NO. 83-174 

### IN THE SUPREME COURT OF THE STATE OFMONTANA 1984

THE MONTANA COALITION FOR STREAT4ACCESS, INC., a Montana non-profit corp., Plaintiff and Respondent,-vsLOWELL S. HILDRETH, Defendant and ~hird Party Plaintiff and Appellant,

THE STATEOF PlONTANA,MONTANA DEPARTMENTOF LAIJDS

## ,GARETHMOON, COI~ll!IISSIONER OF FlOZJTRNA DEPARTMENT OF LAXDS;MONTANA DEPARTMENT OF FISH,WILDLIFEAND PARKS, and JIM

### W. FLYNN, DIRECTOROF PlONTANADEPARTFIENTOF FISII, WILDLIFE AND PARKS, Third Party Defendantsand Respondents.

APPEAL FROM: DistrictCourt of the Fifth Judicial District, Inand for the County of Beaverhead, TheHonorableJack D. Shanstrom,Judgepresiding. COUNSEL OF RECORD: ForAppellant: Kirwan & Barrett; Peter

### M. Kirwan argued for Hildreth, Bozeman,Montana For Respondents: Goetz, Madden & Dunn;James 11. Goetz argued for Mont. Coalition for StreamAccess, Bozeman,Montana JohnF. North & LyleManley,Dept. of State Lands, Helena,Montana Stanley Bradshaw,Dept. of Fish,Wildlife & Parks, Helena,Flontana

For Amicus Curiae: ChristineC. Parker,American Farm Bureau,Dillon, Montana J.H. Morrow for Montana Farm Bureau Federation & Wyoming Farm Bureau Federation,Bozeman, Montana DanielC. Murphy forMont. Stockgrowers & Wool Growers Assoc., Helena,Montana Vincent J. Kozakiewicz forNat'lWildlife Assoc. & Mont. WildlifeAssoc., Missoula,Montana Michael Coil for Trout Unlimited, Bozeman, Montana Albert Stone,University of Montana, Plissoula,Montana

Submitted: March 22, 1984 Decided: June 21, 1984 

## billy ,;

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# :984 Filed: 

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# %# 

# 4- ClerkMr. Chief Justice Frank 

### I. Haswell-delivered the Opinion of the Court. This is an appeal from a Rule 54(b),M.R.Civ.P., certified partial judgment entered 

### by the District Court of the Fifth Judicial District, Reaverhead County. After trial on thematter of a permanent injunction,the DistrictCourt held that the Beaverhead River is navigable for recreational use and that the public has a. right of access up to the ordinary high watermark without interference from appellantHildreth. Hildreth appeals. We affirm. Lowell S. Hildreth (Hildreth) is a property owner who

owns land abutting the Beaverhead River. The river flows for approximately one and one-half miles through his property. The Montana Coalition for Stream Access, Inc. (Coalition), is a nonprofit Montana corporation dedicated to the promotion of public access toMontana's rivers. The Beaverhead River originates at the confluence of the Red Rock River and Horse Prairie Creek in Reaverhead County,Montana. It flows in a northeasterly direction from Clark Canyon Dam through the Beaverhead Valley to a point near Twin Bridges, Montana,where it joins the Big Hole River to form the JeffersonRiver. The Coalition filed a compla.int on April 8, 1981, alleging that the public and members of the Coalition were entitled to float the Beaverhead throughHildreth's property. The Coalition filed amotion forpreliminary injunction

on May 8, 1981, stating that Hildreth had installed a fence across the river on the downstream side of a bridge he had built over the river and was preparing to install a cable

across the river for the opening day of fishing season. After a hearing, the District Court entered an order for a

### preliminary injunction on May 15, 1.981, enjoining Hildreth from interfering with members of the public until the case

was decided on the merits. Hil-drethfiled an answer, demand for jury trial and thi-rd-partycomplaint against the State, the Department of Fish,Wildlife and Parks, the Department of State Lands and their directors. Hildreth counterclaimed against the Coalition based on a theory of inverse condemnation. After a hearing, the court,onMarch 21, 1982,granted the Coalition'smotion to amend the complaint and request for injunction, struck the jury demand,and severed the trial on the Coalition's complaint from the trial of Hildreth's thirdparty claim against the State, et al. On the first day 

### of trial, June 23, 

### 1982,the courtdismissed Hildreth's counterclaim against the Coalition. Trial took place June 33 

### through 25, 1982,with incorporation of evidence taken at the preliminary injunction hearing on May 15, 

### 1981. Expert engineers also testified on August 9 and September 7, 1982. On December 7, 1982, the court issued findings of fact and conclusjons of law in favor of the Coalition and granted the Coalition apermanent injunction declaring the Beaverhead River subject to public access up to the high water mark as it passes through Hildreth's lands and restraining Hil-dreth from interfering with floaters, so long as the public stays within the ordinary highwatermark.

I 

### The following issueshavebeen ra.isedon appeal: 1. Whether the public has a right to use the Reaverhead River for recreationalpurposes.2. Whether determinationof ownership of the streambed of the Beaverhead River is necessary to a decision in this

case. 3. Whether it was error to deny Hildreth's motion to dismiss. 4. Whether itwas error to deny Hildreth a.jury trial. 5. Whether theDistrictCourt determined title to real property through an injunction. 6. Whether i.t was error to dismiss Hildreth's counterclaim. 7. Whether it was error to sever the trial of the third-party complaint from the trial of thismatter. 8. Whether Hi1dret.hhas been deprived of a property right as a result of theDistrictCourt's ruling. 9. Whether it was error to adopt the Coalition's findings of fa.ctand conclusions of law virtually verbatim.

The first issue is whether the public has the right to

use the Beaverhead River for recreationalpurposes. The District Court found the Beaverhead River to be navigable for recreational use under the pleasure-boat test and the commercial use test. While we affirm the result,we find it unnecessary and improper to determine a specific test under which to find navigability for recreational use. The pleasure-boat test is a test which has not been adopted in Montana and the commercial use test is a federal test d.esigned to determine navigability for title purposes and not navigability for use. Neither are suitable nor appropriate here.

### As we stated in a previous decision, navigability for

use is determined by state law,Montana Coalition for Stream Access v. Curran (Mont. 1984)

## , P.

### 2d. 

### , 41 St.Rep. 906. 

### - Article IX, Section 3(3),

### of the 1972 Montana Constitution provides: 

### "All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law."

We have not limited the recrea.tiona.1 use of the State's waters by devisin.ga specific test. As we held in Curran, supra, the capability of use of the waters for recreational purposes determines whether the waters can be so used. The Montana Constitution clearlyprovides that the State owns the waters for the benefit of its people. The Constitution does not limit the waters' use. Consequently, this Court cannot limit theiruseby inventing some restrictive test. Under the 1972 Constitution, the only possible limitation of use can be the characteristics of 

### the waters themselves. Therefore, no owner of property adjacent to State-owned waters has the right to con.tro1the use of those waters as they flow through his property. Thepublic has the right to use the waters and the bed and banks up to the ordinary high wa.termark. Curran, supra. Further, as we held in Curran, in case ofbarriers, the public is allowed to portage around such barriers in the least intrusive manner possible, avoiding damage to the adjacent owner's property and his rights. In addition, as we stated in Curran, nothing herein contained in this opinion shall be construed as granting the public the right to enter upon or cross overprivate propertyto reach the State-owned waters held available for recreational purposes.

The second issue iswhether determination of ownershipof the streambed of the Beaverhead is necessary to a decision in this case. Hildreth contends that the District Court erred in failing to state findings of fact and conclusionsof lawwj-th rega.rdto the Martin patent. Hildreth maintains that the patent gave his predecessor-in-title,and su.bsequentlyhimself, title to the bed of the Beaverhead. We held in Curran, supra,that the question of title to the underlying streambed is immaterial in determining navigability for recreational use of State-owned waters. This holding applies equally to the casenowbefore us. Further, other jurisdictions have determined recreationalusewithout regard to the question of ownership of the underlyingbed. As in the matter nowbefore us "Respondents have devoted a substantial portion of their argument on appeal to the matter of title to the stream bed, asserting that a finding of navigability will result in a taking of private land. As in both the Bohn [Bohn v. Albertson

(1951), 107 cal.E2d at 749, 238 P.2d. 1281 and Mack [People Ex Rel. Baker v. Mack 197 19 Cal.App.3d 1040, 97 Cal.Rptr 4481 cases, however, the question of title to the bed of a navigable stream is not raised in this action to determine public use rights, nor is it relevant to the issues herein presented for decision. Mack supra, 19 Cal.R~tr.448: (People Ex Re1 -~aker 

### v. -- - Cal.App.3d at p. 1050, 97 Bohn v. Albertson, supra, 

### -- at p. 749, 238 P.2d 128.) The ownership of the bed is not determinative of public navigationalrights,nor vice-versa. (Forestier - v. Johnson, 164Cal. 24, 31-32, 39, 127 P. 156; Eohn v. 

### --- Albertson. suDra. 107 Cal.Aw.2d at DD. Idaho 

### F. & G. Ass'n v. Picabo Inc., suDra, 528 P.2dPat D. 129 -. iv. Gallaaher. 77 Wa.sh.2dL 306. J. L ; Southern Livestock, 8;Wilbour 462 P.2d 

### - ..d 232, 238; 55 Ops.Cal.Atty.Gen., supra,at p. 294; 36 0ps.Cal.Atty.Gen. 20, 26.)" Hitchings v. Del Rio Woods Recreational Park District. (1976), 127 Cal.Rptr. 830, 55 Cal.App.3d 560. Since title to the underlying bed is not at issue and is immaterial to the determination of the public's right of use, the District Court did not err in failing to make findings of fact and conclusionsof law relative to the ownership of the streambed.

IV The next two issues are whether Hildreth's motion to dismiss this action and request for a jury trialwere properly denied. Hildreth argues that since this matter was brought originally under the Declaratory Judgments Act, he contends tha.ta declaratory judgment action is inappropriate in this matter and that the District Court erred in not dismissing thismatter. Hildreth further argues that althouqh this action was original-lybrought as a declaratory judgment action, it was amended to change the claim to one seekina a permanent injunction. Hildreth contends the purpose of this change was to deny him the right to a jury trial to which he would have been entitled under the DeclaratoryJudgmentsAct. The Coalition responds that while the actionwas first denominated as one for declaratory judgment, it has always been injunctive in nature. In fact, the first major court confrontation between the parties came on May 15, 1981,within a few weeks of filing the complaint, at the hearing for a temporary injunction. The extensive file and transcripts support the Coalition's argument that the action has alwaysbeen injuncti~rein nature. Hildreth's position on these issues is inconsistent. First he argues that the declaratory judgment action should have been dismissed because itwas inappropriate, but he also contends that the court should not have allowed plaintiff to amend its complaint because itdeprived him ofhis right to a jury trial under the Declaratory JudgmentsAct. He appears to have been demanding a jury trial in an action which he contends should never have been tried. Tobegin with,nothing in the Declaratory Judgments Act gives an absolute right to a trial by jury. Sections 27-17-101 through 27-17-405,MCA. It is a recognized general rule of law that the nature of the issues determine the right to a jury trial. If the issues are strictly equitable there has not been nor is there now such a right. As this Court has stated previousl.y, "A judgment will not be reversed to grant the losing party the right to a jury trial when the record discloses nothing for the jury to try." Federal Land Bank of Spokane v. Myhre (1940), 110 Mont. 416, 101 P.2d 1017. With regard to thematter of the DistrictCourt allowing the Coalition to amend its complaint from an action for a declaratory judgment to an injunction action, we find no
error. Rule 15,M.R.Civ.P., provides that leave to file an amended complaint should be liberally granted where justice so requires. Since this matter has been clearly injunctive in nature and the issues equitable since inception, theDistrict Court did not err in allowing the amendment nor was defendantprejudiced by such an act.



## v The next issue iswhether the District Court determined title to realproperty through an injunction. Hildreth correctly contends that title to realproperty cannot be determined in an action for an injunction. Davis

v. Burton (1952),126 Mont. 137, 246 P.2d 236. However,here the court did not determine title but rather the rightof the public to use the Beaverhead. As we held in Curran, supra, under the Public Trust Doctrine and the 1972Montana Constitution, any surface waters that are capable of recreational

use may be so used by the public without regard to streambed ownership or navigability for nonrecreationalpurposes. The District Courtproperly determined use of the Beaverhead,not title; thus,no error.

VI The sixth issue is whether the DistrictCourt erred in dismissing Hildreth's counterclaim for inverse condemnation against the Coalition. Hildreth's claim for inverse condemnation isbased upon the theory that there has been a taking of his land without compensation. Such is not the case. Public 

### - use of the waters and the bed and banks of the Reaverhead up to the ordinaryhighwatermark was determined,not title. In addition, the underlying theory of Hildreth's counterclaim is not founded in law. The legal rule is that a claim for inverse condemnation can lie only against a party which has power of eminent domain. Rauser v. Toston

### IrrigationDistrict (1977),172Mont. 530, 565 

### P.2d 632. The Coalition has no such power. The counterclaimwas properly dismissed.

VII The next issue raised by Hildreth is whether the District Court erred in severing the trial of the third-party complaint from the trial of thismatter. We hold.that it did not.. On February 10, 1982, an order was entered setting trial in this matter for March 17, 1982. The third-party complaint against the Montana Department of Fish, Wildlife and Parksand itsDirector,JimW. 

### Flynn,was not fileduntil March 4, 1982. 

### The District Court properly granted the motion for

severancepursuant to its discretionary authority under Rule 14, M.R.Civ.P., dealing with third-party practice. In a hearing on the motion, the court found that Hildreth's compl-aint, filed several days before against the third-party defendants, would entail a substantial period of time for pretrial discoverymotions and preps-ration 

### for trial. On the other hand, the Coalitionwas ready to proceed with trial in the matter. Further, the District Court found that the issues sought to 

### be raised by Hildreth in the third-party complaint were sufficiently different from those issues between Hildreth and the Coalition. We find no abuse of discretion in this ruling and,hence, no error.VIII 

### The eighth issue is whether Hil.drethhas been deprived of a property right by the District Court. We hold that he has not. As discussed previously in this opinion and extensively in Curran, supra,ownershipof the streambed is irrelevantto determination of public use of the waters for recreational purposes. Navigability for recreational use is limited, under the Montana Constitution, only by the capabilities of thewaters themselves for suchuse. Hildreth has never owned and does not now own the waters of the Beaverhead River. Under Montana law, the public has the right to use the Beaverhead and its bed and banks up to the ordinary high water mark, with additional, narrowly limited rights to portage around barriers.

IX 

### The last issue raised by Hildreth is whether it was
error for the District Court to use the Coalition's findings of fact and conclusionsof law virtually verbatim. We note, however, Hildreth concedes that reliance on the Coalition's findings of fact and. conclusions of law is not, in itself,

error. We furthernote that Hildreth does not argue that the findings and conclusi.onsare not supported by the evidence. Hildreth's claim of error appea-rsto be rooted in the District Court's failure tomake findings of fact and conclusions of lawwith regard to the Martin patent. Once again, Hildreth has confused the issues of navigability for title and navigability for recreational use. No finding with regard to title was necessary. Curran, supra.. Further, 

### a District Court

# ".

..will not be overturned simply because

### [it] relied upon proposed findings and conclusions submitted by counsel.

### " In re the Marriage of Kowis (Mont. 1983)

## , 658 P.2d 1084, 40 St.Rep. 149. Consequently,we find no error in the District Court's adoption of the Coalition's findings of factand conclusionsof lab.? virtually verbatim.

X 

### In summary,we hold the following: (1) The

### Reaverhead River isnavi.gablefor recreational purposes and the pub1i.chas a right to use itsbed and banks up to the ordinary high water mark with limited right to portage across private property in order to bypass ba-rriers in the waters. (2) Determination of navigability for title is not necessary or proper when the issue is one of navigability for

use. (3) 

### The public does not have the right to trespass over private property in order to rea.ch the State-owned waters. (4) Hildreth's motion todismiss and his request for a jury trial were properly denied. (5) 

### The District Court's ruling did not determine title to realproperty but rather the right of the public to use thewaters for recreationalpurposes. (6) 

### The District Court properly dismissed Hildreth's counterclaim for inverse condemnation and severed the thirdparty complaint from the trial of thismatter. (7) 

### The District Court committed no error in its virtualverbatim adoption of the Coalition's findings of fact and conclusions of law under the circumstances of this case. 

# ad?R 

# wy4b Chief Jus iceWe concur:

Justices

### Mr. Justice L. 

### C. Gulbrandson,dissenting.

I 

### respectfully dissent. The affirmation by this Court of the recreational use test in Curran, supra, and in this case, constitutes, in my view, a radical departure from the well-established public policy of the State of Montana. Public and private rights to use of waters have been acknowledged by this Court, and the legislature, since statehood. Recent sessions of the Montana Legislature have considered proposed solutions to perceived water use conflicts between landowners and recreational users, and there has been public evidence that a reasonable and legal solution could have been achieved within the legislative forum. The legislature has always had priority over this Court in fixing public policy, and I 

### would defer to that authority. Under previously established law, the defendant Lowell S. 

### Hildreth, would have been entitled to a trial by jury, ,/' 

### and I

### would reverse for thatpurpose.

Mr. Justice John Conway Harrison, dissenting.

While I 

### concurred in Curran, supra, fact wise 1 

### believe this case should have been heard before a jury and I 

### would reverse the District Court and send it back for trial. I 

### concur in the last two paragraphs of Justice Gulbrandson's dissent.