No. 80-138 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

79 RANCH, INC., a Montana Corporation, and HARRY VANDERVOORT, Plaintiff and Appellant,

REUBEN C. PITSCH, Defendant, Respondent and Cross-Appellant.

Appeal from: DistrictCourt of the Fourteenth Judicial ~istrict, In and for the County of Golden Valley. Honorable LeRoy McKinnon, Judge presiding. Counsel of Record: For Appellant: Ask and Pratt, Roundup, Montana Thomas Ask argued, Roundup, Montana Moulton, Bellingham, Longo and Mather, Billings, Montana Corrine Courtney argued, Billings, Montana For Respondent: Felt and Lalonde, Billings, Montana Laurence R. Martin argued, Billings, Montana

Submitted: January 15, 1981 Decided: July 9, 1981 Filed: 

## JUL9

# - 198gMr. Justice Daniel J. Shea delivered the Opinion of the Court. This case involves adjudication of the water rights of three users ofwater from Big Coulee Creek in Golden Valley County. The users are Reuben C. Pitsch, the upstream user; 79 Ranch, Inc., a Montana corporation, the midstream user; and Harry Vandervoort, the downstreamuser. Both the upstream user and midstream user appeal from a judgment of the GoldenValley District Court which held in effect, that thewater rights of the upstream user started in 1976,when they were firstput to beneficial use, and that the water rights of the midstream user start in 1973, when an appropriation

was filed and the water put to a beneficial use. Both the upstream and midstream users claimwater rights dating back to 1893 when a predecessor in interest, The Montana Cattle Company, first filed a claim to use thewater. Both the upstream and midstream users claim that the water rights
were later put to a beneficial use, and that they were not abandoned. This case started when the upstream user, Reuben Pitsch,

was taking large quantities of water from Big Coulee Creek during the exceedingly dry spring and summer of 1977. His water use considerably cut off the water supply available to both the midstream user and the downstream user. When efforts at negotiation failed, themidstream user and downstream
user filed suit and asked for a declaratory judgment determining the water rights as between theparties. They also asked for a permanent injunction and damages. The trial court decided only the relative rights of the parties, and left the othermatters to be resolved in furtherproceedings.In declaring the water rights of all three parties, the trial court entered only bald findings and conclusions, leaving no basis for this Court to examine the rulings to determinehow these findingsand conclusionswere reached. For this reason,wemust remand this case to the District Court and we direct that it enter findings and conclusions that are reflectiveof the evidence presented at trial and the legal contentionsof the parties. The findings and conclusionspresently before this Courtprovide no basis for meaningful review. We set out in this opinion why the findings and conclusions are insufficient. We consider separately the findingsand conclusionsmade determining the relativewater rights of each party. (a) Water Rights of the Upstream User--Reuben Pitsch: The upstream user, Reuben Pitsch, claimed a water right arising from an 1893 notice of appropriation by The Montana Cattle Company, a predecessor in interest. He claimed further that during the 1920's his predecessors in interest put the water to beneficial use by actually irrigating the land. Testimony and other evidencewas presented in support of these claims. The upstream user also presented evidence of a notice of appropriation filed in 1973 to use water from Big Coulee Creek. As to the 1893 water right claim, the trial court failed to analyze any of the evidence,but simply stated in
a finding that the upstream user "failed to prove by a preponderance of the evidence his alleged water right of a one-third interest in 500 inches of Big Coulee Creek, which water rightwas allegedly filedby The Montana Cattle Company; for 500 inches onApril 1, 1893,Book 22-257." That is it. The trial court does not explain why this 1893 claimwas not proved.As a safetyvalve, the trial court in the next finding, again without any analysis, found that "Pitschand his predecessors in interest abandoned their alleged interest in any claimed or asserted water rights appurtenant to their real property,prior to 1976 by non-user for a proven period running from 1911 to 1976 coupledwith proof of voluntary relinquishment of any claimed water right and an intent not to resumepossession thereof for a beneficial use." By these findings, the upstream user's claimed water rightswere denied. These findings are so conclusory, so general, thatwe cannot tell why the trial court ruled that user the upstreamldid not establish 

### awater right, and we cannot tell why the trial courtheld in effect that the upstream user, through his predecessors in interest,had abandoned any claimed water right. In the last finding relating to the upstream user, the trial court found that the firstproved water rightwas an appropriation dated May 30, 1973by Bert Schaff, the predecessor in interest to the upstream user. But the trial court also found that the "water was first put to a beneficial use in July, 1976 on 68 acres on Section 35, Township 5 North, Range 19 East, M.P.M." No explanation is provided as to why the trial court found that the water was firstput to a beneficial use in 1976. From these findings, the trial court set the water priority of the upstream user at 68 inchesdating from July 1, 1976, and then entered a conclusion of law that the upstream user had only proved a right to 68 inches dating from July 1, 1976. These findings and conclusions are so inadequate that they cannot form the basis for a reviewable judgment.(b) Water Rights of theMidstream User--79 Ranch Inc.: The midstream user, 

### 79 Ranch Inc., also claimed in 1893
an 1893 interest arising from a claim filed by its predecessor in interest, the Montana Cattle Company. Testimony and other evidencewas admitted in support of this claim. Testimony and other evidencewas also admitted in support of
a water right appropriation filed on July 13, 1973. The court made three conclusory findings on the claims of the midstream user. As to the 1893water right claim, the trial court failed to analyze any of the evidence and simply found that "thePlaintiff 79 Ranch has failed to prove by a preponderance of the evidence its alleged water right of a one-sixth interest in 500 inches of Big Coulee Creek, which water rightwas alleged filed by The Montana Cattle Company for 500 inches onApril 1, 1893,Book 22- 227."Again, as a safety valve, the trial court also found that "79 Ranch and its predecessors in interestabandoned its alleged interest in any claimed or assertedwater rights appurtenant to its real property, prior to 1976by non-user for a proven period running from 1913 to 1976 coupled with proof of voluntary relinquishment of any claimedwater right and an intentnot to resume possession thereof for a beneficial use." Any analysis of why abandonment of a claimedwater righthas occurred is totally lacking. By these findings, the midstream user's claimedwater rights were denied. These findings are so conclusory, so general, thatwe cannot tellwhy the trial court ruled that the midstream user did not establish a water rightbased on
an 1893 claim,and we cannot tell why the trial courtheld in effect, that the midstream user, through his predecessorsin interest, and his own action or nonaction,had abandoned any claimed water right. In the last finding relating to the midstream user, the trial court found that the firstproved water right "is that appropriationof Eugene Schaff et ux, dated June 13, 1973, for 30 cubic feet of Big Coulee Creek for sprinkler irrigation, filed on behalf of the plaintiff 79 Ranch, which water was firstput to a beneficial use on June 13, 1973 on 45 acres
on Section 5, Township 5 North, Range 19 East, M.P.M." From these findings, the trial court set the water right priority of the midstream user at "45 inches for use
on SW 1/4 Section 25-5N-19E., with priority date as of June 13, 1973,"and then entered the same as a conclusionof law. Again, wemust state that these findings and conclusions
are so inadequate that they cannot form the basis for a reviewable judgment. (c) Water Rights of the Downstream User--Harry Vandervoort: The trial court entered three findings giving the downstream user water rights arising out of three separate appropriation dates: 1,000 inches arising from a recorded right ofApril 

## -- 21, 1902; 320 inches arising from a recorded water right of December 

### -- 11, 1925; and 300 inches arising from a recordedwater right of June 11, 1926. (Emphasis 

### -- - added.) In the next finding, the trial court stated that the downstreamuser "hasproved diversion and actual irrigation of the lands under said water rights as of the 

### -- year 1924 by the testimony of E. J. Dolve, Sr." (Emphasisadded.) The trial court did not explain the diversion and appropriation in 1924 of water right claims filed in 1925 and 1926. The trial court then found that each of these water rights had been consolidated "into two tracts totalling approximately 50 acres

# . .." -6-From these findings, the trial court established a priority date for the downstream user as of June 1, 1924, and also entered the same as a conclusion of law. Again,wemust state that these findings and conclusions
are so inadequate that they cannot form the basis for a reviewable judgment. As in the case of the upstream user and themidstream user,we must remand this case to the trial court to entermore adequate findings and conclusions

on the claims of the downstreamuser. The judgment as to each party is vacated and this cause is remanded for entry of proper findings and conclusions.

We Concur:



# ............................. JusticesMr. Justice Frank B. Morrison, Zr., dissenting:

I respectfully dissent from the majority opinion. There is, inmy opinion, a sufficientrecord before this Court to determine the issues atbar. This dissent does not discuss evidence respecting the existence of water rights claimed by the upstream and midstream users dating back to 1893. The trial court found that these rights had been abandoned. The basis of that finding isnot clear. However, the rights had not been used for atleast 50 years. I would hold that such a continuous nonuse creates a rebuttablepresumption of abandonment. To rebut thispresumption of abandonment, theremust be established, notmerely expressions of desireor hope, but some factor condition excusing long periods of nonuse. CF & I Steel Corporationv. Purgatoire River (Colo. 1973), 515 P.2d 456. Also see Cundy v. Weber (S.Dak. 1941), 300 N.W. 17; City of Anson v. Arnett (Tex. 1952),

The argument ishere made by the upstream user thatpredecessors ininterestdid not have sufficient funds to irrigate. Inreplying to the same argument, the Colorado court, inCF & I Steel, said: 

# ".

. . Considering the large demands for allof the appropriatable water inthis state

# . . . itmight be said thatnearly every abandoned water right could have itsnon-use justified by the economics thatmight prevail sometime inthe future for use of thiswater 

# .

# .. This gleam-in-the-eye philosophy isnot consistentwith the protection and preservation of existingwater rights.

### " CF & I Steel, 515 P.2d at458. There is sufficient evidence of nonuse tojustify affirmance of the trialcourt's finding of abandonment. The downstream user claims 50 inches of water under a notice of appropriation filed in 1926 for 300 inches. The upstream user contends that 20 inches of thiswater shouldhave a priority dateafter 1941. Since the upstream user cannot show he is entitled to any water rightwith a priority datebetween 1926 and 1941, he has no standing to contest the downstream user's priority dates; the question isnot properly before thisCourt. Vidal v. Kensler (1935), 1-00Mont. 592, 594, 51 P.2d 235. The predecessor ininterest to the upstream user filed for 30 cubic feetper second on May 30, 1973. The predecessor ordered a sprinkler system capable of irrigating atleast 320

acres. This system was not used because necessary partswere
never delivered. InAugust of 1975, the upstream user purchased the land inquestion including water rights and the predecessor's irrigation system. The upstream user was unsuccessful inobtaining the necessary parts and as a consequence, he purchased a new sprinkler system and installed it inthe winter of 1975-1976. The system consistsof a 1200 gallon per minute pump on the creek which feeds a pivot sprinkler having two 160-acre settings. The upstream user ispresently irrigating 320 acres. The trial court found that the upstream user firstput water to a beneficial use inJuly 1976 but did not make any specific findings on the question of whether the upstream user's predecessor proceeded with reasonable diligence after filing in 1973. If purchase of the irrigation equipment was not diligence, then the upstream user would not have a water right. If the upstream user's claimresults from application to a beneficial use inJuly 1976, the upstream user would have nothing because of failure to fileunder the 1973 act. Nevertheless the trial court found that the upstream user was entitled to 68 inches of water, the same being the amount first appropriated inJuly of 1976.For the trial court tobe upheld with respect toits finding that the upstream user was entitled 68 inches of water, the trial courtwould have necessarily had to find reasonable diligence on thepart of the upstream user's predecessor ininterest. We should invoke thedoctrine of implied findings which would then establish that the upstream user's predecessor ininteresthad exercised reasonable diligence after filingin 1973 and that the 1973 filingwas aliveatthe timeof the firstbeneficial use inJuly 1976. Subsequent applications tobeneficial use were pursuant to the "reasonable diligence" exercised in 1973. I would find that the 320-inch application presently inplace, was the culmination of a plan startingin 1973 and that theupstream

user therefore has a 320-inch water rightdating from May 30, 1973.The midstream user filedJune 13, 1973, and thereafter purchased an irrigation system. The midstream user, under this filing, has perfected a water right to that amount of water which has been put to a beneficial use pursuant to the 1973 filing. The trial court found that themidstream user had applied 45 inches of water for thepurpose of irrigating 45 acres of land. However, the evidence shows thatonly 30 acres of land

was irrigated. I would, therefore, find that themidstream

user has a 30-inch water rightdating from June 13, 1973. I would remand this case to the ~istrict Courtwith directions toenter judgment inaccordance with theviews expressed inthisdissenting opinion.