No. 82-448 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

WILLIAM GRIFFEL, 

P'laintiff and Appellant, 

-vsCOVE DITCH COMPANY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lee Overfelt; Overfelt Law Firm, Billings, Montana 

7 

For Respondent : 

Joseph M. Bradley, Laurel, Montana 

Submitted on Briefs: August 18, 1983 

Decided: January 5, 1984 

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

the Court. 

In an action for damages for crop loss with a counterclaim for injunctive relief, the Stillwater County District 

Court denied plaintiff damages and granted defendant injunctive relief against plaintiff. We modify the injunctive 

judgment and as modified, we affirm. 

In 1958 Griffel acquired certain farm property from 

James Anhin in Stillwater County, Montana. Included in the 

purchase was 39.18 shares of stock in the Yellowstone Ditch 

Company. Cove Ditch Company provides water to shareholders 

of Yellowstone pursuant to a contract dated January 25, 1906. 

The 1.906 contract required that the Yellowstone Ditch Company 

and all its shareholders turn over to the Cove Ditch Company 

the ownership, operation and maintenance of the old 

Yellowstone Ditch and a right-of-way along the entire length 

of the canal so Cove coul-d enlarge the canal to serve its own 

shareholders. In return, shareholders of Yellowstone would 

receive the amount of water they received prior to the contract free of charge. 

The contract obligates the Cove Ditch Company to use 

all proper diligence and reasonable care to keep the requisite amount of water flowing in the ditch, but specifically 

exempts Cove from furnishing such amount of water during 

periods of extreme low water in the Yellowstone River or when 

unavoidable accidents occur. The 1906 contract further 

obligates the Cove Ditch Company to maintain the level of the 

water in the ditch at the same height as in the old 

Yellowstone Ditch, so that the water could flow through the 

headgates of the Yellowstone shareholders as then located or 
as constructed after the date of the contract by mutual 

consent. 

The Cove Ditch Company employs a ditch rider or ditch 

superintendent to manage and operate the ditch, to maintain 

the ditch, and to adjust water diversion by shareholders in 

times of low water. Cooperation is required from all sha-reholders to ensure the availability of water. 

Since 1959 Griffel has attempted to irrigate a particular portion of his property higher in elevation than the 

ditch itself. Evidence indicates that this property had not 

been previously irrigated on a regular basis. 

Griffel has utilized two methods to irrigate this 

property. First of all, he placed a check or dam on the 

ditch to raise the level of water behind the check higher 

than normal-. This allowed water to flow to the higher lands 

by gravity. The check is constructed of several boards 

placed in the water vertically, supported by a horizontal log 

placed across the ditch. There is testimony that would 

indicate this method has not been used by any of Griffelfs 

predecessors. 

When Griffel used the check system, water would back up 

the ditch, increasing pressure therein and causing seepage 

through the banks. Also, the flow downstream would be reduced, affecting the irrigation of farms below the check. 

Cove's ditch superintendent is responsible for water 

delivery to shareholders of both Yell.owstone and Cove. 

Therefore, he would remove some of the boards in Griffel's 

check to improve the flow in the ditch. 

The second method by which Griffel would irrigate was 

by pumping. He would pump water to land both lower and 

higher than the ditch. This occurred without permission from 
Cove and sometimes this method was used simultaneousl-y with 

the check system. The ditch superintendent testified that he 

thought Griffel was pumping after he made his rounds attempting to conceal such activity. 

In his deposj-tion, Annin stated that his irrigation 

method was essentially by gravity flow and that he only 

attempted to pump to the higher lands on several occasions 

but it was ineffective. He further stated that he understood 

that pumping required separate permission from Cove. 

According to the 1906 contract, Griffel's 39.18 shares 

of Yellowstone stock entitles him to approximately 400 miners 

inches of water. Testimony indicates that by utilizing each 

method to irrigate higher lands, he was taking considerably 

more than his contractual allotment, especially when checking 

and pumping were simultaneous. 

It should be noted that on the concrete supports of the 

headgate, there are two marks, one above the other. The 

ditch superintendent testified that he never let the water 

level behind Griffel's check go below the lowest mark, usually it was left between the two marks. Frank Wodnik, a professional irrigation engineer, testified that if the water 

level was maintained at the lower mark Griffel would receive 

over 400 inches of water, even more if his lateral ditches 

were clean and unobstructed. This witness further testified 

that Griffel could irrigate all but two acres of the property 

in question with a water level set at the lower mark and 

properly maintained lateral ditches. 

Griffel brought the present action alleging that Cove 

had a duty to deliver him approximately 400 miners inches of 

water and has failed to do so. He argues that Cove has also 

failed to maintain the ditch and provide necessary water 
checks, pumps, power and equipment. Because of Cove's failure to perform its duty, Griffel contends that he has not 

been able to adequately irrigate his land between 1968 and 

1973, causing substantial crop loss. He alleges injury 

between these years. From 1974 to the present, Griffel has 

received sufficient water for irrigation. 

The action was initially brought in 1973 seeking damages in the amount of $20,000. Griffel's original counsel 

retired, and his new counsel filed an amended complaint on 

June 3, 1980, demanding $104,621 plus punitive damages. By 

stipulation the request for punitive damages was dropped. 

Cove subsequently filed a counterclaim and third party complaint against Grif fel and Yellowstone. The action against 

Yellowstone was dismissed. 

The case was tried on April 12 and 13, 1982, before the 

Honorable Diane G. Barz of the Thirteenth Judicial District. 

The District Court held that use of the check and open pipes 

and pumps to irrigate lands above and below the ditch results 

in a diversion of water in an amount greater than the 400 

miners inches allowed under the contract. This change in 

diversion and amount diverted is a violation of the 1906 

contract. The court further held that Cove has provided 

Griffel with water pursuant to the contract and thereby has 

not breached any of its duties to him under the 1906 

contract. 

The court enjoined Griffel from checking the ditch 

higher than the lowest mark on the headgate and from placing 

and removing the check without prior notice to Cove. He was 

further barred from pumping water from the ditch and irrigating lands above the ditch without prior consent and approval 

from Cove. 
From this ruling Griffel appeals and raises four issues 

for our consideration: 

1. Did the District Court err in determining that Cove 

did not breach any duties to Griffel according to the 1906 

contract and that it wa.s Griffel who violated the terms of 

the contract? 

2. Did the District Court err by prohibitin.9 Griffel 

from pumping without the consent and approval of Cove? 

3. Did the District Court err by prohibiting Griffel 

from irrigating land higher in elevation than the ditch 

without consent and approval of Cove? 

4. Did Griffel acquire a riqht to pump from Cove ditch 

by adverse possession? 

First, Griffel argues that the findings and conclusions 

of the District Court regarding the breach of contract are 

not supported by the evidence. Some are even contrary to 

undisputed evidence. 

Cove, on the other hand, contends that substantial 

evidence supports the finding that Griffel was never denied 

water and Cove did not cause him any crop loss. Further, 

there is substantial evidence indicating that Griffel received more than his contractual share of water when he used 

the check and pumped from the ditch. 

The scope of review for District Court findings and 

conclusions sitting without a jury is well settled in Montana. In Cameron v. Cameron (1978), 179 M0n.t. 219, 587 ~.2d 

939, reviewing this area of la.w, we stated: 

"'This Court's function in reviewing 

findings of fact in a civil action tried 

by the district court without a jury is 

not to substitute its judgment in place 

of the trier of facts but rather it is 

"confined to determining whether there is 

substantial credible evidence to support" 
the findings of fact and conclusions of 

law. Hornung v. Estate of Lagerquist, 

155 Mont. 412, 420, 473 P.2d 541, 546.' 

Olson v. Westfork Properties, Inc. 

(1976), 171 Mont. 154, 557 P.2d 821, 823, 

33 St.Rep. 1133. 

"Although conflicts may exist in the 

evidence presented, it is the duty of the 

trial judge to resolve such conflicts. 

His findings will not be disturbed on 

appeal where they are based on substantial though conflicting evidence, unless 

there is a clear preponderance of evidence against such findings. [Citations 

omitted.]" 587 P.2d at 944-945. 

On the question of substantial evidence, we have held: 

"'Substantial evidence' is evidence such 

'as will convince reasonable men and on 

which such men may not reasonably differ 

as to whether it establishes the [prevailing party's] case, and, if all reasonable men must conclude that the 

evidence does not establish such case, 

then it is not substantial evidence. ' 

Morton v. Mooney (1934), 97 Mont. 1, 33 

P.2d 262, 265; Staggers v. USF&G (1972), 

159 Mont. 254, 496 P.2d 1161, 1163. The 

evidence may be inherently weak and still 

be deemed 'substantial' and substantial 

evidence may conflict with other evidence 

presented. Campeau v. Lewis (1965), 144 

Mont. 543, 398 P.2d 960, 962." 587 P.2d 

at 944-945. 

With respect to determining the credibility of witnesses, we have ruled that determination of the weight given to 

the testimony is the primary function of the trial judge 

sitting without a jury and not that of this Court. 

at 945; Hellickson v. Barrett Mobile Home Transport, Inc. 

(1973), 161 Mont. 455, 507 P.2d 523. 

All of the above principles were reiterated in the 

recent case of Turley v. Turley (Mont. 1982), 649 P.2d 434, 

The present case is based upon the 1906 contract. 

Thus, in light of the principles stated above, we must determine whether there is substantial evidence supporting the 
District Court's interpretation of the contract and conclusions based thereon. 

The contract between Cove and Yellowstone provided that 

shareholders of Yellowstone would receive free water in 

proportion to their respective interest in Yellowstone in 

return for property rights allowing Cove to enlarge the 

existing ditch. The contract established a method by which 

the total flow rate could be calculated before expansion of 

the ditch. From this Yellowstone shareholders would receive 

their respective share of water. The total flow rate prior 

to enlargement was 3103.28 miners inches. Griffel had 39.18 

shares of Yellowstone stock which entitled him to approximately 400 miners inches of water. 

The District Court essentially found that by damming 

the ditch to a level higher than that of his predecessors and 

by irrigating high ground not historically irrigated Grif £el 

has increased the amount of water diverted in violation of 

the 1906 contract. The court also held that Griffel's rights 

are not impaired by limiting the level of water behind the 

check to the lower of the two marks on the concrete support. 

Finally, the District Court found that Cove has not breached 

any of its duties or responsibilities under the contract. 

We hold the District Court was correct in finding that 

Griffel had violated the terms of the contract by utilizing 

the check and pumps, as there is substantial evidence that he 

was taking considerably more than the 400 inches to which he 

was entitled under the contract. Also, we hold that the 

court was correct in finding Cove did not violate the terms 

of the contract, as there is substantial evidence that Cove 

supplied Griffel at all times with his allotment of water. 
As previously mentioned, the testimony of Frank Wodnik 

indicates that Griffel's diversion system could carry over 

400 inches of water when the ditch is checked to the lower 

mark, if his lateral ditches were properly maintained. In 

fact, with properly maintained ditches, he could irrigate all 

of the property in question except two acres with 400 inches 

of water. Wodnik further testified that backing the water up 

to the highest mark provides Griffel with substantially more 

than 400 miners inches. 

Wes Thatcher, ditch superintendent for Cove, testified 

that he never lowered the water level below the lower mark on 

the concrete supports which provides enough water to flow 

into Griffel's diversion pipes. He also stated that most of 

the time he allowed the water level to be maintained between 

the higher and lower marks. His testimony further indicates 

that Griffel was never denied water and that when he backs 

the water up to the higher mark, Griffel gets 500 inches or 

better. 

Jim Meyers leased the property in question from Annin 

during the years immediately preceding Griffel's purchase of 

such property. He testified that Cove had never denied him 

water nor caused him any crop loss. 

The above testimony is substantial evid-ence supporting 

the District Court's conclusion that Griffel, through his 

irrigation methods, was taking more water than allotted to 

him in the contract, thus violating the contract. The above 

testimony also supports the conclusion that Cove did not 

breach any duties owing to Griffel. 

We recognize that there is conflicting evidence that 

does not support the District Court's conclusions. However, 

we will not sit in the place of the District Court and 
resolve such conflicts. Moreover, such conflicting evidence 

does not form a preponderance supporting a contrary 

conclusion. 

Next Griffel contends that the contract does not provide that flood irrigation be the sole method of irrigation. 

Hence, as long as Griffel only diverts his 400 inches of 

water, his actual method of diversion is immaterial under the 

contract and the District Court erred in prohibiting him from 

pumping without Cove's consent. 

Cove argues that restrictions on Griffel's practices 

are reasonable and do not deprive him of his proper share of 

water. In fact, checking the ditch to the lower mark allows 

Griffel to receive at least 400 inches of water by flood 

irrigation; thus, there is no error in prohibiting Griffel 

from pumping. 

Resolution of this issue depends upon whether according 

to the contract or Montana law Griffel can change his method 

of diversion. First, the contract does not specifically 

establish a method for shareholders to utilize to divert 

their share of water from the ditch. Any term that arguably 

implies such conclusion would possibly reflect the state of 

the art in 1906 but does not create a covenant in this regard. Further, the existing law at the time Griffel alleges 

injury did not prohibit a change in the method of diversion 

but prohibited a change in point of diversion or change of 

use that could injure other appropriators. Section 89-803, 

R.C.M. 1947; see e.g., Thompson v. Harvey (1974), 164 Mont. 

133, 519 P.2d 963. 

We hold that Griffel should not be prohibited from 

pumping his entitlement from Cove Ditch. The contract unconditionally allows Griffel 400 miners inches of water and he 
should be able to divert such water by whatever method is 

most feasible for his purposes. A contrary interpretation 

would foreclose utilization of future technological advances 

in water diversion and irrigation techniques. Thus, as long 

as he only takes his contractual allotment of water, Griffel 

should not be prohibited from pumping from the ditch, and the 

District Court erred in so ruling. 

Griffel also argues that the District Court erred by 

prohibiting him from irrigating acreage above the canal. The 

contract does not speak to what acreage can be irrigated. 

Cove asserts that those lands have not historically 

been irrigated and doing so requires more water than Griffel 

is entitled to. This, in effect, deprives shareholders 

downstream of their fair sha.re of water. 

As with the method of diversion, there is no provision 

in the contract indicating what land a shareholder can irrigate. Further, a change in use of water, under then existing 

law, was allowable under section 89-803, R.C.M. 1947. However, such change could not injure the rights of others. 

Thompson, supra; Spaeth v. Emmett (1963), 142 Mont. 231, 383 

P.2d 812; McIntosh v. Graveley (1972), 1.59 Mont. 72, 495 P.2d. 

186; Thrasher v. Mannix & Wilson !1933), 95 Mont. 273, 26 

P.2d 370; Lokowich v. City of Helena (1913), 46 Mont. 575, 

129 P. 1063; Hansen v. Larsen (1911), 44 Mont. 350, 120 P. 

229. 

In this case, the evidence showed that Griffel was 

trying to irrigate land that had not historically been irrigated. In essence, he was attempting to change the use of 

his water. Furthermore, his lateral ditches taking in diverted water were in such condition tha.t to irrigate the 

a-creage in question he was required to take a quantity of 
water greater than his contractual allocation. This wa.s 

accomplished by using the check or by pumping. Frank Wodnik 

testified that these lands could only be irrigated by damming 

the water up to the highest mark on the headgate. In sum, 

this change of use would require Griffel to take more water 

than he was entitled. 

Moreover, there is substantial evidence to support the 

District Court finding that the use of the check to dam the 

water to the highest mark deprives downstream users from 

water. Phillip Fox, farmer and a member of Cove's board of 

directors stated that when "Griffel puts his check in, the 

water drops in the ditch behind the check, and everybody down 

the line, especially the lower end, they don't get any 

water. " 

Injury is also caused to landowners upstream when 

Griffel uses the check. Thatcher testified that the increased pressure on the ditch caused by backed up water 

behind the check causes seepage into the property of upstream 

landowners. 

We hold that the testimony discussed above is substantial evidence supporting the District Court's finding that 

Griffel's changed use (irrigating acreage higher that the 

ditch) causes injury to other water users by checking the 

ditch higher than normal a.nd pumping water in excess of his 

entitlement. Consequently, the District Court did not abuse 

its discretion by prohibiting Griffel from irrigating property situated above the canal to the extent where he would 

misuse the check or pump or divert more than 400 inches of 

water. The District Court, however, cannot prevent irrigation of acreage higher than the canal if Griffel only diverts 

his contractual entitlement of 400 miners inches. 
Finally, Griffel argues that he acquired a right to 

pump out of the ditch by prescription. This issue is moot 

since we have decided that as long as he only diverts his 

contractual allotment of water, he cannot be prohibited from 

pumping from the ditch. 

We modify the District Court judgment to allow Griffel 

to pump from the ditch and to irrigate acreage higher than 

the ditch so long as he takes no more than his contractual 

allotment. As so modified, the judgment of the District 

Court is affirmed. 

sdM(!14& Chief Justice 

We concur: