IN THE SUPREME COURT OF THE STATE OF MONTANA 

PERCY A. MLELKE and DEBORAH G. 

MIELKE , Plaintiff and Respondents, 

DALY DITCHES IRRIGATION DISTRICT AND 

BOARD OF COMMISSIONERS OF DA.LY DITCHES 

IRRIGATION DISTRICT, 

Defendants and Appellants, 

DALY DITCHES IRRIGATION DISTRICT AND 

ROARD OF COMMISSIONERS OF DALY DITCHES 

IRRIGATION DISTRICT, 

Third-Party Plaintiffs and Appellants, 

THE STATE OF MONTANA and DEPARTMENT OF NATURAL 

RESCURCES AND CONSERVATION OF THE STATE OF MONTANA, 

Third-Party Defendznts and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECOFD: 

For Appellant: 

Larry Persson argued for Daly Ditches, Hamilton, 

Montana 

Candace West argued for Dept. Natural Resources, 

Helena, Montana 

For Respondent : 

Jeffrey H. Langton argued for Mielke, Hamilton, Montana 

Submitted: December 9, 198N 

Decided: January 16, 1987 

Filed: JAN 1 6 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The Daly Ditches Irrigation District, the State of 

Montana and the Department of Natural Resources and 

Conservation (DNRC) of the State of Montana appeal herein 

from a final decision of the District Court, Fourth Judicial 

District, County of Ravalli, which held that the plaintiffs 

Percy and Deborah Mielke have a first priority water right 

for irrigation from Gird Creek on the basis of adverse use. 

We determine under the facts of this case that the 

Mielkes have failed to establish the requisite elements to 

acquire the prescriptive water right which was accorded to 

them by the District Court. 

The plaintiffs Mielkes are residents of Ravalli County, 

Montana, and own farm lands of which 98.44 acres produce 

crops by irrigation. They obtained irrigation water through 

a lateral ditch owned by them and a headgate on Gird Creek 

which diverted water from the creek through their lateral. 

Gird Creek is a part of the Daly Ditch Irrigation District 

system. 

In July, 1983, the Daly Ditches Irrigation District 

locked the headgate through which Mielkes diverted water from 

Gird Creek to irrigate their lands. This caused the Mielkes 

to commence an action in District Court against the defendant 

Dal-y Ditches Irrigation District. In their complaint, the 

Mielkes alleged that they were the owners by appropriation of 

200 inches of water from Gird Creek and they asked for an 

injunction against the inference by the District with their 

water right. The District filed its answer, generally 

denying the allegations of the complaint, pleading 
affirmatively that the water rights have been transferred by 

a predecessor so as to sever the water rights from the land 

and counterclaiming against. the Mielkes for fees for the 1983 

irrigating season. 

The Mielkes responded to the counterclaim and 

affirmative defenses by general denial, and by alleging 

affirmatively that they had an adverse use right to 

irrigation water for 98.44 acres. The Mielkes further 

contended that Contract No. 90, which provided water to the 

Mielkes at the rate of $1.25 per acre-foot was perpetual in 

its terms and that the State had wrongfully raised the fees 

during the period the State operated the project. 

The State of Montana and the DMRC were brought into the 

action as third party defendants by the District on a claim 

of indemnity. 

The Daly Ditches Irrigation District (sometimes referred 

to as the Daly Ditch Project) is a water project located in 

Ravalli County. The project consists of several irrigation 

ditches and systems designed to supply water to irrigable 

lands near Hamilton, Montana, on the east side of the 

Bitterroot River. Historically, the Daly Ditch Project came 

into existence as a result of the acquisition of lands and 

water rights around the turn of the century by the Butte 

copper king, Marcus Daly. 

Mielkes' present farm lands were first described as part 

of lands passing by patents issued to Winfield Sherrill and 

Jacob Sherrill, dated 1889 and 1895, respectively. In 1888, 

Jacob Sherrill filed in the county records a notice of 

appropriation for 600 miner's inches of water from Gird 

Creek, claiming an original appropriation date of 1864. 
In June, 1890, Winfield Sherrill and the Estate of Jacob 

Sherrill conveyed title to the land with the appropriated 

water right to James C. Flanner. In September, 1890, Flanner 

conveyed title to the land and the water right to James W. 

Hamilton. Hamilton, in turn, conveyed the same to Marcus 

Daly in October, 1890. 

In December, 1901, the Estate of Marcus Daly conveyed 

the various ditch and water rights acquired during Daly's 

lifetime (includ-ing the waters of Gird Creek) to Ravalli Land 

and Irrigation Company. On the same date, the estate 

conveyed many parcels of land (including what is now the 

Mielkes' property) to Ritterroot Stock Farm, another 

corporation. The land deed to Bitterroot Stock Farm 

specifically excepted and reserved therefrom all water 

rights, water ditches and rights-of-way for ditches which 

attached to or were part of the lands conveyed. In legal 

effect, then, Daly's lands were conveyed to the Bitterroot 

Stock Farm. The water rights, ditches and easements for 

ditches, which were formerly held by Daly a.s appurtenant to 

the lands were separated and conveyed to Ravalli Land and 

Irrigation Company. 

In 1920 and 1934, John Kalberer (Mielkes' predecessor in 

interest) purchased land from the Ritterroot Stock Farm. At 

the same time, he also entered into water contracts with the 

Ra-valli Land and Irrigation Company for the purchase of water 

to irrigate his purchased lands. The water contracts were 

designated as Contract or Account No. 90. 

In 1946, Mielkes purchased the lands from Kalberer, and 

took from him an assignment of Contract No. 90 for the 

irrigation water. Mielkes currently irrigate 98.44 acres. 

Under Contract No. 90 with Ravalli Land and Irrigation 
Company, Mielkes purchased (after Plielkes sold off 10 acres) 

water to irrigate 50 acres. 

While Kalberer was still the owner of the lands, in 

1943, Ravalli Land and Irrigation Company had conveyed all of 

its right, title and interest in its water rights, d.itches, 

easements, headgates and other structures to the State of 

Montana. The State, under the Water Conservation Board (now 

DNRC) took over all the water company's water contracts as 

part of the Daly Ditch Project. The State had come into the 

picture as a part of a depression-era effort to establish 

public work programs through the encouragement of 

construction of public works. On April 23, 1943, Ravalli 

Land and Irrigation Company executed a deed, dated October I-, 

1942, conveying all of the Ravalli Land and Irrigation 

Company's right, title and interest in the Daly Ditch project 

to the State Water Conservation Board. From that date, the 

Water Conservation Board, and its successor DNRC, undertook 

operation of the Daly Ditch Water Project and continued to 

perform the water contracts with purchasers such as Mielkes 

through the 1982 irrigation season. 

Prior to 1942, the Estate of Margaret Daly (holder of 

about 1,250 acres) and the Bitterroot Stock Farm (holder of 

about 2,700 acres), as successors in interest of Marcus Daly, 

had not contracted with Ravalli Land and Irrigation Company 

for the purchase of water though these holders had continued 

to use water from the project on lands not sold by the Stock 

Farm. At the time of the take-over by the State and. prior 

thereto, the Estate of Margaret Daly and the Bitterroot Stock 

Farm negotiated contracts with Ravalli Land and Irrigation 

Company similar to the water purchase contracts held by other 

water users on the project beginning February 1, 1942. 
This project was the only state-owned water project that 

the State directly operated, maintained and repaired. In 

this it was unique among all the other projects owned by the 

State, as other state projects were operated and maintained 

by the various vrater users associations. The Daly Ditch 

Project, however, was never self-supporting; that is, it was 

never paid for wholly by the water users. From 1943, until 

the project was given up by the State, the debts exceeded 

credits by some $600,000. 

In 1979, the legislature directed the DNRC to dispose of 

the Daly Ditch Project and to cancel and write off accounts 

receivable carried on the books of the Department. The 

legislature further directed that if the DNRC was not able to 

dispose of the project as provided by law, then the Daly 

Ditch Project should be abandoned prior to January 1, 1983. 

By quitclaim deed dated December 23, 1982, the DNRC 

transferred all of its right, title and interest in and to 

the Daly Ditch Project to the Rava-lli Water Users 

Association. By quitclaim deed dated December 31, 1982, 

Ravalli Water Users Association transferred all of its right, 

title and interest in and to the Daly Ditch Water Project to 

the Daly Ditches Irrigation District. That District, which 

is the defendant in this case, is now the operator of the 

Daly Ditch Project. 

The water contract assigned by John Kalberer to Percy A. 

Mielke is one of the water contracts taken over by the State 

of Montana as a result of the transfer from the Ravalli Land 

and Irrigation Company to the State Water Conservation Board. 

The State of Montana furnished water continuously to Mielkes 

under Contract No. 90 from 1946 through 1982 by means of the 

Daly Ditch Project. Mielke terminated his payments as billed 
in 1980, though he had previously paid in every year since 

1946. The Mielkes received water for irrigation from the 

project for the irrigation seasons of 1981 and 1982, but made 

no payment. By letters dated in 1982, the Mielkes asserted 

that they were not claiming contract water but were claiming 

water under an 1864 water right and therefore they had no 

obligation to pay any further water charges under the water 

contract. 

The Mielkes had originally petitioned to join the 

Irrigation District, but have since withdrawn their petition 

and refused to join the District. Rased on their refusal to 

join the District their failure make payments, the 

Irrigation District locked the headgate that diverts water to 

the Mielkes' property. By stipulation, during the pendency 

of this litigation, irrigation waters have been supplied to 

the Mielkes. 

The payments by Mielkes under Contract No. 90 have never 

exceeded charges for water in excess of 50 acre units. The 

District Court found: 

60. The Mielkes and their predecessors have never 

paid any amount to anyone, nor have they or their 

predecessors ever been billed for any irrigation 

used over and above the 50 acre units. Therefore, 

the Mielkes have had the free and unencumbered use 

of irrigation water since the Spring of 1946 and 

their predecessors had and enjoyed such status 

prior to that date. Assuming Mielkes' total water 

use is 200 miner's inches for 98.44 acres, the 

amount of water used on 48.44 acres thereof is 49% 

of the total or 98 miner's inches. 

The District Court entered judgment for Mielkes on the 

basis of adverse use for 93 (sic) miner's inches as a first 

priority right in Gird Creek, for up to four flood irrigation 

applications, for seven days each, on their lands between May 

1 and September 30 of each year. This is the judgment from 

which appeal is taken. 
Since the basis of the District Court judgment is 

adverse use, we will discuss further facts pertaining to such 

judgment as found by the court from the evidence as we 

discuss the legal issues here. 

The acquisition of title by adverse possession or title 

by prescription is a common law development associated with 

the ownership and possession of land. At first ownership and 

possession went hand-in-hand. The common law early 

recognized that one could be the owner of land and be only in 

constructive possession of it. There evolved the principle 

that constructive possession follows title and can only be 

overcome or defeated by actual possession adverse thereto. 

In Verwolf v. Low Line Irrigation Co. (1924), 70 Mont. 

570, 578, 227 P. 68, 71, we said that a water right, a right. 

to the use of water, while it partakes of the nature of real 

estate, is not land in any sense, and that the right to the 

use of water for irrigation or other lawful purposes may be 

lost by one and acquired by another by prescription. In 

determining whether a water right is gained by prescription, 

it is usually necessary for the courts to apply principles 

that developed out of statutes or case law relating to the 

adverse use of real estate. 

A title acquired by prescription is sufficient against 

all, S 70-19-405, MCA, and our statutes recognize two ways 

for the acquisition of such title. One may claim adverse use 

founded on an instrument or judgment, S 70-19-407, MCA, or by 

actual occupancy under claim of title not founded on an 

instrument or judgment. Section 70-19-409, MCA. The 

difference seems to be that occupancy under a claim founded 

on instrument or judgment, subject to statutory limitations, 

will provide title to the whole tract, whereas occupancy 
under a claim not founded under an instrument or judgment 

gives title only to the land actually occupied. 

In this case, Mielkes contend their title is derived 

under both methods. They apparently founded a claim of right 

under the Sherrill appropriation of 1864, though the legal 

title to this appropriation appears to have been severed from 

the lands when the Estate of Marcus Daly placed title to the 

lands in one corporation, and title to the water rights in 

another. Mielkes have contended before the District Court 

and in this Court that despite the documentary separation of 

the water rights from the lands, in actual practice since 

1901 there has been no actual severance. Accordingly, the 

Mielkes have filed a statement of claim for existing water 

rights before the water courts of this State for 200 miner's 

inches of Gird Creek for use between May 1 and September 30 

of each year based on the 1864 Jacob Sherrill right. Mielkes 

argue that the severance by conveyance of the water rights 

did not give rise to any physical change in the quality, 

quantity or availability of water used on Mielkes' lands, nor 

to their periods or purposes of use. Ritterroot Stock Farm 

had no legal tit1.e to any water rights nor contract for water 

after 1901, until 1942, just before the transfer to the 

State. On this basis, Mielkes contend that the transfers by 

the Daly interests in 1901 merely severed the title to the 

land and water rights but did not sever the use of the water 

to which it had been appurtenant, especially as to Gird 

Creek. 

The District Court made reference to this argument in 

its findings and conclusions, but apparently did not rely on 

the same. If it had determined that the Mielkes' adverse use 

of water was founded on an instrument giving rise to color of 
title, the result, applying principles derived from adverse 

use in land cases, would be that the Mielkes would be 

entitled to 200 miner's inches of water without reduction, 

based on a use right. Instead the District Court reduced the 

Mielke claim to 93 (sic) miner's inches, and from that we 

must conclude that the District Court, though not clearly 

indicating, did not find a title based on adverse use founded 

on an instrument or judgment. In any event, we determine 

that any claim of adverse use by the Mielkes in this case 

cannot be founded on the Sherrill appropriation which was 

severed from the land in the Daly transfers. The annual 

payment by the Kielkes on Contract No. 90 is a recognition of 

the para.mount right of the State of Montana to sell the water 

as a separate property interest from the land. For that 

reason, we are not concerned with a dispute of fact between 

the parties as to whether there are sufficient waters in Gird 

Creek to supply 200 miner's inches of water as claimed by the 

Mielkes. The defendan.ts contend that a considerable portion 

of the water in Gird Creek is not Gird. Creek water but is 

supplemental water transferred by the project from Skalkaho 

Creek. Since we determine that Mielkes have not established 

adverse use to 200 miner's inches founded on an instrument or 

judgment, the resolution of the fact issue makes no 

difference. 

We turn then to determine whether Miel.kes have 

established an actual adverse use of the wa.ters under a claim 

of title not founded on an instrument or judgment. All 

parties agree that the elements of proof required to sustain 

a claim of prescriptive water rights are: 

1. A minimum of 5 years contin.uous use (10 years prior 

to 1953); 
2. Exclusive use by the claimant (uninterrupted and 

peaceable) ; 

3. Open use; 

4. Use under claim of right (or color of title); 

5. Use that is hostile, that is, an invasion of 

another's claimed right which the owner has the opportunity 

to prevent; 

6. Use by the claimant of water at a time when the 

owner needed the water; 

7. Use substantial enough to put the owner on notice of 

the deprivation; and, 

8. The owner must have been in position to maintain an 

action to prevent the cl-aimant's usage through the 

prescriptive period. 

Smith v. Krutar (1969), 153 Mont. 325, 457 P.2d 459; 

Grimsley v. Estate of Spencer (Mont. 1983), 670 P.2d 85, 40 

St.Rep. 1585. 

The facts found by the District Court include the 

following: 

Mielkes had, since the acquisition of their lands, 

utilized 200 miner's inches of water per year, at least three 

to four times during the irrigating season for a period up to 

seven days each time. The other contract user of irrigation 

water from Gird Creek was Ritterroot Stock Farm, itself, 

which had sold the Mielke lands to their predecessor, 

Kalberer, and had assigned their rights to him for 60 acres 

of irrigation water (of which 10 acre units had later been 

disposed) . John Roberts of the Bitterroot Stock Farm 

testified that the Stock Farm had difficulty obtaining enough 

water downstream from Mielkes to fulfill its needs. The 

Mielkes and the Bitterroot Stock Farm used the water in 
rotation, the Stock Farm taking the water when Mielkes were 

not using it. There was evidence that in most seasons there 

was enough water for both farms, although on one occasion 

testified to by Mielke, the Stock Farm had given up its right 

because there was not enough water left over after the Mielke 

usage to justify paying an irrigator on the Stock Farm. The 

irrigation use by the Mielkes of 98.44 acres was open in that 

there was a county road alongside their acreage and the 

amount of their irrigation use was open and obvious to 

persons traveling along that road, including the ditch riders 

for the District; moreover, the District headquarters was 

only a short distance from the Mielke farm. The lateral 

ditch from the headgate on Gird Creek on Mielkes' land was 

owned by the Mielkes and except on one occasion, they 

generally opened the headgate themselves when they needed to 

take water. Robert Lowery testified that his father, Glen 

Lowery, had been a ditch rider for the State in the early 

years of its operation of the project, and his father had 

told him that the Mielke right was that of "free water" which 

apparently was interpreted to mean a first right to the 

waters of Gird Creek. The father apparently believed that 

the Mielkes had a water right in Gird Creek based on some 

color of title not then explained. 

Equally apparent from the record, however, are two 

Factors which militate against a title by prescription in the 

Mielkes. First, the owner of the Daly Ditch Project during 

all of the period of claimed adverse use was the State of 

Montana. While the Bitterroot Stock Farm may itself have had 

difficulty in getting water because of the Mielke use, the 

Stock Farm was itself a contract user, and the evidence fails 

to disclose that any shortage of water which may have 
occurred for the Stock Farm under its water contract was 

brought to the attention of the owner of the project, the 

State of Montana. A substantial question exists whether the 

State of Montana as owner had notice that the Mielkes were 

claiming adversely to it with respect to the waters in excess 

of those provided under Con-tract No. 90. 

Secondly, for 34 years the plaintiffs paid the State of 

Montana what they were annually billed for the use of the 

water on their lands under a contract based upon 50 acres. 

By payment to the owners of the water right, the plaintiffs 

recognized in them a superior right to sell the waters to the 

Daly Ditch system. 

In Sherlock v. Greaves (1938), 106 Mont. 206, 216, 76 

P.2d 87, 90-91, where the defendants maintained a right to 

waters in a ditch by adverse possession, this Court said: 

Since the claim of the defendants, if any, to the 

waters of Crow Creek is not made under an 

a-ppropriation by them, any claim to the use of the 

water as against the plaintiffs, who are not the 

owners of the "Swede Ditch," cannot be adverse to 

the rights of such plaintiffs. The defendants by 

their payment to the owners of that ditch recognize 

in those plaintiffs and their predecessors in 

interest a paramount right, and therefore there was 

no basis for a finding of adverse possession by the 

defendants. (Citing a case.) 

It is, of course, true that the statement of the State's 

ditch rider, Lowery, seemed to indica-te his belief that the 

Mielkes were entitled to "free water" as of right. It is 

also true that title by prescription can arise from mistaken 

assumption of title. See Calfee v. Duke (Texas 1976), 544 

S.W.2d 640. 

However, in this case we have the additional problem 

that when the Mielkes took waters from Gird Creek over the 

years in this case, they were taking waters admittedly paid 

for by them as contract waters, and mixed with waters to 
which they now claim adverse use. In that regard, the 

possession of the Mielkes to the use of the water was not 

exclusive, but was in participation with the owner, the State 

of Montana. Title by an adverse use cannot then be gained, 

if we apply to this case the principles that are applicable 

to adverse user of lands: "[Wlhen two persons are in 

possession the seisin follows the owner. Where either owned 

a better title than the other, the law wil.1 refer the joint 

occupancy to the right of such owner." 5 Thompson on Real 

Property, S 2547, at 626 (1979). 

The rule is "tha.t in case of a mixed or common 

possessj-on of land by both parties to a suit, the law 

adjud.ges the riqhtful possession to him who holds legal 

title, and no length of time of possession can give title by 

adverse possession as against the legal title." Vider v. 

Zavislan (Colo. 1961), 362 P.2d 1.63, 166. -- See also Carley v. 

Davis (Okla. 1969), 452 P.2d 772, 776, (Mixed or shared 

possession is not the kind of possession that gives rise to 

title by prescription). 

We stated in Smith v. Krutar, 153 Mont. at 330, 457 P.2d 

Developing case law in this state provides three 

basic prerequisites for establishing adverse user: 

(1) that the claimant used water at a time when 

the plaintiff had need of it; (2) that he used it 

in such a substantial manner as to notify plaintiff 

that it was being deprived of water to which it was 

entitled; and (3) that during all of that period, 

plaintiff could have maintained. an action against 

him for so using the water. (Citing Ring v. 

Schultz (1962) , 141 Mont. 94, 101, 375 P.2d 1.08, 

111.) 

If the use of property of another was permissive in the 

beginning, the use can be changed into a hostile and adverse 

use only by the most unequivocal conduct of the user; and the 

evidence of adverse use m.ust be strictly construed against 
the adverse user, and every reasonable intendment should be 

made in favor of the true owner. Price v. Western Life 

Insurance Co. (1944), 115 Mont. 509, 514, 146 P.2d 165, 167. 

There is no showing here that the owner, the State of 

Montana, was notified by the Plielkes, that it as owner was 

being deprived of water to which it was entitled. Bitterroot 

Stock Farm may have had notice of such use; but notice to 

another contract user would not constitute notice to the 

State. The Mielkes' claim to title by prescription to t.he 

excess water over their contract supply, therefore, fai1.s. 

The defendants, State of Montana and DNRC raise a 

further issue that a title by adverse possession may not be 

acquired against the State. Mielkes object to the raising of 

this issue upon the grounds that it was not considered in the 

District Court. Our search of the record reveals that while 

the issue may have been raised in briefs, it does not appear 

that the District Court considered the issue. Because we 

have decided the question of title by adverse use on other 

grounds foregoing, we have not in this opinion considered the 

issue of whether an adverse title under the circumstances of 

this case may be acquired. against the State. 

The District Court concluded that Contract No. 90 had 

been terminated and was no longer in effect. No appeal was 

taken from that portion of the District Court judgment. 

We reverse the judgment of this cause and remand the 

same to the District Court with directions to enter judgment 

in favor of the defendants. 
We Concur: 

Chief Justice 
The Hon. Henry Loble, District Judge, dissenting: 

I respectfully dissent. 

The District Court entered judgment in favor of the 

Mielkes, on the basis of adverse use, granting them 93 

miner's inches as a first priority right in Gird Creek. Our 

review is confined to determining whether there is 

substantial credible evidence to support this decision. 

Helehan v. Ueland (1986), 725 P.2d 1192, 1194, 43 St.Rep. 

1679, 1682. "In so determining, we must view the evidence in 

the light most favorable to the prevailing party." - Id. 

"Further, the evid.ence may conflict with other evidence and 

still be deemed 'substantial.'" - Id. 

The majority reverses the District Court's judgment on 

the basis of "two factors which militate against a title by 

prescription in the Mielkes." First, the majority states 

that "a substantial question exists whether the State of 

Montana as owner had notice that the Mielkes were claiming 

adversely to it with respect to the waters in excess of those 

provid.ed under Contract No. 90." (Emphasis added.) However, 

- the record shows that the State had more than adequate 

notice. Mielke testified that he irrigated all of his land, 

98.44 acres, every year since 1946, using about 200 miner's 

inches of Gird Creek water each year. He paid only for water 

sufficient. to irrigate 50 acres [about 107 miner's inches]. 

Everytime he took water, he -- told the State what he was going 

to do. He opened his own headgate and turned water from Gird 

Creek into his ditch without permission. 

Robert Lowery, who was the ditch rider -- for the State in 

the years 1946-1950, testified that his father, who was the 

manager of the Daly Ditch Project and also employed by - the 
State, told him that Mielke was entitled to free water. 

Robert Lowery also testified that Mielke was only - to pay for 

- a portion of the water used and the balance --- was a free water 

right. Lowery gave Mielke permission to operate the headgate 

in recognition of his free water right. Lowery only allowed 

people with a free water right to open their own 

headgates--others operating on a contract right were not 

allowed to open their own headgate. Rased on the record and 

the District Court's decision, the term "free water" means 

water that Mielke had a right to use without charge as 

contrasted to water he paid for under his Contract No. 90. 

In addition, and as the majority opinion stated, "there 

was a county road alongside [Mielkes'] acreage and the amount 

of their irrigation use was open and obvious to persons 

traveling along that road, including the d-itch riders -- for the 

District; moreover, the District Headquarters was only a 

short distance from the Mielke farm." (Emphasis added.) 

Specifically, Mielke testified that District Headquarters was 

about one-third of a mile from his property and anyone 

driving on the road could. see him, with a shovel, irrigating. 

He also testified that State Personnel, including the ditch 

riders, drove back and forth on the road. " [TI here ain' t a 

day that goes by that there ain't some of their crew that 

goes over." 

In conclusion, the record shows that the State had more 

than adequate notice. 

The second factor, which, according to the majority 

opinion, militates against adverse use is that "plaintiffs 

 aid the State . . . for the use of the water on their lands 

under a contract based upon - 50 acres." (~mphasis added.) 

True, "under Contract No. 90 . . . Mielkes purchased . . . 
water to irrigate - 50 acres." (Emphasis added.) However, 

"Mielkes currently irrigate 98.44 acres." (Emphasis added.) 

Mielke testified that the most water he ever paid the State 

for was that sufficient to irrigate - 50 acres. The ditch 

rider, a State emplo ee, testified that: 1) Mielke was only 

- to pay -- for a portion of the water he used; 2) the balance of 

the water was a free water right; 3) the free water was in 

add-ition to what Mielke got under Contract No. 90, and 

4) Mielke had about a 100 inch free water right. It was 

this free water right - of a.bout 100 inches, not the purchased 

contract water, that Mielkes claimed on the basis of adverse 

possession. On that basis, the District Court granted such 

claim. Mielkes did not claim a right by adverse possession 

to water purchased from the State and used to irrigate 50 

acres. Rather, they claimed a right, by adverse possession 

to approximately 100 miner's inches used. to irrigate the 

remaining 48.44 acres of their land. Therefore, the fact 

that Mielkes paid for their contract water does not affect 

their claim of adverse possession of unpurchased non-contract 

water. Even the majority recognized this fact. They stated: 

" [Mielkes] were taking wa.ters admittedly paid - for -- them as 

contract waters, and mixed with waters - to which they - now 

claim adverse use." The majority opinion also referred to 

"Mielkes' claim to title by prescription to the excess - of 

water over their contract supply . . . " Furthermore, the 

majority questioned whether the State had notice that "the 

Nielkes were claiming adversely to it with respect to waters 

- in excess - of those provided under Contract -- No. 90." 

The majority's last argument is that the "possession of 

Mielkes to the use of t.he water was not exclusive, but was in 

participation with the owner, the State of Montana." The 
majority asserts that when two persons are in possession, the 

seisin follows the owner. In support, they cite Carley v. 

Davis (Okla. 1969), 452 P.2d 772; and Vider v. Zavislan 

(Colo. 1961.), 362 P.2d 163. The defendant in Carley 

testified that his land was his continual place of work until 

he put it in Soil Bank and that his cattle were on the land 

all one summer. The plaintiff testified that there had never 

been a year since 1944, that he did not have possession of 

such tract. The appeals court affirmed the trial court's 

determination that plaintiff's claimed. "exclusive" possession 

was shared by others and thus, not sufficient for 

prescriptive title purposes. 

In Vider, the defendant held title to the disputed 

tracts of land and built his temporary drift fences upon such 

land. The plaintiff had actual or constructive possession of 

the land. Under such circumstances, the Colorado Court 

applied the following rule: 

[I]n case of a mixed or common possession -- of land 

by both parties to a suit, the law adjudges the 

rightful hossession to him who holds legal tit.le, 

and. no length of time of possession can give title 

by adverse possession as against the legal title. 

(Emphasis added.) 

These two out-of-state cases cited by the majority are 

not applicable to the case at hand. First, Carley and Vider 

adjudicate ownership of land. The water at issue in this 

case was - not held in ownership by the State in its role as a 

sovereign. The State obtained the use of this water from 

Ravalli Land and Irrigation Co. and sold the - use thereof, as 

a ditch company, in the same manner as its predecessor. Only 

the - use of the water for purposes of sale was a.cquired by the 

State. Norman v. Corbley (1905), 32 Mont. 195, 203, 79 P. 

1059, 1060. Secondly, there was no mixed or common 
possession, by the Mielkes and the State, of the water at 

issue. Mielkes had exclusive use of the water. Mielke 

testified that he irriga.ted - all of his land every year since 

1946. There is no evidence that the State also used this 

water. 

The District Court concluded that the Mielkes satisfied 

all requirements for adverse possession of a water right for 

93 miner's inches. "This Court will not substitute its 

judgment for that of the trier of fact. We will consider 

only whether substantial credible evidence supports the 

findings and conclusions. Findings will n.ot be overturned 

unless there is a clear preponderance of evidence against 

them, recognizing that evidence may be weak or conflicting, 

yet still support the findings." Jensen v. Jensen (Mont. 

1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930. Further, the 

appellant must overcome the presumption that the District 

Courtls order is correct. Jensen v. Jensen (1979), 182 Mont. 

472, 597 P.2d 733. "Finally, a reviewing court is never 

justified in substituting its discretion for that of the 

trial court." Marriage of Ward (Mont. 1986), 725 P.2d 1211, 

1213, 43 St.Rep. 1825, 1827. "In determining whether the 

trial court abused its discretion, the question is not 

whether the reviewing court agrees with the trial court, but, 

rather, did the trial court in the exercise of discretion act 

arbitrarily without the employment of conscientious judgment 

or exceed the bounds of reason, in view of all the 

circumstances, ignoring recognized principles resulting in 

substantial injustice. " Porter v. Porter (1970) , 155 Mont. 

451, 457, 473 P.2d 538, 541. 

Because there is substantial evidence supporting the 

District Court's decision and because the District Court did 
not act arbitrarily, I would affirm its decision granting 

Mielkes a water right of 93 miner's inches on the basis of 

adverse possession. 

However, such decision brings UP another 

question--whether adverse possession can be acquired against 

the State under the facts of this case. Mielkes argue that 

this issue was not set forth, before trial, a.s a defense and, 

therefore, was waived. The issue was raised in pre-decision 

briefs, but it was not ruled upon by the ~istrict Court. 

Therefore, I would remand this case for findings of fact and 

conclusions of 1-aw on the question of whether such defense 

was waived and, if not waived, for findings and conclusions 

on whether adverse possession can be obtained against the 

State und-er the facts of this case. See, State v. Shirokow 

(Cal. 1980), 605 P.2d 859, 866. 

Hon. Henry Loble 

Judge, Sitting for 

Justice John C. 

Mr. Justice Frank B. Morrison, Jr.: 

I concur in the foregoing dissent of Judge Loble.