right . . ." Similarly, in a memorandum supporting 

the motion, defendant's attorney stated that, "[dlefendant 

Vance Spencer's affidavit establishes clearly that 

plaintiffs have a recorded 500 inch water right in Dog Creek 

... " Finally, plaintiffs point to certain statements in 

requests for admissions filed by defendant's attorney which 

impliedly recognize a "recorded 500 inch Grimsley right 

... " Plaintiffs argue that these statements from the 

pleadings, taken together, indicate recognition of the right 

and prevent defendants from asserting otherwise on appeal. 

That a party is bound by his pleadings needs no further 

elucidation. See, Fey v. A. A. Oil Corp. (1955), 129 Mont. 

300, 285 P.2d 578. 

Upon a thorough examination of all the pleadings, as 

well as the statements of attorneys at trial, we believe 

that, contrary to plaintiffs' argument, the 500 inch claim 

was generally in dispute from the beginning. Defendants' 

initial answer to plaintiffs' complaint contained a general 

denial of all of plaintiffs1 claims, which included an 

assertion of the 500 inch right. Clearly, the claim to that 

much water was material to the proceedings, and the effect 

of an answer generally denying the claims of a plaintiff has 

the effect of putting every material allegation in dispute. 
Davis v. Sullivan (1936), 103 Mont. 452, P.2d 1292. 

roa 

Furthermore, pre-trial memoranda submitted indicate that 

defendants were willing not to contest plaintiffs' claim to 

500 miner's inches if plaintiffs were willing to settle 

other aspects of the lawsuit. These statements do not 

constitute admissions. And, during trial, defendants and 

their counsel took great pains to refer to plaintiffs' 

"claim" as simply that and nothing more. 

Moreover, the conduct of plaintiffs' attorney at trial 

and the analysis of the trial court contained in the 

findings of fact further persuade us that defendant is not 

now changing his legal theory of the case. We note that 

defendants' summary judgment materials -- the focus of 

plaintiffs' concern -- were filed in early 1979. Pleadings 

submitted and arguments made by defendants after 1979 make 

it abundantly clear that the 500 inch claim was in dispute. 

Yet we find no indication in the record that plaintiffs did 

not know about defendants' arguments. Neither is there any 

indication that plaintiffs ever objected to this alleged 

change in strategy. Admittedly, the assertion by defendants 

that plaintiffs were not entitled to all of the 500 inch 

claim was perhaps most clearly stated in an amended answer 

stricken by the court as improperly filed. But in its 

memorandum accompanying its decree, the trial court stated 

that, "except for the affirmative claim of defendants to a 

prescriptive right to the use of water not beneficially used 

by plaintiffs, it appears that issues raised by defendants 

[in the amended answer] are triable under the general denial 

of the original answer." We think this observation by the 

trial court constitutes further evidence that defendants 
fully intended to dispute plaintiffs' claim to the first 500 

inches of water in Dog Creek. 

In any event, defendants were not in a legal position 

to admit that plaintiffs had a "right" to waters in the 

creek. Plaintiffs had a burden to prove that they had put 

the original Spencer claim to a beneficial use, and only 

when the trial court was satisfied that plaintiffs had 

sustained their burden would the claim ever ripen into a 

true right. Defendants could certainly choose not to 

contest the priority of any claim to the waters, and they 

could also opt not to dispute the granting of 500 miner's 

inches in exchange for a settlement, but these options did 

not relieve plaintiffs of their burden to show beneficial 

use to obtain a right. 

Construing all the pleadings, statements of counsel at 

trial, and observations of the trial court together, we find 

no reason to believe that defendants are now taking a 

position contrary to their approach both before and during 

trial. Defendants have never disputed that plaintiffs have 

a prior right to some of the waters of Dog Creek, and that 

appears to be the substance of the defendantst position in 

the motion for summary judgment in 1979. Defendants' 

assertion that plaintiffs are not entitled to the sum of 500 

inches of the waters of Dog Creek is not a new issue. They 

are entitled to question now, as they did during trial and 

in their subsequent post-trial briefs, the award of that sum 

to the plaintiffs by the trial court. 

This is an equity case. In examining the trial 

court's decree, we are entitled to review all questions of 

fact arising upon the evidence in the record, and determine 
the same, as well as questions of law, unless for good cause 

a new trial or the taking of further evidence in the court 

below be ordered. Section 3-2-204(5), MCA. In so doing, 

however, we have always indulged certain presumptions in 

favor of .the trial court's determinations. We do not 

substitute our judgment for that of the trial court; rather, 

we determine whether there is substantial evidence to 

support the lower court's findings. Bagnell v. Lemery 

(Mont. 1983), 657 P.2d 608, 40 St.Rep. 58; Shanahan v. 

Universal Tavern Corp. (1978), 179 Mont. 36, 39, 585 P.2d 

1314, 1316. By "substantial evidence," we mean that 

evidence which : 

"will convince reasonable men and on 

which such men may not reasonably differ 

as to whether it establishes the 

plaintiff's case, and, if all reasonable 

men must conclude that the evidence does 

not establish such case, then it is not 

substantial evidence. The evidence may 

be inherently weak and still be deemed 

'substantial' . . . [citations omitted]." 

Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154, 

158, 557 P.2d 821, 823. We will not overturn the trial 

court's findings unless there is a clear preponderance of 

evidence against them, and we will review the evidence in a 

light most favorable to the prevailing party. Cameron v. 

Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 945. 

Clearly, the evidence presented by plaintiffs to 

justify a prior right to any quantity of water from Dog 

Creek was, to say the least, very sparse. Yet the trial 

court found that 500 miner's inches -- the amount specified 

in William Spencer's 1899 claim -- was "reasonably required" 

for irrigation purposes. The court based its decision on 

the following "circumstances": 
" a . That is the quantity for which 

William R. Spencer filed on April 22, 

1899, from which this Court infers that 

experience as of that date led Spencer to 

specify that quantity. 

"b. The soil in the area is permeable to 

moderately permeable, from which the 

Court infers that more than the usual 

one-inch per acre is reasonably required 

for penetration. 

"c. The Dog Creek flow comes fast when 

it comes, and 'dies quick, so that the 

water must be so used as to give the soil 

a maximum soaking when the water is 

available. 

"d. A strong flow of water is required 

to cover the 160 acres by means of the 

dike and ditch system of the Grimsleys." 

Findings of Fact No. 13. In its memorandum accompanying the 

decree and findings, the court reiterated these 

circumstances to justify the award. 

With respect to the first circumstance, we note 

initially that this, by itself, does not support the award. 

Statements made in notices of appropriation, while important 

to establishing a prima facie case for the sum of water 

claimed, are not entirely dispositive for the purpose of 

transforming the amount claimed into a right. Holmstrom 

Land Co. v. Meagher County Newland Creek Water Dist. (Mont. 

1979), 605 P.2d 1060, 1065, 36 St.Rep. 1403, 1408-09, Irion 

v. Hyde (1938), 107 Mont. 84, 95-96, 81 P.2d 353, 358. 

Moreover, the trial court's inference is not supported by 

the evidence. As the court noted in another finding of 

fact, Spencer did not cultivate hay until 1901, nearly two 

years after the notice of appropriation was filed. There is 

no evidence in the record to indicate what experience he had 

in 1899, and whether he could justify a claim of 500 miner's 

inches for use on a hay crop that would not even be 
developed until two years later. 

Based on the available evidence, however, we cannot 

say that the remaining circumstances fail to support the 

trial court's decree. The testimony of the several lay 

witnesses, although admittedly very general, is not so 

inherently unreasonable as to warrant reversal. We 

recognize that a scientific evaluation of the soil and the 

requirements for cultivation is lacking, but we have often 

recognized that the claims and observations of those who 

work the land may be more important than the assessements of 

expert technicians. As we said in Federal Land Bank v. 

Morris (1941), 112 Mont. 445, 453, 116 P.2d 1007, 1010, 

". . . the testimony of the men on the 

land, who know the soil, the kind of 

crops that can be raised on it, and who 

have spread the water and dug into that 

soil, and watched the effect during the 

entire growing season, brings in evidence 

of considerable weight [as opposed to the 

opinions of experts]." 

Here, there is substantial evidence, based on the 

observations of key witnesses, that the water applied to 

plaintiffs' land helped produce some of the best blue-joint 

hay in the Sun Prairie community, and that soil conditions 

and waterflow patterns warranted application of about 500 

miner's inches of Dog Creek water, each time the water was 

available, in order to insure an annual crop. We are 

unwilling to disparage these observations, based as they are 

on years of experience in working and irrigating the land. 

Defendants have not pointed to anything in the court's 

findings of fact that is "clearly erroneous" within the 

meaning of Rule 52(a), M.R.Civ.P., save the facts 

surrounding the first circumstance for justifying the award. 
We find that this error is insignificant in the context of 

all of the trial court's findings. 

Accordingly, the judgment of the trial court awarding 

priority of 500 miner's inches to plaintiffs and denying a 

prescriptive right to the remaining 1000 minep inches is 

affirmed. 

We concur: 

P, vh~ 

Chief Justice 

Justice 

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