No. 82-448 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1983

WILLIAM GRIFFEL, P'laintiffand Appellant,

-vsCOVE DITCH COMPANY, Defendantand Respondent.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, Inand for the County of Stillwater, TheHonorable DianeG. Barz,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: LeeOverfelt;Overfelt Law Firm,Billings,Montana

7 ForRespondent: JosephM. Bradley, Laurel, Montana

Submitted on Briefs: August 18, 1983 Decided: January 5,1984

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. In an action fordamages for crop losswith a counterclaim for injunctive relief, the Stillwater County District Court denied plaintiff damages and granted defendant injunctive relief against plaintiff. We modify the injunctive judgmentand 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 Yellowstonepursuant to a contractdated January 25, 1906. The 1.906contract 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-denlarge 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 lowwater in the YellowstoneRiver orwhen unavoidable accidents occur. The 1906 contract further obligates the Cove DitchCompany tomaintain 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 shareholdersas then located oras 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 lowwater. Cooperation is required from all sha-reholders to ensure the availability ofwater. Since 1959 Griffelhas attempted to irrigateaparticular portion of his property higher in elevation than the ditch itself. Evidence indicates that thisproperty had not been previously irrigated on a regularbasis. 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, supportedby ahorizontal log placed across the ditch. There is testimony that would indicate this method has not been used by any of Griffelfs predecessors. When Griffelused the check system, waterwould 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 theditch. The second method by which Griffel would irrigate was by pumping. He would pump water to land both lower and higher than theditch. Thisoccurredwithout permission fromCove and sometimes this method was used simultaneousl-ywith the check system. Theditch superintendenttestified thathe thoughtGriffelwaspumping afterhemade 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 itwas ineffective. He further stated thathe understood that pumping required separate permission fromCove. According to the 1906 contract,Griffel's 39.18 shares of Yellowstone stock entitleshim to approximately 400 miners inches of water. Testimony indicates that by utilizing each method to irrigate higher lands, he was taking considerably

more thanhis contractual allotment, especially when checking andpumping 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 levelbehind Griffel's check go below the lowestmark,usually it was left between the twomarks. Frank Wodnik, a professional irrigation engineer, testified that if the water levelwas maintained at the lower mark Griffel would receive

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

were clean and unobstructed. Thiswitness further testified that Griffel could irrigate allbut two acres of theproperty in question with a water level set at the lower mark and properly maintained lateralditches. 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 waterchecks, 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 actionwas initiallybrought 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 Griffel and Yellowstone. The action against Yellowstonewasdismissed. The case was tried onApril 12 and 13, 1982, before the Honorable Diane G. Barz of the Thirteenth JudicialDistrict. The DistrictCourt held that use of the check and open pipes andpumps 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 fromplacing and removing the check without prior notice to Cove. He was furtherbarred frompumping water from the ditch and irrigating lands above the ditch without prior consent and approval fromCove.From this ruling Griffel appealsand raises four issues for our consideration: 1. Did the DistrictCourt err in determining thatCove did not breach any duties to Griffel according to the 1906 contract and that it wa.sGriffel who violated the terms of the contract? 2. Did the District Court err by prohibitin.9Griffel from pumping without the consentand approval of Cove? 3. Did the District Court err by prohibiting Griffel from irrigating land higher in elevation than the ditch without consentand approvalofCove? 4. Did Griffel acquirea riqht to pump fromCoveditch by adverse possession? First,Griffel argues that the findingsand 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 ofwaterwhen 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 Cameronv. 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 todeterminingwhether 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 'aswill 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 evidencemay be inherently weak and still be deemed 'substantial' and substantial evidencemay conflict with other evidence presented. Campeauv. Lewis (1965), 144 Mont. 543, 398 P.2d 960, 962." 587 P.2d at 944-945. With respect todetermining 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),161Mont. 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 lightof the principles stated above,wemust determine whether there is substantial evidence supporting theDistrict Court's interpretation of the contract and conclusionsbased thereon. The contractbetween Coveand Yellowstoneprovided 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 shareholderswould receive their respective share of water. The total flow rate prior to enlargementwas 3103.28 miners inches. Griffel had 39.18 shares of Yellowstone stock which entitled him to approximately 400miners inchesofwater. The District Court essentially found that by damming the ditch to a levelhigher than thatofhispredecessorsand by irrigatinghigh ground not historically irrigated Grif£el has increased the amount of water diverted in violation of the 1906contract. The court alsoheld thatGriffel's rights

are not impaired by limiting the level of water behind the check to the lower of the twomarks 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 DistrictCourtwas correct in finding that Griffel had violated the terms of the contractby utilizing the check andpumps,as there is substantial evidence thathe

was taking considerably more than the 400 inches towhich 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 irrigateall of the property in question except two acreswith 400 inches ofwater. Wodnik furthertestified that backing the water up to the highest mark provides Griffel with substantially more than 400miners inches. Wes Thatcher,ditch superintendent for Cove, testified thathe never lowered thewater level below the lower mark on the concrete supports which provides enough water to flow into Griffel's diversionpipes. He also stated that most of the time he allowed thewater level to be maintained between the higher and lowermarks. 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 immediatelypreceding Griffel's purchase of such property. He testified that Cove had never denied him waternor causedhim any crop loss. The above testimony is substantial evid-encesupporting 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 toGriffel. We recognize that there is conflicting evidence that does not support the DistrictCourt's conclusions. However,

we will not sit in the place of the District Court andresolve 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 Courterred inprohibitinghim 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 lowermark allows Griffel to receive at least 400 inches of water by flood irrigation; thus, there is no error in prohibiting Griffel frompumping. Resolution of this issue depends upon whether according to the contract orMontana law Griffel can changehismethod 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 fromCove Ditch. The contract unconditionally allows Griffel 400 miners inches of water and heshould 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 notbe 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.reof water. As with the method of diversion,there is no provision in the contract indicatingwhat land a shareholdercan irrigate. Further, a change inuse ofwater, 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), 142Mont. 231, 383 P.2d 812;McIntosh v. Graveley (1972),1.59Mont. 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.tto irrigate the a-creagein question he was required to take a quantity ofwater greater than his contractual allocation. This wa.s accomplished by using the check or by pumping. Frank Wodnik testified that these lands could onlybe irrigatedby 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 hewas 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 ditchbehind 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 theproperty ofupstream 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.ndpumping water in excess of his entitlement. Consequently, the District Court did not abuse itsdiscretionby prohibiting Griffel from irrigatingproperty 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 entitlementof 400miners 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 cannotbe prohibited from pumping from theditch. 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: