NO. 81-413
INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

COLLEEN N. BAGNELL, Plaintiff and Appellant,

VS. CHARLES J. LEMERY, DANIEL LEMERY etal., 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

## 271983Mr. 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 inLake County, Montana, and to adjudicate the

### water rightsof the parties. The District Court of the FourthJudicial District inand 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 

### todefendants1surplus. Plaintiff appeals. Defendants are owners of real property situated in Lake County, north of St. Ignatius, Montana, described as the ~~44, Section 31, Township 19North, Range 19West, M.P.M. Plaintiff is the owner of real property adjacent to defendants1northwest 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 asdomestic 

### 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 110gallons per minute 

### or 178acre feetper year since 1917. In 1956defendants 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 stabilizedefendants' water supplyand 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 appropriationwithout well, claiming 110gallons 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. Plaintiff's predecessor testi£ 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 statesplaintiffIsuse is subject to allprior appropriations. In 1978, defendantLemery refused to release additional water toplaintiff. 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 tributarywaters 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 superiorwater right of 110gallons per minute or 15acre 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 feetper year with a prioritydateof 1917and found plaintiff'srights limited 

### to any available water in Ashley Creek 

### or any surplus water from defendants' dam. Plaintiff appeals. The issuesraised on appeal are asfollows:1. Whether the District Court failed 

### to comply with this Court's remand forfurtherfindings. 2. Whether the District Court erred in holding that defendants1 

### water rights 

### are superior and prior in 

### time to plaintiffIs. 3. Whether theDistrict Court erred bygranting defendant an excessive appropriationof 

### water. 4. Whether the traditional policy considerations of Montana water lawjustify the finding that defendants have beneficially applied theirappropriation. 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 byvirtue 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 110gallons per minute 

### or 178 acre feet

### per year; the defendants claimno increase inthe quantum of theirpresent 

### water rightby reason of the completionof theirASC approved dam in 1958above the 1917water right; and the commercial fishfarm created an additional beneficial use since 1961, but required no increase intheirwater 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 CourtIs order of April 1, 1982. This Court has stated several times: "Our function on appeal inreviewing findingsof fact is not to substitute our judgment for that of the District Court, but rather to determinewhether there is substantialevidence 

### to support the 

### lower court's findings." Shanahan v. Universal Tavern Corporation (1978), 179Mont. 36, 585 P.2d 1314, 1316. We find the 

### District Court 

### s findings were supported by substantial evi-dencewhich waspresented atthehearing of June 16and 17, 1982. Plaintiff has not presented sufficient evidence found in the record which would preponderate againstthe District CourtIsfindings. We, therefore, find the District Court did comply with thisCourt's remand for furtherfindings. Prior to the 1973 Water Use Act one could acquire a 

### water rightby complyingwith the applicable statutesatthe 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 1885went 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 constructionof the statuteby 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 

### wellas the conclusionof thiscourt inMurray v. Tingley, is 

### correct, does not admit of - - argument. Section 1419, California CivilCode (Mont. Rev. Codes, 

### sec. 4849), clearlyrecognizes a rightwhich onemay 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 statutebefore the firstclaimanthas actually completed his work and applied the 

### water to a beneficial use

# ." 45Mont. at168. Plaintiff argues in the present case both parties failed 

### to comply with section 89-810, R.C.M. 1947, thus, her right is priortodefendants' because herpredecessor began using water in Ashley Creek in 1957 and defendantsdid not complete theirdam of theMahle Spring

### water until 1958. Plaintiff contends had defendantscomplied with the notice requirements, theywould 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 statuteatthat

### 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 availableat

### laterand 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 153Mont. 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)

## , 133Mont. 211, 223, 321P.2d 1083. Here, defendants did not cause plaintiff's predecessor 

### to change her position forthe



### worse as defendants had already established a valid use right 

### to the spring

### water. Asstatedabove, defendants1use began in1917 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 position. Plaintiff also claims the doctrine of laches should be applied to establishplaintiff's superior right. In Montgomery

v. Bank of Dillon (1943),114Mont. 395, 136P.2d 760, thisCourt stated: "Laches means the negligence 

### or omission 

### to seasonably 

### assert a right

# . .. and it existswhen there 

### is an unexplained delayof suchduration

### or such character 

### as 

### to renderenforcement of an asserted right inequitable." 136 P.2d at766. 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, thisCourt cannot applylaches inthiscase. 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 TenMile 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 systemof storage reservoirs. During the dry season the citywould 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 actionworked to depriveprior downstream appropriatorsof the full

### or evenpartial 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 thereservoir 

### is filled inthe springwhen runoff is 

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

### v. Morris (1941), 112Mont. 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 thatdefendantsuse the

### water inthe reservoir 

### as a focal point of their irrigation system as well 

### as fortheir commercial fishfarm. The District Court decreed thatdefendants shallhavethe right

### to use the 

### water from the Mahle Springs at the rateof 110 gallons per minute. Plaintiff contends this rate is excessive inthat it allows defendantsmultiple fillingsof their reservoir. Wedisagree. The defendants have shown the prudence 

### to catch the spring run-off 

### to filltheir reservoir. After the reservoir has been filled in the spring, defendants have a decreed right toretain the incoming spring 

### water atthe rate of 110 gallons per minute. This does not constitute a double fillingof the reservoir. Any excess over 110gallonsper 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 traditionalpolicyconsiderationsdo 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 thatdefendants 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, com

### mercial 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." Conrowv. 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 (134gallons per minute), the amount of water for irrigating twelve acres, exceeds the amount decreed by the trial court. (Oneminer's inch equals 11.23 gallonsper minute.) Thus, all the evidence indicates 110 gallonsperminute is clearlyjustified. Judgment is affirmed

# .We concur: