No. 80-138 

IN THE 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: District Court 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: JUL 9 - 198g 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

This case involves adjudication of the water rights of 

three users of water 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 downstream user. Both the 

upstream user and midstream user appeal from a judgment of 

the Golden Valley District Court which held in effect, that 

the water rights of the upstream user started in 1976, when 

they were first put 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 claim water rights dating back 

to 1893 when a predecessor in interest, The Montana Cattle 

Company, first filed a claim to use the water. 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, the midstream user and downstream 

user filed suit and asked for a declaratory judgment determining 

the water rights as between the parties. They also asked 

for a permanent injunction and damages. The trial court 

decided only the relative rights of the parties, and left 

the other matters to be resolved in further proceedings. 
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 

determine how these findings and conclusions were reached. 

For this reason, we must remand this case to the District 

Court and we direct that it enter findings and conclusions 

that are reflective of the evidence presented at trial and 

the legal contentions of the parties. The findings and 

conclusions presently before this Court provide no basis for 

meaningful review. 

We set out in this opinion why the findings and conclusions are insufficient. We consider separately the 

findings and conclusions made determining the relative water 

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 evidence was 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 right was allegedly filed by The Montana Cattle Company; 

for 500 inches on April 1, 1893, Book 22-257." That is it. 

The trial court does not explain why this 1893 claim was not 

proved. 
As a safety valve, the trial court in the next finding, 

again without any analysis, found that "Pitsch and 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 coupled with proof of voluntary 

relinquishment of any claimed water right and an intent not 

to resume possession thereof for a beneficial use." 

By these findings, the upstream user's claimed water 

rights were denied. These findings are so conclusory, so 

general, that we cannot tell why the trial court ruled that 

user 

the upstreamldid not establish a water right, and we cannot 

tell why the trial court held 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 first proved water right was an 

appropriation dated May 30, 1973 by 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 first put to a 

beneficial use in 1976. 

From these findings, the trial court set the water 

priority of the upstream user at 68 inches dating 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 the Midstream 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 evidence was admitted in support of this claim. 

Testimony and other evidence was 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 1893 water right claim, 

the trial court failed to analyze any of the evidence and 

simply found that "the Plaintiff 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 right was alleged filed by The Montana 

Cattle Company for 500 inches on April 1, 1893, Book 22- 

227." 

Again, as a safety valve, the trial court also found 

that "79 Ranch and its predecessors in interest abandoned 

its alleged interest in any claimed or asserted water rights 

appurtenant to its real property, prior to 1976 by non-user 

for a proven period running from 1913 to 1976 coupled with 

proof of voluntary relinquishment of any claimed water right 

and an intent not to resume possession thereof for a beneficial 

use." Any analysis of why abandonment of a claimed water 

right has occurred is totally lacking. 

By these findings, the midstream user's claimed water 

rights were denied. These findings are so conclusory, so 

general, that we cannot tell why the trial court ruled that 

the midstream user did not establish a water right based on 

an 1893 claim, and we cannot tell why the trial court held 

in effect, that the midstream user, through his predecessors 
in 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 first proved water right "is that 

appropriation of 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 

first put 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 conclusion of law. 

Again, we must 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 of April -- 21, 1902; 320 inches arising from a recorded 

water right of December -- 11, 1925; and 300 inches arising 

from a recorded water right of June -- 11, - 1926. (Emphasis 

added.) In the next finding, the trial court stated that the 

downstream user "has proved diversion and actual irrigation 

of the lands under said water rights as of the -- year 1924 by 

the testimony of E. J. Dolve, Sr." (Emphasis added.) 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, we must 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 the midstream user, we must remand this case to the 

trial court to enter more adequate findings and conclusions 

on the claims of the downstream user. 

The judgment as to each party is vacated and this cause 

is remanded for entry of proper findings and conclusions. 

We Concur: 

............................. Justices 
Mr. Justice Frank B. Morrison, Zr., dissenting: 

I respectfully dissent from the majority opinion. There 

is, in my opinion, a sufficient record before this Court to 

determine the issues at bar. 

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 is not 

clear. However, the rights had not been used for at least 50 

years. I would hold that such a continuous nonuse creates a 

rebuttable presumption of abandonment. To rebut this presumption of abandonment, there must be established, not merely expressions of desire or hope, but some fact or condition excusing 

long periods of nonuse. CF & I Steel Corporation v. 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 is here made by the upstream user that predecessors in interest did not have sufficient funds to irrigate. 

In replying to the same argument, the Colorado court, in CF & I 

Steel, said: 

". . . Considering the large demands for all of the 

appropriatable water in this state . . . it might 

be said that nearly every abandoned water right 

could have its non-use justified by the economics 

that might prevail sometime in the future for use of 

this water . . . This gleam-in-the-eye philosophy 

is not consistent with the protection and preservation of existing water rights. " CF & I Steel, 

515 P.2d at 458. 

There is sufficient evidence of nonuse to justify affirmance of the trial court'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 this water should 
have a priority date after 1941. Since the upstream user 

cannot show he is entitled to any water right with a priority 

date between 1926 and 1941, he has no standing to contest the 

downstream user's priority dates; the question is not properly 

before this Court. Vidal v. Kensler (1935), 1-00 Mont. 592, 

594, 51 P.2d 235. 

The predecessor in interest to the upstream user filed 

for 30 cubic feet per second on May 30, 1973. The predecessor 

ordered a sprinkler system capable of irrigating at least 320 

acres. This system was not used because necessary parts were 

never delivered. In August of 1975, the upstream user purchased the land in question including water rights and the predecessor's irrigation system. The upstream user was unsuccessful in obtaining the necessary parts and as a consequence, 

he purchased a new sprinkler system and installed it in the 

winter of 1975-1976. The system consists of a 1200 gallon per 

minute pump on the creek which feeds a pivot sprinkler having 

two 160-acre settings. The upstream user is presently irrigating 320 acres. 

The trial court found that the upstream user first put 

water to a beneficial use in July 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 claim results from application 

to a beneficial use in July 1976, the upstream user would have 

nothing because of failure to file under 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 in July of 1976. 
For the trial court to be upheld with respect to its 

finding that the upstream user was entitled 68 inches of 

water, the trial court would have necessarily had to find 

reasonable diligence on the part of the upstream user's predecessor in interest. We should invoke the doctrine of implied findings which would then establish that the upstream 

user's predecessor in interest had exercised reasonable 

diligence after filing in 1973 and that the 1973 filing was 

alive at the time of the first beneficial use in July 1976. 

Subsequent applications to beneficial use were pursuant to 

the "reasonable diligence" exercised in 1973. I would find 

that the 320-inch application presently in place, was the 

culmination of a plan starting in 1973 and that the upstream 

user therefore has a 320-inch water right dating from May 30, 

1973. 

The midstream user filed June 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 the midstream user had applied 

45 inches of water for the purpose of irrigating 45 acres of 

land. However, the evidence shows that only 30 acres of land 

was irrigated. I would, therefore, find that the midstream 

user has a 30-inch water right dating from June 13, 1973. 

I would remand this case to the ~istrict Court with directions to enter judgment in accordance with the views expressed 

in this dissenting opinion.