NO. 81-413 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

COLLEEN N. BAGNELL, 

Plaintiff and Appellant, 

VS. 

CHARLES J. LEMERY, 

DANIEL LEMERY et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morales, Volinkaty and Harr, Missoula, Montana 

For Respondents: 

Turnage & McNeil, Polson, Montana 

Submitted on briefs: December 11, 1981 

~~~id~d: January 27, 1983 

Filed: JAN 2 7 1983 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintif £/appellant initiated this action seeking to enjoin 

defendant/respondent from interfering with the water flow in 

Ashley Creek in Lake County, Montana, and to adjudicate the water 

rights of the parties. The District Court of the Fourth Judicial 

District in and for the County of Lake, found defendants to have 

a senior water right of 178 acre feet per year and a priority 

date of 1917 and plaintiff to have a junior water right limited 

to defendants1 surplus. Plaintiff appeals. 

Defendants are owners of real property situated in Lake 

County, north of St. Ignatius, Montana, described as the ~~44, 

Section 31, Township 19 North, Range 19 West, M.P.M. Plaintiff 

is the owner of real property adjacent to defendants1 northwest 

boundary line described as the ~~44, SE44 , Section 25, Township 19 

North, Range 20 West, M.P.M. This case involves water from 

natural springs located west of defendants' property on land 

owned by Therin Mahle. The water from the Mahle Springs flows 

through defendants1 land and into Ashley Creek and then Ashley 

Creek flows from defendants' land onto plaintiff's land. 

Defendants' predecessors in interest began using the water 

from the Mahle Springs in 1917 as domestic water for the family 

home, water for a "duck pond" used in raising domestic fowl for 

commercial purposes, stock water for raising cattle, horses and 

pigs, and for irrigation of their 160 acre tract. Defendant 

Lemery testified there had been a continuous beneficial use of 

water on the defendants' land in the amount of 110 gallons per 

minute or 178 acre feet per year since 1917. In 1956 defendants 

began construction of an ASC approved dam to impound the spring 

water. The dam was completed in 1958. The purpose of the dam 

was to stabilize defendants' water supply and defendants claim no 

increase in the amount of their water right via the construction 

of the dam. The water impounded by the dam has been used for 

flood irrigating approximately 60 acres of defendants' land, 
sprinkler irrigating the full 160 acres of defendants' land, 

stock water for cattle, and a commercial fish operation. On 

April 3, 1973, defendant Lemery filed a notice of completion of 

ground water appropriation without well, claiming 110 gallons per 

minute. Defendant estimated 110 gallons per minute equaled 15 

acre feet of water used per year. Plaintiff's predecessor began 

using water from Ashley Creek in 1957 for stock water. 

Plaintif f 's predecessor tes ti£ ied that at times Ashley Creek 

would become completely dry and she would approach defendant 

Lemery and aslc him to release water from his dam which he would 

do. Plaintiff purchased her property in 1974 and on May 17, 

1978, plaintiff obtained a water use permit for Ashley Creek 

from the Montana Department of Natural Resources. The permit 

states plaintiff Is use is subject to all prior appropriations. 

In 1978, defendant Lemery refused to release additional water 

to plaintiff. Plaintiff then initiated this action in the Fourth 

Judicial District, Lake County, to adjudicate the parties' water 

rights and to enjoin defendants from interfering with the tributary waters of Ashley Creek. On July 1, 1981, the District Court 

filed its findings of fact, conclusions of law, judgment and 

decree nunc pro tunc. The District Court found defendants to 

have a superior water right of 110 gallons per minute or 15 acre 

feet per year. The District Court further found plaintiff is 

only entitled to any surplus water over and above defendants' 

rights. Plaintiff appealed. On April 1, 1982, this Court 

remanded the case back to the District Court for further findings. On July 7, 1982, the District Court filed second amended 

findings of fact, conclusions of law, judgment and decree. The 

District Court found defendants to have a right to 110 gallons 

per minute which actually equals 178 acre feet per year with a 

priority date of 1917 and found plaintiff 's rights limited to any 

available water in Ashley Creek or any surplus water from 

defendants' dam. Plaintiff appeals. 

The issues raised on appeal are as follows: 
1. Whether the District Court failed to comply with this 

Court's remand for further findings. 

2. Whether the District Court erred in holding that 

defendants1 water rights are superior and prior in time to 

plaintiff Is. 

3. Whether the District Court erred by granting defendant an 

excessive appropriation of water. 

4. Whether the traditional policy cons iderations of Montana 

water law justify the finding that defendants have beneficially 

applied their appropriation. 

On April 1, 1982, this Court remanded this case for further 

findings to determine the amount of the 1917 water right, the 

extent to which the water right was changed by virtue of the 1956 

dam construction, and the further extent, if any, of a change as 

a result of a usage since 1961. In the District Court's second 

amended findings of fact, conclusions of law, judgment and 

decree, the District Court made findings that: defendant had 

made continuous beneficial use of the water from the springs in 

the amount of 110 gallons per minute or 178 acre feet per year; 

the defendants claim no increase in the quantum of their present 

water right by reason of the completion of their ASC approved dam 

in 1958 above the 1917 water right; and the commercial fish farm 

created an additional beneficial use since 1961, but required no 

increase in their water rights. 

Plaintiff contends the District Court failed to comply with 

our remand for further findings. However, the District Court 

addressed each factual determination requested in this Court Is 

order of April 1, 1982. This Court has stated several times: 

"Our function on appeal in reviewing findings of fact is not to 

substitute our judgment for that of the District Court, but 

rather to determine whether there is substantial evidence to support the lower court's findings." Shanahan v. Universal Tavern 

Corporation (1978), 179 Mont. 36, 585 P.2d 1314, 1316. We find 

the District Court s findings were supported by substantial evi- 
dence which was presented at the hearing of June 16 and 17, 1982. 

Plaintiff has not presented sufficient evidence found in the 

record which would preponderate against the District Court Is findings. We, therefore, find the District Court did comply with 

this Court's remand for further findings. 

Prior to the 1973 Water Use Act one could acquire a water 

right by complying with the applicable statutes at the time or by 

simply putting the water to a beneficial use. This was the 

result of this Court's holding in Murray v. Tingley (1897), 20 

Mont. 260, 50 P. 723. In Bailey v. Tintinger (1912), 45 Mont. 

154, 122 P. 575, this Court commented upon Murray, supra, 

stating: 

"In Murray v. Tingley, 20 Mont. 260, 50 Pac. 

723, this court had before it the single 

quest ion: Can a person make a valid 

appropriation of water af ter the statute of 

1885 went into effect, without complying with 

the statute? After citing De Necochea -- v. 

Curtis and Wells v. Mantes, ayd otlng the .---- 

language f ram'-the-former opinion which we 

reproduce above, this court said: 'We think 

the construction of the statute by the supreme 

court of California is logical and correct, 

and are of the opinion that the Montana Act 

[of 18851 should be construed in the same 

manner. That the conclusion reached by the 

California court in each of those cases, as 

well as the conclusion of this court in Murray 

- v. - Tingley, is correct, does not admit of 

argument. Section 1419, California Civil Code 

(Mont. Rev. Codes, sec. 4849), clearly recognizes a right which one may acquire to the use 

of water without complying with the statute, 

and that such right shall be good as against 

everyone except an appropriator who complies 

with the statute before the first claimant has 

actually completed his work and applied the 

water to a beneficial use ." 45 Mont. at 168. 

Plaintiff argues in the present case both parties failed to 

comply with section 89-810, R.C.M. 1947, thus, her right is 

prior to defendants' because her predecessor began using water in 

Ashley Creek in 1957 and defendants did not complete their dam of 

the Mahle Spring water until 1958. Plaintiff contends had defendants complied with the notice requirements, they would have been 

able to obtain a priority date of 1956 via the Relation Back 

Doctrine defined in section 89-812, R.C.M. 1947, the applicable 

statute at that time. 
However, the District Court found defendants had made a continuous beneficial use of the Mahle Spring water since 1917. 

Defendants do not contend their water right increased by the 

construction of the dam between 1956 to 1958, but rather, they 

claim the dam merely stabilized defendantsf water and made it 

available at later and drier times of the year. Thus, defendants 

have a priority date of 1917 which is when their predecessors 

first began to make a beneficial use of the spring water. 

Plaintiff further contends the doctrines of equitable estoppel and laches bar defendants from asserting a superior water 

right. The elements necessary to establish estoppel in a water 

rights case were defined in Smith v. Krutar (1969)r 153 Mont. 

325, 457 P.2d 459. However, this Court has ruled previously, 

estoppel arises when a party by his acts, conduct or 

acquiescence, has caused another in good faith to change his 

position for the worse. Smith v. Krutar, supra; Hustad v. Reed 

(1958) , 133 Mont. 211, 223, 321 P.2d 1083. Here, defendants did 

not cause plaintiff's predecessor to change her position for the 

worse as defendants had already established a valid use right to 

the spring water. As stated above, defendants1 use began in 1917 

and did not increase af ter the construction of the dam, thus 

plaintiff would not have obtained a right superior to defendants' 

had she sought adjudication in 1957 or any time thereafter. 

Defendants' action to release water out of the dam was either a 

mere gratuity or transfer of surplus water. In either case 

plaintiff's predecessor could have done nothing to improve her 

pos it ion. 

Plaintiff also claims the doctrine of laches should be 

applied to establish plaintif f's superior right. In Montgomery 

v. Bank of Dillon (1943), 114 Mont. 395, 136 P.2d 760, this Court 

stated: "Laches means the negligence or omission to seasonably 

assert a right . . . and it exists when there is an unexplained 

delay of such duration or such character as to render enforcement 

of an asserted right inequitable." 136 P.2d at 766. Plaintiff 
claims defendants' release of the dam water constituted negligent 

disregard for their own property. However, there were no findings nor was there any evidence at trial which would show the 

release was not simply a release of surplus water. In the 

absence of evidence, this Court cannot apply laches in this case. 

Plaintiff next argues the District Court awarded defendants 

an excessive appropriation of water because the award is greater 

than the capacity of defendants' reservoir. Plaintiff relies on 

Whitcomb v. Helena Water Works Co. (1969), 151 Mont. 443, 444 

P.2d 301. However, Whitcomb is distinguishable from the case at 

hand. In Whitcomb, the city of Helena had first right to 550 

miner's inches of water from Ten Mile Creek. The city's pipeline 

was only able to carry 225 miner's inches at the time of the 

original decree in 1903. After the original decree the city 

built a system of storage reservoirs. During the dry season the 

city would divert water from the tributaries to make up for loss 

and evaporation and to keep a certain amount of water moving 

through the reservoir. The city's action worked to deprive prior 

downstream appropriators of the full or even partial use of their 

decreed rights. This Court held the city could not continue to 

store water when it would cut off other users who had prior 

rights. 

In the present case a different situation develops. 

Defendants built and maintained a reservoir to stabilize their 

water supply and to operate a commercial fish farm. The record 

shows the reservoir is filled in the spring when runoff is at its 

peak. This practice was praised by this Court in Federal Land 

Bank v. Morris (1941), 112 Mont. 445, 116 P.2d 1007; "It comes 

back to nothing else but that old principal that 'he who saves 

something that would otherwise be lost is not only to be protected in what he has saved, but commended for so doing. "' It 

appears that defendants use the water in the reservoir as a focal 

point of their irrigation system as well as for their commercial 

fish farm. The District Court decreed that defendants shall have 
the right to use the water from the Mahle Springs at the rate of 

110 gallons per minute. Plaintiff contends this rate is 

excessive in that it allows defendants multiple fillings of their 

reservoir. We disagree. The defendants have shown the prudence 

to catch the spring run-off to fill their reservoir. After the 

reservoir has been filled in the spring, defendants have a 

decreed right to retain the incoming spring water at the rate of 

110 gallons per minute. This does not constitute a double 

filling of the reservoir. Any excess over 110 gallons per minute 

must be allowed to pass through the reservoir and onto 

plaintiff's property. This is the essence of the District 

Court's decree and we find no error in such a ruling. 

Lastly, plaintiff claims traditional policy considerations do 

not justify the finding that defendants have applied their 

appropriation to a beneficial use. Plaintiff contends the fact 

that defendants released water to plaintiff 's predecessor when 

requested is evidence of the fact that defendants had more water 

than they could beneficially use. However, the District Court 

made specific findings as to the uses which defendants made of 

the spring water: flood irrigation, sprinkler irrigation, commercial fish farm, stock water and domestic use. This Court 

generally allows one miner's inch to irrigate each acre of land 

unless "evidence discloses that a greater or lesser amount is 

required." Conrow v. Huffine (1914), 48 Mont. 437, 138 P. 1094. 

The District Court awarded defendants 110 gallons per minute to 

irrigate 160 acres. Even twelve miner's inches (134 gallons per 

minute), the amount of water for irrigating twelve acres, exceeds 

the amount decreed by the trial court. (One miner's inch equals 

11.23 gallons per minute .) Thus, all the evidence indicates 110 

gallons per minute is clearly justified. 

Judgment is af f irmed . 
We concur: