No. 80-81 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JACK A. MARTA, ROBERT D. MARTA 

and DAVID A. MARTA, 

Plaintiffs and Appellants, 

DOUGLAS L. SMITH and 

EFFIE L. SMITH, 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

In and for the County of Madison. 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Morrow, Sedivy, Olson and Scully, Bozeman, Montana 

For Respondents: 

Jardine, McCarthy and Grauman, whitehall, Montana 

Submitted on briefs: September 25, 1980 

Decided: :DM 1 2 1981 

Filed: 

Jkl\; 1 -. $1 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Plaintiffs appeal from a judgment entered in District 

Court, Madison County, in favor of defendants on all issues. The 

plaintiffs were denied an exclusive prescriptive easement to a 

roadway, were found to be in wrongful possession of their "yard 

space", and were enjoined from using an irrigation system across 

defendants' land, until plaintiffs paid defendants for damages 

thereto. We af f irm in part, vacate in part, and remand to 

District Court for a hearing on attorney fees and plaintiffs' 

motion to strike. 

This dispute arose between adjacent landowners near 

Sheridan, Montana, and involves several pieces of property. The 

Martas farm about 200 acres and the family has been in possession 

since 1904. The Smiths own approximately 45 acres lying south of 

the Martas, and additional acreage lying north and east of the 

Martas. They have been in possession since 1977. 

The road to the Marta home runs partly over the Smith 

property, and has been used by the Martas and their predecessors, 

in the same location since anyone in the neighborhood can 

recall. After Smiths moved in, they and other persons authorized 

by the defendants began using the road without Martas' 

permission. Martas requested that defendants quit using the 

roadway, which defendants ref used to do. 

In May 1978, Martas brought a quiet title action, in order 

to establish an exclusive prescriptive easement in themselves for 

the use of the roadway. They also sought to enjoin defendants 

from use of the road, and requested damages from defendants to 

compensate plaintiffs for the past use. 

Defendants counterclaimed against plaintiffs, seeking to 

quiet title to the road in themselves. Smiths further sought to 

have an area of approximately 2/10 acre (the "yard space") 

restored to them, and to enjoin plaintiffs from use of an irrigation ditch over defendants' land and to compensate for damage 

caused by negligent use of the ditch. 
Following trial, the district judge entered his findings 

and conclusions. He found a prescriptive easement in Martas for 

the use of the roadway, but he determined that it was an easement 

common to the parties. He refused to enjoin defendants' use. 

Although Martas were found to have adversely possessed the "yard 

space," the district judge refused to uphold the claim because 

Martas could present no evidence of having paid the taxes. 

Finally, the judge found that Martas' use of the irrigation 

system crossing Smiths' land was negligent, and had caused cutting and 

eroding of Smiths' land. He ordered Martas to cease using the 

irrigation system until it was repaired, or until they paid 

defendant for the damage caused by the use. 

The plaintiffs raise several issues on appeal: 

(1) Did the district judge err in determining that plaintiffs had acquired a prescriptive easement, but not an exclusive 

easement, across defendants' land? 

(2) Did the district judge err in not enjoining 

defendants' use of the roadway and in not requiring defendants to 

compensate plaint iff s for damage caused to the roadway? 

(3) Did the district judge err in denying plaintiffs' 

adverse possession of the yard space, despite the fact that evidence was introduced showing plaint iff s' possession since 1904? 

(4) Did the district judge err in denying plaintiff's continued use of the irrigation ditch unless plaintiffs paid for 

damages done to defendants' land? 

(5) Did the district judge err in awarding $2500 in attorney fees? 

(6) Did the district judge err in awarding costs to 

defendants? 

Both parties to this litigation concede that the Martas 

established a prescriptive easement in the roadway where it 

crosses Smiths' land. At issue is the extent of the right 

acquired by Martas, that is, whether both Smiths and Martas have 

a right to use the road, or whether Martas acquired an easement 
with exclusive and private use in themselves. 

Based on the testimony, the district judge stated in his 

findings and conclusions : 

" . . . said right of way as herein before 

described is a common right of way that has been 

acquired by the parties by right of prescription 

(as to those portions not specifically owned by 

the parties) and that the plaintiffs and defendants are entitled to the common use of the 

existing roadway for the purpose of ingress and 

egress to their respective properties. . ." 

Martas object to the "common use ,Ir and contend that the 

law and the evidence support their position that they should have 

acquired an exclusive easement. 

It is settled law in Montana that in acquiring a prescriptive easement, "the right of the owner of the dominant estate is 

governed by the character and extent of the use during the period 

requisite to acquire it." Ferguson v. Standley (1931), 89 Mont. 

489, 502, 300 P. 245, 250; 28 C.J.S. Easements $89. Therefore, 

Martas' use of the roadway cannot exceed the use which they 

made of it during the prescriptive period. Hayden v. Snowden 

(1978), 176 Mont. 169, 175, 576 P.2d 1115, 1119; State of Montana 

by and through the Montana Fish & Game Commission et al. v. 

Cronin (1978), Mont . , 587 P.2d 395, 401, 35 St.Rep. 

1798, 1805. 

At trial, plaintiffs attempted to show that all persons 

who had used the road had done so only with the permission of 

Martas, thus establishing an exclusive and private use right in 

Martas. Smiths countered with witnesses who testified that the 

road had always been in common usage, and that Martas' permission 

had never been sought for the use. Effie Smith testified that 

during a summer of irrigating, she had used the road several 

times a day without objection from Martas. A predecessor of 

Smiths who had owned the property during the 1960's testified to 

using the road at least several times a week, and more often 

when he had cattle to tend or hay to put up. He moved cattle and 

farm equipment across the road without permission. 
The findings of the judge indicate that he found 

defendants ' testimony more persuasive. He found that the Martas' 

established use was not to the exclusion of all others. Although 

Martas' use was "exclusive" in the sense necessary to establish a 

prescriptive use in the Martas, Scott v. Weinheimer (1962), 140 

Mont. 554, 561-62, 374 P.2d 91, 95-96, Martas cannot establish a 

private or exclusive easement where it is shown that other persons have participated in the use. Cronin, supra, Mont. at 

, 587 P.2d at 401, 35 St.Rep. at 1805; 28 C. J.S. Easements S15. 

There was ample testimony as to the prior uses made of the 

roadway. We find that there is sufficient evidence to support 

the judge's findings of a common easement, with the extent of use 

defined by the use made during the prescriptive period. We will 

not overturn the district judge's findings where they are supported by substantial evidence. Scott, supra, 140 Mont. at 562, 

374 P.2d at 96. However, we do find that the district judge 

incorrectly concluded that defendants were entitled to the use of 

an irrigation ditch running parallel to and easterly of the roadway in question. Despite the fact that defendants did not ask 

for this relief, the district judge determined that defendants 

had acquired this right by prescription. This issue was not 

before the court and is not a part of this litigation. Therefore 

we vacate that portion of the judgment. 

Based on the foregoing, we find also that the district 

judge properly denied the plaintiff s' request for an injunction, 

and their claim for damages for rutting and disrepair of the 

roadway. Finding No. 8 indicates: 

"That the plaintiffs have maintained said roadway throughout the years but have done so 

voluntarily and without request for contribution 

from the defendants and that no damages to said 

roadway were caused through the fault or neglect 

of the defendants and that defendants are not 

responsible for damages, if any, sustained or 

claimed by the plaintiffs." 

The testimony of defendants shows that defendants and their 

predecessors used the roadway for carrying on a farming operation, 

driving animals and machinery over it. In maintaining their 
prescriptive easement, plaint iff s have kept the roadway up 

despite this use by defendants and their predecessors. Martas 

are not entitled to damages for the proper uses to which defendants put the roadway. Neither are they entitled to an injunction to prevent defendants from putting the roadway to the uses 

consistent with defendants' interest in the land. Smiths cannot 

prevent Martas' use of the roadway, just as Marta cannot claim an 

exclusive private prescriptive easement. See Scott, supra; 28 

C. J.S. Easements 891. 

Martas next contend that the judge erred in denying 

their claim to the "yard space." The findings show that the 

plaintiffs fenced in and cultivated a portion of defendants' 

lands and that 

". . . the plaintiffs claim that they are the 

owners of and in possession of said tract and 

that they have proved that they have occupied 

t e Sam open1 noto i sly exc usi el 

a 8 versefy, unlXterrupEe8Yy, ~islbf~, XosXf.lely, 

actually, and under a claim of right, and that 

plaintiffs, or their predecessors caused the 

same to be partially enclosed by a fence, but 

that plaintiffs failed to show by any evidence 

whatsoever the payment of taxes upon said lands 

by them and, therefore, their claim of occupancy 

and ownership by adverse possession cannot be 

sustained by reason of Section 70-19-411, MCA 

1979 (Sec. 93-2513, R.C.M. 1947), and, therefor 

their 'claim of ownership by adverse possession 

fails . . ." 

Martas admit to not paying any taxes, but contend that 

their adverse possession claim should be sustained because they 

have been in possession since 1904. No statute requiring payment 

of taxes was in effect until 1917, and claims made prior to that 

time are deemed completed without any evidence of taxes being 

paid. Thibault v. Flynn (1958), 133 Mont. 461, 466, 325 P.2d 914, 

917. 

The district judge found adverse possession, but 

disallowed the claim because of the nonpayment of taxes. He made 

no finding as to the date of the establishment of the claim. 

That no adverse possession was established prior to 1917 is 

necessarily implied in the findings and conclusions and is sup- 
ported by substantial evidence. We note that the argument 

advanced in Thibault, supra, was briefed by counsel, and the findings indicate that the judge found it to be inapplicable. His 

judgment is presumed correct and we will draw every legitimate 

inference to support that presumption. Madison Fork Ranch v. L & 

B Lodge Pole Timber Prod. (1980), Mont. , 615 P.2d 900, 

905-906, 37 St.Rep. 1468, 1473. We uphold the district judge's 

conclusion that defendants are entitled to immediate possession 

of the yard space, because adverse possession was not 

established. 

The district judge found that for many years plaintiffs 

have diverted irrigation water at a point on defendants' land, 

and that they have exercised their ditch rights in a "careless, 

negligent, irresponsible and wrongful manner," causing damage to 

defendants1 land. He concluded that plaintiffs were not to irrigate further until the damage was repaired and the system reorganized to prevent further damage. He found damages in the amount 

of $5500. 

Plaintiffs contend that the judge erred in finding damage 

to defendants' lands, because the testimony showed only that 

"washing" had taken place. They argue that Montana law does not 

impose the duty of an insurer on the owner of a ditch, and mere 

washing does not show any fault on the part of the irrigator. 

Plaintiffs are correct in stating that an owner of a ditch 

is not an absolute insurer. Calvert et al. v. Anderson et al. 

(1925), 73 Mont. 551, 555, 236 P. 847, 848; Fleming v. Lockwood 

(1907), 36 Mont. 384, 391-92, 92 P. 962, 964. But this Court 

has not allowed any and every use of irrigation ditches, and has 

approved jury instruct ions which present the issue of negligence 

in construction or use to the jury. Fleming, supra, 36 Mont. at 

386-93, 92 P. at 962-65. 

Mr. Smith testified to erosion and cutting away of the 

soil on both sides of the ditch. Mr. Marsh, who testified to 

irrigating for the Martas, indicated that there had been cutting 
at the corner of the ditch and "bad washing" at the point at 

which the irrigation pipe comes out. An additional witness, John 

Simpson, who testified to being a contractor and doing work for 

the Soil Conservation Service, indicated that it would take $5500 

to make the irrigation system suitable, to prevent further 

washing on Smiths ' land, and to repair past damage. 

We find this evidence to be sufficient to support the 

judge's findings of negligence and carelessness in plaintiffs' 

irrigation practices, and his finding of damages of $5500. We 

will not overturn the district judge when there is substantial 

evidence to support his findings. 

The district judge Is conclusion No. 5 provided for 

dissolution of the injunction which prevented Smiths from using 

the roadway. He ordered plaintiffs to pay $2500 attorney fees in 

accordance with section 27-19-406, MCA. Plaintiffs contend that 

the statute does not allow for fees over $100, and in addition 

that no hearing was had to establish the fees. 

Section 27-19-406, MCA, does set a $100 limit on the recovery of costs. However, this Court has determined that attorney 

fees and costs are recoverable under section 27-19-306, MCA, as 

elements of the damages sustained by reason of the injunction, 

and no such monetary limit appears in that statute. Our past 

decisions have sanctioned the determination of the fee by using 

the "reasonable" standard. Boz-Lew Builders v. Smith (1977), 174 

Mont. 448, 455, 571 P.2d 389, 393; Godfrey v. Pilon (1974), 165 

Mont. 439, 448-449, 529 P.2d 1372, 1377; Sheridan County Electric 

Co-op v. Ferguson (1951), 124 Mont. 543, 551, 227 P.2d 597, 602. 

Despite the fact that section 27-19-306 provides for recovery by 

an action on an injunction bond, we apply the same reasonable 

standard to those actions for attorney fees in which a bond is 

not involved. In making attorney fees an element of damages under 

section 27-19-306, the legislature surely did not intend to make 

the recovery depend on the judge's discretion in demanding an 

injunction bond. Thus we find that the district judge should 
have awarded reasonable fees as an element of damages, pursuant 

to section 27-19-306, MCA, and not as costs of suit. 

In this case, there was no evidence before the District 

Court as to what constituted a reasonable fee. The district 

judge cannot make a determination without having such evidence 

before him. First Security Bank of Bozeman v. Tholkes (1976), 

169 Mont. 422, 429, 547 P.2d 1328, 1331-32; Crncevich v. 

Georgetown Rec. Corp. (1975), 168 Mont. 113, 120, 541 P.2d 56, 

59. Therefore we vacate the award of attorney fees and remand 

this case to the District Court for a hearing as to reasonable fees. 

Defendants submitted to the court a memorandum of costs of 

$1,073.87. Plaintiffs thereafter moved the District Court to 

strike the memorandum of costs for failure to serve it upon the 

plaintiffs or their attorney within five days af ter notice of the 

decision, pursuant to section 25-10-501, MCA, or in the alternative, 

to tax costs. The district judge did not rule on the motion and 

allowed the costs as claimed by defendants to stand. On appeal, 

defendants admit that several items of cost were incorrectly 

listed. Because of the District Court's failure to consider this 

timely motion of plaintiffs, we vacate the award of costs, and 

remand to the District Court for a hearing on the motion. 

We remand this case to the District Court for further proceedings consistent with this opinion. 

Chief Justice