NO. 83-174 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THE MONTANA COALITION FOR STREAT4 ACCESS, 

INC., a Montana non-profit corp., 

Plaintiff and Respondent, 

-vsLOWELL S. HILDRETH, 

Defendant and ~hird Party 

Plaintiff and Appellant, 

THE STATE OF PlONTANA, MONTANA DEPARTMENT OF 

LAIJDS , GARETH MOON, COI~ll!IISSIONER OF FlOZJTRNA 

DEPARTMENT OF LAXDS; MONTANA DEPARTMENT OF 

FISH, WILDLIFE AND PARKS, and JIM W. FLYNN, 

DIRECTOR OF PlONTANA DEPARTFIENT OF FISII, 

WILDLIFE AND PARKS, 

Third Party Defendants and 

Respondents. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Jack D. Shanstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kirwan & Barrett; Peter M. Kirwan argued for 

Hildreth, Bozeman, Montana 

For Respondents: 

Goetz, Madden & Dunn; James 11. Goetz argued for 

Mont. Coalition for Stream Access, Bozeman, Montana 

John F. North & Lyle Manley, Dept. of State Lands, 

Helena, Montana 

Stanley Bradshaw, Dept. of Fish, Wildlife & Parks, 

Helena, Flontana 

For Amicus Curiae: 

Christine C. Parker, American Farm Bureau, Dillon, 

Montana 

J.H. Morrow for Montana Farm Bureau Federation & 

Wyoming Farm Bureau Federation, Bozeman, Montana 

Daniel C. Murphy for Mont. Stockgrowers & Wool Growers 

Assoc., Helena, Montana 

Vincent J. Kozakiewicz for Nat'l Wildlife Assoc. & 

Mont. Wildlife Assoc., 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 ,; . :984 

Filed: C 

%# 4- Clerk 
Mr. 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 

the matter of a permanent injunction, the District Court held 

that the Beaverhead River is navigable for recreational use 

and that the public has a. right of access up to the ordinary 

high water mark without interference from appellant Hildreth. 

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 to Montana'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 Jefferson River. 

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 through Hildreth's property. 

The Coalition filed a motion for preliminary 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-dreth filed an answer, demand for jury trial and 

thi-rd-party complaint 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, on March 21, 1982, granted 

the Coalition's motion 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 court dismissed 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 a permanent 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 high water mark. 

I 

The following issues have been ra.ised on appeal: 

1. Whether the public has a right to use the 

Reaverhead River for recreational purposes. 
2. Whether determination of 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 it was error to deny Hildreth a. jury trial. 

5. Whether the District Court 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 this matter. 

8. Whether Hi1dret.h has been deprived of a property 

right as a result of the District Court's ruling. 

9. Whether it was error to adopt the Coalition's 

findings of fa.ct and conclusions of law virtually verbatim. 

The first issue is whether the public has the right to 

use the Beaverhead River for recreational purposes. 

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.g a 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 clearly provides 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 their use by 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.tro1 the use of those 

waters as they flow through his property. The public has the 

right to use the waters and the bed and banks up to the 

ordinary high wa.ter mark. Curran, supra. Further, as we 

held in Curran, in case of barriers, 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 over private property 
to reach the State-owned waters held available for recreational purposes. 

The second issue is whether determination of ownership of 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 conclusions of law wj-th 

rega.rd to the Martin patent. 

Hildreth maintains that the patent gave his 

predecessor-in-title, and su.bsequently himself, 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 case now before us. 

Further, other jurisdictions have determined recreational use without regard to the question of ownership of the 

underlying bed. As in the matter now before 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 navigational rights, nor 

vice-versa. (Forestier - v. Johnson, 164 
Cal. 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., isuDra, 528 P.2dPat D. 129 

v. Gallaaher. 77 Wa.sh.2dL 306. 

J. L 

; Southern 

Livestock, 

8; Wilbour 

- ..d 

462 P.2d 

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 conclusions of 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 trial were properly denied. 

Hildreth argues that since this matter was brought 

originally under the Declaratory Judgments Act, he contends 

tha.t a declaratory judgment action is inappropriate in this 

matter and that the District Court erred in not dismissing 

this matter. 

Hildreth further argues that althouqh this action was 

original-ly brought 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 Declaratory Judgments Act. 

The Coalition responds that while the action was 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 always been injuncti~re in 

nature. 

Hildreth's position on these issues is inconsistent. 

First he argues that the declaratory judgment action should 

have been dismissed because it was inappropriate, but he also 

contends that the court should not have allowed plaintiff to 

amend its complaint because it deprived him of his right to a 

jury trial under the Declaratory Judgments Act. He appears to 

have been demanding a jury trial in an action which he contends should never have been tried. 

To begin 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 the matter of the District Court 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, the 
District Court did not err in allowing the amendment nor was 

defendant prejudiced by such an act. 

v 

The next issue is whether the District Court determined 

title to real property through an injunction. 

Hildreth correctly contends that title to real property 

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 right of the 

public to use the Beaverhead. As we held in Curran, supra, 

under the Public Trust Doctrine and the 1972 Montana 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 nonrecreational purposes. The 

District Court properly determined use of the Beaverhead, not 

title; thus, no error. 

VI 

The sixth issue is whether the District Court erred in 

dismissing Hildreth's counterclaim for inverse condemnation 

against the Coalition. 

Hildreth's claim for inverse condemnation is based 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 

ordinary high water mark 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 
Irrigation District (1977), 172 Mont. 530, 565 P.2d 632. The 

Coalition has no such power. The counterclaim was 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 this matter. 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 Parks and its Director, Jim W. Flynn, was not filed until 

March 4, 1982. 

The District Court properly granted the motion for 

severance pursuant 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 discovery motions and preps-ration for trial. On the 

other hand, the Coalition was 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.dreth has 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, ownership of the streambed is irrelevant to 

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 

the waters themselves for such use. 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 conclusions of 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 further note that Hildreth does not argue that the 

findings and conclusi.ons are not supported by the evidence. 

Hildreth's claim of error appea-rs to be rooted in the 

District Court's failure to make findings of fact and conclusions of law with 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 

fact and conclusions of lab.? virtually verbatim. 

X 

In summary, we hold the following: 

(1) The Reaverhead River is navi.gable for recreational 

purposes and the pub1i.c has a right to use its bed 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 to dismiss and his request for a 

jury trial were properly denied. 

(5) The District Court's ruling did not determine 

title to real property but rather the right of the public to 

use the waters for recreational purposes. 

(6) The District Court properly dismissed Hildreth's 

counterclaim for inverse condemnation and severed the thirdparty complaint from the trial of this matter. 

(7) The District Court committed no error in its 

virtual verbatim adoption of the Coalition's findings of fact 

and conclusions of law under the circumstances of this case. 

ad?R wy4 b 

Chief Jus ice 
We 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 that purpose. 

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.