### No. 80-81 IN THE SUPREME COURT OF THE STATE OF MONTANA

JACK A. MARTA, ROBERT D. MARTA and DAVIDA. 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. HonorableNat Allen, Judgepresiding. Counsel of Record: ForAppellants: 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



### ClerkMr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Plaintiffs appeal from a judgment entered inDistrict Court, Madison County, in favor of defendants on allissues. The plaintiffs

### were denied an exclusive prescriptive easement to 

### a roadway, 

### were found to be inwrongful possession of their "yard space", and 

### were enjoined from using an irrigation system 

### across defendants' land, untilplaintiffspaid defendants fordamages thereto. We aff

### irminpart, vacate inpart, 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 inpossession since 1904. The Smiths own approximately45 

### acres lying south of the Martas, and additional acreage lying north and east of the Martas. They have been inpossession since 1977. The road to the Marta home runs partlyover the Smith property, and has been used by the Martas and theirpredecessors, inthe 

### same location since anyone in the neighborhood can 

### recall. After Smiths moved in, they and otherpersons authorized by the defendants began using the road without Martas' permission. Martas requested thatdefendants quit using the roadway, which defendants refused to do. InMay 1978, Martas brought a quiet title action, inorder 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 inthemselves. Smiths further sought to have an 

### area of approximately 2/10 acre (the "yard space") restored to them, and to enjoinplaintiffsfrom use of an irrigation ditch over defendants' land and to compensate fordamage caused by negligent use of the ditch.Following trial, the districtjudge entered his findings and conclusions. He found a prescriptive easement inMartas 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 adverselypossessed the "yard space," the districtjudge refused to uphold the claimbecause Martas could present no evidence of having paid the taxes. Finally, the judge found thatMartas' 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 districtjudge 

### err indetermining thatplaintiffshad acquired a prescriptive easement, but not an exclusive easement, across defendants' land? (2)Did the districtjudge 

### err innot enjoining defendants' use of the roadway and innot requiring defendants to compensate plaint iffs for damage caused to the roadway? (3)Did the districtjudge 

### err indenying plaintiffs' adverse possession of the yard space, despite the fact thatevidence was introduced showing plaint iffs' possession since 1904? (4)Did the districtjudge 

### err indenying plaintiff's continued use of the irrigation ditch unless plaintiffspaid for damages done todefendants' land? (5)Did the districtjudge 

### err in awarding $2500 inattorney fees? (6)Did the districtjudge err in awarding costs to defendants? Both parties to this litigationconcede that the Martas established a prescriptive easement in the roadway where it

crosses Smiths' land. Atissue 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 easementwith exclusive and private use in themselves. Based on the testimony, the districtjudge stated inhis findings and conclusions: 

### "

# .

# .. said right of way as herein before described is a common right of way thathas been acquired by the parties by right of prescription 

### (asto those portions not specificallyowned 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 

### lawand the evidence support theirposition that they should have acquired an exclusive easement. It 

### is settled 

### law inMontana that inacquiring a prescriptiveeasement, "the right of the owner of the dominant 

### estate is governed by the character and extentof the use during the period requisite 

### to acquire it." Ferguson v. Standley (1931), 89Mont. 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), 176Mont. 169, 175, 576 P.2d 1115, 1119; Stateof 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. Attrial, plaintiffs attempted to show that allpersons who had used the road had done so onlywith the permission of Martas, thus establishing an exclusive and private use right in Martas. Smiths countered with witnesses who testified thatthe road had always been incommon usage, and thatMartas' permission had never been sought for the use. EffieSmith testified that during a summer of irrigating, she had used the road several times a day without objection fromMartas. A predecessor of Smithswho had owned the property during the 1960's testified to using the road atleast several 

### times a week, and more often when he had cattle to tend orhay 

### to put up. He moved 

### cattle and farmequipment across the road without permission.The findings of the judge indicate thathe found defendants

## ' testimony more persuasive. He found that the Martas' established use 

### was not to the exclusion of allothers. Although Martas' use 

### was "exclusive" inthe sense necessary to establisha prescriptive use inthe 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 otherpersons have participated in the use. Cronin, supra, Mont. at



## , 587 P.2d at401, 35 St.Rep. at 1805; 28 C.J.S. Easements S15. There 

### was ample testimony 

### as to the prioruses made of the roadway. We find that there is sufficientevidence 

### to support the judge's findings of a common easement, with the extentof use defined by the use made during the prescriptive period. Wewill not overturn the districtjudge's findingswhere they 

### are supported by substantial evidence. Scott, supra, 140Mont. at 562, 374 P.2d at 96. However, 

### we do find that the districtjudge incorrectly concluded thatdefendants 

### were entitled 

### to the use of

an irrigation ditch running parallel 

### to and easterlyof the roadway inquestion. Despite the fact thatdefendants did not ask for thisrelief, the district judge determined thatdefendants had acquired this right by prescription. This issue 

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

we vacate thatportion of the judgment. Based on the foregoing, we find also that the district judge properly denied the plaintiffs' request foran injunction, and their claim fordamages forrutting and disrepair of the roadway. Finding No. 8 indicates: "That the plaintiffshave maintained said roadway throughout the years but have done so voluntarily and without request for contribution from the defendants and thatno damages to said roadway were caused through the fault

### or neglect of the defendants and thatdefendants are not responsible fordamages, if any, sustained 

### or claimed by the plaintiffs." The testimony of defendants shows thatdefendants and their predecessors used the roadway for carrying on 

### a farming operation, driving animals and machinery over it. In maintaining theirprescriptive easement, plaintiffs have kept the roadway up despite thisuse by defendants and their predecessors. Martas



### are not entitled to damages for the proper uses towhich defendantsput the roadway. Neither arethey entitled to an injunction toprevent defendants from putting the roadway to the uses consistentwith 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 indenying 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 inpossession of said 

### tract and that they have proved that they have occupied t e 

### Sam open1 noto i sly excusiel



# 8 a versefy, unlXterrupEe8Yy, ~islbf~, XosXf.lely, actually, and under a claim of right, and that plaintiffs, or theirpredecessors caused the same tobe 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 theiradverse possession claim should be sustained because they have been inpossession since 1904. No statuterequiring payment of taxes was in effectuntil 1917, and 

### claims made prior 

### to that 

### timeare deemed completed without any evidence of taxes being paid. Thibault v. Flynn (1958), 133Mont. 461, 466, 325 P.2d 914, 917. The districtjudge found adverse possession, but disallowed the claim because of the nonpayment of taxes. Hemade

no finding 

### as tothe dateof the establishment of the 

### claim. That no adverse possession 

### was established prior 

### to 1917 is necessarily implied inthe findings and conclusions and 

### is sup-ported by substantial evidence. Wenote that the argument advanced inThibault, supra, 

### was briefed by counsel, and the findings indicate that the judge found it tobe inapplicable. His judgment is presumed 

### correct and 

### we willdraw every legitimate inference to support thatpresumption. Madison Fork Ranch v. L & B Lodge Pole Timber Prod. (1980), Mont. 

## ,615 P.2d 900, 905-906, 37 St.Rep. 1468, 1473. Weuphold the districtjudge's conclusion thatdefendants 

### are entitled to immediate possession of the yard space, because adverse possession 

### was not established. The districtjudge found that formany 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 defendants1land. He concluded thatplaintiffs

### were not 

### to irrigate furtheruntil the damage 

### was repaired and the system reorganized toprevent furtherdamage. 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 thatMontana 

### 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 

### etal. v. Anderson 

### et al. (1925), 73Mont. 551, 555, 236 P. 847, 848; Fleming v. Lockwood (1907), 36Mont. 384, 391-92, 92 P. 962, 964. But thisCourt has not allowed any and every use of irrigationditches, and has approved jury instruct ions which present the issue of negligence inconstruction oruse 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 therehad been cuttingat the corner of the ditch and "bad washing" at the point at which the irrigationpipe comes out. An additional witness, John Simpson, who testified to being a contractor and doing work for the SoilConservation 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 inplaintiffs' irrigation practices, and his finding of damages of $5500. We willnot overturn the district judge when there is substantial evidence to support his findings. The districtjudgeIsconclusionNo. 5provided 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 inaddition that no hearing was had 

### to establish the fees. Section 27-19-406, MCA, does 

### set a $100 limiton 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), 124Mont. 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 inwhich a bond is not involved. In making attorney fees an element of damages under section 27-19-306, the legislature surelydid not intend to make the recovery depend on the judge's discretion indemanding an injunction bond. Thus we find that the district judge shouldhave awarded reasonable fees as an element of damages, pursuant 

### to section 27-19-306, MCA, and not as costs of suit. Inthis case, there was no evidence before the District Court as towhat 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), 169Mont. 422, 429, 547 P.2d 1328, 1331-32; Crncevich v. Georgetown Rec. Corp. (1975), 168Mont. 113, 120, 541P.2d 56, 59. Therefore 

### we vacate the award of attorney fees and remand this

### case to theDistrict 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 strikethe memorandum of costs for failure to serve it upon the plaintiffs or their attorney within five days afternotice of the decision, pursuant 

### to section 25-10-501, MCA, or in the alternative, totax 

### costs. The districtjudge 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 timelymotion 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 furtherproceedings consistentwith thisopinion.

Chief Justice