No. 94-439

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

ELMER UNRUH,

Plaintiff, Respondent, Cross-Appellant,

WILLIAM TASH and TASH T DIAMOND

LIVESTOCK, INC.,

Defendants and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Beaverhead,

The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Filed:

Jon Metropoulos, Helena, Montana

For Respondent:

W. Cecil Jones, Thomas R. Scott, Dillon, Montana

Submitted on Briefs: February 9, 1995

Decided: May 23, 1995

Cl&k
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal and cross-appeal from a Fifth Judicial

District Court, Beaverhead County, order granting the defendant's

motion for summary judgment in a prescriptive easement action. We

reverse and remand.

The following are issues on appeal and cross-appeal:

APPEAL

1. Did the District Court err in denying attorney fees to the

defendant William Tash (Tash) pursuant to 5 70-17-112, MCA?

CROSS-APPEAL

1. Did the District Court err in granting summary judgment in

favor of Tash, finding a prescriptive easement for the use of the

ditch and a prescriptive right to overflow water onto a portion of

plaintiff Elmer Unruh's (Unruh's) land?

2. Did the District Court err when it failed to have a record

of the summary judgment hearing?

3. Did the District Court err in adopting Tash's Findings of

Fact, Conclusions of Law, and Order verbatim?

FACTUAL BACKGROUND

The plaintiff, Unruh is the owner of 12.6 acres of real

property located in the SE1/4 NE1/4 Section 33 Township 7 South

Range 9 West M.P.M., purchased in 1989. The defendant Tash owns

property immediately east of plaintiff's property, with both

properties adjoining each other with a border running north-south

for approximately 932 feet. The object of this litigation is a

lateral ditch which adjoins the Van Camp ditch, a major ditch which

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forms the western border of the plaintiff, Unruh's property. The

Van Camp ditch carries water from the Beaverhead River to several

ranches, including Tash's ranch. The only written information

affecting the lateral ditch and its current placement is a 1944

agreement between predecessors of the plaintiff and defendant and

a sale deed between the plaintiff's remote predecessor and the

State. The Van Camp ditch was realigned in 1944 pursuant to a

written agreement between Emily Tash, Edna Wheat, and Norman and

Blanche Downing (Unruh's remote predecessors). The agreement

provided for an easement to the grantees (Wheat and Tash) for the

purpose of constructing, maintaining and repairing said ditch.

Moreover, the easement provides that the parties may carry, conduct

and convey the waters flowing or to flow therein to the lands of

the grantees. As a result of realigning the Van Camp ditch, the

lateral ditch had to be "continued" to connect to the realigned Van

Camp ditch. The newly located lateral ditch consisted of portions

of the old lateral ditch and a portion of the old Van Camp ditch.

In 1954, the State of Montana bought land from the Downings

for the purpose of relocating Highway 278. The result of the

highway construction was that the headgate of the lateral ditch had

to be relocated and a new lateral ditch built. A special

consideration in the Bargain and Sale Deed stated that "[hleadgate

at Sta [Station] 2284+60, approximately, to be removed by

contractor, and to be replaced by owner (Tash Ranch Co.)." A new

headgate was installed and the new lateral ditch was built using a

portion of the original lateral ditch and a small portion of the

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old Van Camp ditch.

Testimony regarding use of the lateral ditch is in the form of

several affidavits. According to the affidavit of Herb Wheat, who

has lived in the area since 1913, the lateral ditch has been in use

as long as he can recall, with an overflow of water at the

northeastern end of the ditch. Gerald Jones' affidavit states that

since 1970, he has leased land and the Van Camp ditch from Herb

Wheat and he recalls the use of the lateral ditch in the 1970s. He

could not testify to its use in the last 10 years but had no real

reason to check the ditch during that time period. However, he had

no reason to feel the ditch had been abandoned.

Bill Ballard stated in his affidavit that the water in the

lateral ditch had been used by Tash in the past in a manner which

caused some overflow onto both Tash's and Unruh's lands. Finally,

Jim Allen also stated that the lateral ditch was in use when he

managed a horse ranch which included Unruh's land from 1979 to 1989

and the water in the lateral ditch was used by Tash in a manner

which included overflow on both Tash's and Unruh's properties.

In his amended complaint filed on May 21, 1991, the plaintiff

asserted that: 1) the ditch in contention was abandoned by Tash's

predecessors in the April 20, 1944 document; 2) that the ditch had

not been used for over ten years and consequently, the right to use

the ditch had been extinguished; and 3) any right of the defendant

to use the ditch was by consent and the plaintiff has since revoked

his consent to use of the ditch by defendant.

Tash contended that he possessed a prescriptive easement to

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use the ditch in question and use it in the manner in which he had

used it for over twenty years (i.e. overflowing the ditch) when

water was available and needed. He further has contended that his

right to use the ditch was not by license or consent. He asserted

that if the Downings, Unruh's predecessor in interest, had given a

license for such use, the license had been extinguished in 1972

when the property was conveyed and use of the ditch from 1972 to

1977 was adverse to the new owners and therefore, if a prescriptive

easement had not been acquired previously, it had been acquired

between 1972 and 1977. Also, Tash states that Unruh recognized

Tash's ownership rights in the ditch when he "ceased [his]

attempted realignment of the ditch and sought [Tash'sl permission

to place a culvert in the original ditch."

In an order dated July 10, 1991, the District Court concluded

that Tash had an easement to use the ditch in the manner in which

it had been used in the past, allowing the water to overflow the

ditch onto Unruh's property. Moreover, the District Court

concluded that Tash had not abandoned any right to use the ditch.

Further, the District Court, although stating that the above

holding disposed of the matter, also concluded that the plaintiff

had failed to meet his burden of proving that the overflow of water

was the proximate cause of his damages. Finally, the District

Court concluded that the damages sought by the plaintiff were too

speculative since his proposed business was a new business.

Following the entry of summary judgment in favor of Tash, Tash

requested an award of attorney fees. In a memorandum filed April

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1, 1992, the District Court denied Tash's motion for an award of

attorney fees, stating that there was no encroachment or impairment

of the easement by Unruh's actions nor did Unruh limit Tash's

access to his ditch easement. Finally, the District court

concluded that "adjudication of contested rights in a ditch

easement does not constitute encroachment or interference and does

not impair the ditch owner's rights." This appeal by Tash and a

subsequent cross-appeal by Unruh followed.

STANDARD OF REVIEW

Our review of a summary judgment motion is the same as that of

the District Court; it is a de nova review. Roe v. Corbin Water

Users' Ass'n. (1994), 267 Mont. 503, 885 P.2d 419. Summary

judgment is proper only when there are no genuine issues of

material fact existing and the moving party is entitled to judgment

as a matter of law. Roe, 885 P.2d at 420.

DISCUSSION

CROSS-APPEAL ISSUE ONE - SUMMARY JUDGMENT

Unruh asserts that the District Court erred in granting

summary judgment to Tash, concluding that Tash had a prescriptive

easement to the ditch in question and a prescriptive right to

overflow the ditch. Tash contends that "Unruh does not and cannot

seriously contest that the elements of open, notorious, continuous

use for five years have been established." Tash argues that

adversity is the only issue in the instant case.

To establish an easement by prescription, the party

claiming an easement "must show open, notorious,

exclusive, adverse, continuous and uninterrupted use of

the easement claimed for the full statutory period. The

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statutory period is five years." The burden is on the

party seeking to establish the prescriptive easement.

"All elements must be proved in a case such as this

because 'one who has legal title should not be forced to

give up what is rightfully his without the opportunity to

know that his title is in jeopardy and that he can fight

for it'."

"To be adverse, the use of the alleged easement must

be exercised under a claim of right and not as a mere

privilege or license revocable at the pleasure of the

owner of the land; such claim must be known to, and

acquiesced in by, the owner of the land." "If the owner

shows permissive use, no easement can be acquired since

the theory of prescriptive easement is based on adverse

use. I'

Public Lands Access Assn, Inc. v. Boone & Crockett Club Foundation,

Inc. (1993), 259 Mont. 279, 283-84, 856 P.2d 525, 527. (Citations

omitted.) The elements of a prescriptive easement were defined in

Rappold v. Durocher (1993), 257 Mont. 329, 849 P.2d 1017, as

follows :

"Open and notorious" is defined as "a distinct and

positive assertion of a right hostile to the rights of

the owner and must be brought to the attention of the

owner." "Continuous" means "it is necessary to have use

made often enough to constitute notice of the claim to

the potential servient owner." "Uninterrupted" means

"use not interrupted by the act of the owner of the land

or by voluntary abandonment by the party claiming the

right."

"An Exclusive use means that the claimants' right to

use the right of way is independent of a like right of

way in another."

Raopold, 849 P.2d at 1019. (Citations omitted.)

We now apply the factual information provided to determine

whether there are any genuine issues of material fact as to Tash's

claim to a prescriptive right to the ditch in question. Tash's

testimony to the effect that he had an easement by prescription was

as follows:

First, Tash provided an affidavit from William Ballard who

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leased the property now owned by Unruh from 1978 to 1984. Ballard

stated that at the time of his lease, the ditch appeared to be in

place and of long standing use. He specifically recalls the use of

the ditch by Tash and overflow of water onto the property several

times during his lease of the property.

Second, Jim Allen testified through an affidavit that he was

the ranch manager for a horse ranch which included the property now

owned by Unruh. During that time, Allen recalls the use of the

ditch by Tash several times, including overflow onto the

surrounding property.

Third, Herb Wheat is the owner of land just to the north of

Tash's ranch and has lived in the area since 1913. He is part

owner of the Van Camp ditch. Wheat testified through his affidavit

that Tash had used the ditch in a manner which included the

overflow of water at the northeastern end of the ditch for as long

as he could remember.

Fourth, Tash also provided the affidavit of Gerald Jones who

has leased property and shares in the Van Camp ditch from Wheat

since 1970. Jones recalled seeing the lateral ditch in use by Tash

several times during the 1970s. He also stated that although he

has no specific recollection of seeing the ditch in use in the last

10 years, he has no reason to infer it has been abandoned or

unused. He has had no occasion to check its use.

Fifth, Tash, himself stated in an affidavit that the lateral

ditch was used to flood irrigate 15 acres of his property east of

the ditch. He further asserted that the ditch use has included

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overflow at the northeast end of the ditch. Finally, Tash stated

that the ditch has been used when necessary and when water was

available since it was built including numerous occasions in the

last 14 years.

Sixth, he stated in his deposition that the lateral ditch

could serve no others. In the 1991 deposition, he further stated

that he had performed routine maintenance and had deepened the

ditch in the last 10 years. Moreover, Tash described Unruh's

attempt to realign the ditch with a backhoe. He stated in his

deposition that after Tash objected to the realignment, Unruh

filled in the area upon which he had worked.

Seventh, Tash offered the Bargain and Sale Deed conveying land

from the Downings to the State for the purpose of building the

highway over that area of land. The document states, under

"Special Considerations" that "Headgate at Sta 2284+60,

approximately, to be removed by contractor, and to be replaced by

owner (Tash Ranch Co.) .I'

Tash also offered the 1944 agreement between Edna Wheat, Emily

Tash and the Downings which stated:

NOW THIS INDENTURE WITNESSETH, that for and in

consideration of the benefits to accrue to the parties

hereto by the changing of the location of the Van Camp

Ditch and for other good and valuable consideration, the

receipt of which is hereby acknowledged, the grantors

hereby give and grant to the grantees a perpetual right

of way and easement for the construction and maintenance

of a ditch over, across and upon the said Southeast

Quarter of the Northeast Quarter of Section 33, Township

7 South, Range 9 West, M.P.M. Beaverhead County, Montana,

said ditch to be constructed upon a line agreed upon by

the parties hereto and which said line is approximately

300 feet west of the present Van Camp Ditch, said ditch

so to be constructed shall be 8 feet in width and 2 feet

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or more in depth and of sufficient capacity to convey

therein all of the waters of Beaverhead River decreed to

the Grantees and all waters from any other source owned

by the grantees or acquired by them from any source, and

the grantees their agents and servants shall have, and

they are hereby expressly given the right to enter upon

the lands of the grantors when and wherever necessary for

the purpose of constructing said ditch and forever

maintaining and repairing said ditch and carrying,

conducting and conveying the waters flowing or to flow

therein to the lands of the grantees.

Unruh, on the other hand, provided the testimony through

deposition, of Ronald Johnson, a previous owner of the property and

a partner in farming the property with his brother Frederick,

Unruh's immediate predecessor. Johnson stated that he bought the

property in 1978 with Bob Mountain and sold the property to

Sullivan in 1984. Johnson managed the property for Sullivan from

1984 until 1986. Johnson remembered no water running through the

lateral ditch at that point in time. From 1986 until Frederick

Johnson purchased the land (Unruh's land) in 1989, he does not

remember paying attention to the ditch and does not remember water

running through it on his daily travels past the ditch. He further

stated that he watched it much closer prior to 1986 and that "to

the best of my recollection, there has never been water that has

run through there."

Elmer Unruh was deposed on February 22, 1991. He stated that

he felt that Tash had abandoned the ditch and that Tash had no

right to use the ditch in any manner. Although Unruh stated that

he inspected the property before purchasing it and the ditch

appeared to be abandoned, he does not recall checking the headgate.

He admitted that Tash claims he has used the ditch in the past on

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only provided conclusory statements that the ditch was used and

that such use included overflow of the water onto the surrounding

property. Conclusory statements are not sufficient to create a

genuine issue of material fact. Thornton v. Songstad (1994), 263

Mont. 390, 398, 868 P.2d 633, 638.

Moreover, there is no testimony that the use of the ditch was

either permissive or adverse, merely that Tash used the ditch. It To

be adverse, the use of the alleged easement must be exercised under

a claim of right and not as a mere privilege or license revocable

at the pleasure of the owner of the land; such claim must be known

to and acquiesced in by, the owner of the land." Warnack v. Coneen

Family Trust (1994), 266 Mont. 203, 208, 879 P.2d 715, 719.

(Emphasis added.) Moreover, I( [wlhile a presumption of adverse use

or adversity arises once the claimant establishes ooen, notorious,

exclusive, continuous, and uninterrupted (unmolested) use for the

full statutory period, it remains the burden of the easement

claimant to prove each of those remaining elements of prescription,

and unless and until the claimant proves those elements under the

general rule, the burden does not shift to the land owner to prove

permissive use or license." Warnack, 879 P.2d at 723. (Citations

omittted.) Finally, "[aIdverse use or adversity cannot, however,

be presumed from the claimant's inability to prove those remaining

elements of prescription; if those elements are not proven, then

the presumption of adverse use or adversity never springs into

existence." Warnack, 879 P.2d at 724.

In the instant case, Tash did not provide adequate testimony

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from which it could be determined that the elements of open,

notorious, and continuous use could be satisfied. We conclude,

therefore, that genuine issues of material fact remain as to

whether Tash's use of the ditch was open, notorious, continuous and

adverse. We hold that the District Court erred in granting summary

judgment to Tash on the issue of whether he had established a

prescriptive easement.

APPEAL ISSUE ONE - ATTORNEY FEES

Tash argues that Unruh interfered with, encroached upon and

impaired Tash's easement by physically rerouting the ditch,

breaking the ditch bank, denying access to the ditch, conditioning

access to the ditch and initiating litigation in which Tash was

forced to defend his easement right. Tash further asserts that he

had to forego at least one irrigation opportunity because of the

litigation. He argues that under Kephart v. Portmann (1993), 259

Mont. 232, 855 P.2d 120, sufficient impairment has occurred to

warrant an award of attorney fees. Unruh counters that

encroachment or impairment requires more action than merely

instituting a legal action against the alleged easement owner.

Further, he contends that he has made every effort "not to encroach

or impair the use of the lateral ditch by Tash;" neither has he

refused access by Tash to the lateral ditch.

However, because we are reversing the District Court on its

decision granting summary judgment to Tash on the issue of whether

he had established a prescriptive easement, we need not address the

issue of attorney fees. This issue must be resolved by the

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District Court based upon its ultimate determination at trial. We

remand the issue of attorney fees to the District Court for a final

determination.

It would also be premature to discuss the issue of Unruh's

damages because the case is being reversed and remanded back to the

District Court. The lower court must address issues of damages

when the action returns to the District Court for a final

determination.

CROSS-APPEAL ISSUE TWO - LACK OF RECORD ON APPEAL

Because we reverse and remand this case on the central issue

of whether there exists a prescriptive ditch easement, the issue of

lack of record is necessarily moot.

CROSS-APPEAL ISSUE THREE - ADOPTION OF ORDER VERBATIM

Unruh also contested the District Court's adoption of Tash's

proposed order on cross-appeal. This issue, too, became moot

because of our decision to reverse the District Court on the case's

central issue.

REVERSED AND REMANDED for further proceedings consistent with

this opinion.

We Concur:
May 23, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

Jon Metropoulos

Attorney ai Law

Power Block Bldg., Ste. 0

6th & Last Chance Gulch

Helena, MT 59601

W. Cecil Jones and Thomas R. Scott

Attornevs at Law

P.O. Bo;r 166

Dillon, MT 59725

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA