No. 90-397 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

HAROLD MILDENBERGER and MARILYN MILDENBERGER, husband and wife, Plaintiffs and Respondents,

JOSEPH GALBRAITH and DENISE GALBRAITH,husband and wife, Defendants and Appellants. CLERKOFSUPREMECOCJRS STATEOF NlONTAPdA

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellants: DavidL. Pengelly;Knight,Maclay & Masar,Missoula, Montana For Respondents: John D. Greef,Attorney at Law, Hamilton, Montana For Amicus: Hon. Marc Racicot, Attorney General; Harley R. Harris,Assistant Attorney General,Helena,Montana Tim D. Hall, Legal Counsel, Department of Natural Resources, Helena,Montana

Filed: Submitted: May 14, 1991 Decided: July 1, 1991 

# n

ClerkTRULOCK Property LEGEND A. Trulock Property where F. Point where Newman-Kern channel water surfaces from springs. crosses Fish Hatchery Road and joins disputed ditch. B. Point where ditch enters Galbraiths'property. G. Hedgeditch onGalbraithProperty. C. Point where ditch crosses H. Point where combined flowsof disputed Fish Hatchery Road. ditch and Newman-Kern channel enter Hedge ditch on Galbraith property. D. West Branch of ditch on Galbraith property. I. Hedge ditch on Mildenberger property. E. Channel arising on Newman/Kern property.Several naturally occurring springs are located on the west half of Section 9 (point A) from where the water in question surfaces. The property is currently owned by Ron and Janet Trulock, who are not parties in this litigation. Water arising from the springs flows in a northwesterly direction in an open channel passing onto the Galbraithsl property at point B. The water continues to flow northward in the ditch system on the Galbraithsl property past points C and F topoint Hwhere thewater enters the Hedge Canal and finally flows on to the Mildenbergersl property at point I. Inaddition to the springsat pointA on theTrulock property, there arealso springs located on theNewman-Kern property at Point E. Thewater arising from these springs flowsnorthward andmerges with the disputed ditch at point F. Theportion of the ditch that gave rise to this litigation lies between points C and F. The ditch system in questionwas developed by the Galbraithsl predecessor, Marcus Daly, for irrigation purposes, sometimeprior to 1927. Water flowed through the ditch year-around and was used by the Galbraithsl predecessors for irrigation during the summer months and stockwater during the winter months. Since approximately 1927, the Mildenbergers and their predecessors have used the water entering their property in the Hedge Canal for stockwater. Inthe 1930Is, some of the springs on Section 9 (pointA) were developed by the State Fish and Game Department in order to conveythewater to a fish hatchery (shownonmap). Springwater diverted to the fishhatchery bypasses theditch system and theHedge Canal, and consequently, is never available for use on the Mildenberger property. The testimony indicated that the first development of the springs located on Section 9 that resulted in developed spring water flowing through the ditch on the Galbraithslproperty, did not occur until themid-19601s. The Mildenbergers owned the property in Section 5 (north of theGalbraithstproperty atpoint I) fromMarch, 1962, untilApril, 1964. They reacquired it in October, 1973,and have owned it since that time. Theproperty was owned by Dr. Jack Mahoney fromApril, 1964,toOctober, 1973. Dr. Mahoney also owned the current Trulock property in Section 9 (pointA) during approximately the same time period. Dr. Mahoney sold theproperty in Section 9 inApril, 1973, to the Mildenbergers, who then conveyed the property to Larry McCrossin in August, 1973. Ron and Janet Trulock are the current

owners of this property. Thetestimony shows thatduringhis ownership of theproperty, Dr. Mahoney used a dragline to develop and clear the channel from the spring at point A to the edge of the Galbraithslproperty at point B. He also enlarged an existing pond and drained water off this land through the pond into the channel. The testimony also shows that Dr. Mahoney1spurposes in developing these springswere to benefit the land in Section 9 and provide stockwater for hisland in Section 5; the same parcel currently owned by the Mildenbergers. Larry McCrossin testified that he had further developed the springs in Section 9 and had filed water rights on the water from these developed springs during his ownership of the property between 1973 and 1980. In the fall of 1988, the Galbraiths retained the services of

a local attorney to examine the State water right records and determine whether there were any claimed water rights in the portion of the ditch between points C and F. There were no water rights on record and, once advised by counsel of this fact, the Galbraiths proceeded to fill in the ditch between points C and F, and divert the flow of water to point D. Galbraith testified that

as part of his plan to improve the property, hewished to clean up and fill in the ditch between points C and F. On December 8, 1988, due to the Galbraiths' efforts in improving their property, the northward flow of water from point C had completely stopped. The Mildenbergers demanded that the Galbraiths reopen the ditch and when they refused to do so, this litigation ensued. A non-jury trial was held on March 26, 1990,and judgment was entered in favor of the Mildenbergers, finding they have a prescriptive easement in the disputed irrigation ditch on the Galbraiths' property, and a stockwater right in the amount of 200 miner's inches with a priority date of September 1, 1927, to groundwater arising on land currently owned by Ron and JanetTrulock. The District Court held that the Mildenbergers were exempt from the statutory filing requirements of theMontana Water Use Act and awarded the Mildenbergers damages in the sum of $100, their reasonableattorney's fees, and court costs. The Galbraiths appeal. The first issue is whether theDistrictCourterred in finding that the Mildenbergers have an existing water right in the amount of 200 miner's inches with a 1927 priority date. Without getting into themerits of this issue, it will suffice to say that the District Court ''may grant injunctive or other relief which is necessary and appropriate to preserve property rightsor the statusquopending the issuance of the finaldecree.It Section 85-2-406(2), MCA. The District Court lacks the jurisdiction to issue a final decree with regard to the water right. The jurisdiction to interpret and determine existing water rights rests exclusively with the water courts. Section 3-7-501, MCA

# . The question then becomes whether the District Court's judgment was "necessary and appropriate1'as required in 3 85-2- 406(2), MCA. A review of the record indicates an absence of any evidence to support the District Court's determination that the Mildenbergers had a water right in the amount of 200 miner's inches. Such a final adjudication of awater right is the functionof the water court, and not the District Court. The judgment with respect to the Mildenbergerstwater right in the amount of 200miner's inches is thereforevacated. The second issue on appeal iswhether theDistrict Court erred in finding that the Mildenbergers have a right by prescriptive easement in the ditch on the Galbraithstproperty. This Court has previously held that ditch rights and water rights are separate and distinct property rights. Connolly v. Harrel (1936), 102 Mont. 295, 57 P.2d 781. Therefore, our determination of whether or not a ditch right exists is entirely bifurcated from the water right issue. In order to establish a prescriptive easement a party must show open and notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the statutoryperiod of five years. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025. The Galbraiths argue that the Mildenbergershave failed topresent any evidence of an adverse, open and notorious use of the ditch in question. It istheGalbraithstcontentionthat theMildenbergersmerely made use of the unconsumed water that entered upon their property via the Hedge Canal after flowing through the Galbraithstditch. They argue that suchuse doesnot amount to open and notorious use,

nor has therebeen any other actionsby theMildenbergers that can be construed as adverse or hostile. We disagree. To be adverse, the use of a claimed rightmust be hostile andnot permissive. Ewan v. Stenberg (1975), 168 Mont. 63, 541 P.2d 60. Testimony at trial clearly established the fact that neither the Mildenbergers nor their predecessors ever asked permission of anyone to use the ditch. In the mid-19601s,the Mildenbergersl predecessor in interest, Dr. Mahoney, increased the flow of water through the ditch for the express purpose of increasing the use of water on theproperty currently owned by theMildenbergers. At no time did he seek permission to run his water through the ditch. Adverse use may be presumed whenever there has been unexplained use of thealleged easement forthe five-yearstatutory period. Thispresumptionmay be overcome by evidence that the use

was permissive. Keebler v. Harding (Mont. 1991)

## , 807 P.2d 1354, 1357, 48 St.Rep. 282, 283. The Galbraiths have failed to produce any evidence to showa permissiveuse of theditch. In fact,Berna Martinson, the Galbraithslpredecessor in interest, testified at trial that the Mildenbergersluse was never permissive. The Galbraiths argue that the Mildenbergers also failed to establish an open and notorious use. Ithas long been established that an open and notoriouspossession is such that it will give the owner of theproperty right "eitheractualknowledge of thehostile claim, or [be] of such a character as to raise a presumption of notice, or [be] so patent that the owner could not be deceived." Collins v. Thode (1918), 54 Mont. 405, 411-412, 170 P. 940, 941. The undisputed testimony of Berna Martinson establishes sufficient evidence that the servient estate owner had knowledgeof the Mildenbergers' claim in the ditch: [~listorically[the ditch] had always run that way and everybody respectedthe factthatIswhere thewater goes,



# . . . . we always knew that that's where thewater went, and we respected that rights. The Galbraiths argue that the Mildenbergers never physically entered on the property, and therefore have not made any asserted right hostile to the interests of the Galbraiths. However, physical presence ismerely evidence used to showknowledge on the part of the servient estate owner. There is other sufficient evidence in the record to support a finding of knowledge on the part of the Galbraiths or their predecessors. TheDistrict CourtIs findings will not be set aside when based upon substantial credible evidence. Downingv. Grover (1989), 237 Mont. 172, 772 P.2d 850. The record indicates substantial evidence exists to support the finding of a prescriptive easement. Wevacate the ~istrict Court's finding of a water right in the amount of 200miner's inches,and affirm its finding of an easement by prescription.Justice Karla M. Gray, specially concurring.

I concur in that portion of the majority opinion addressing the water right. I concur in the result reached by the majority with regard to the prescriptive easement in the ditch. My analysis of certain testimony differs somewhat from that of themajority. Themajority characterizesthe testimony of Berna Martinson, a predecessor of the ~albraiths, as showing that "the Mildenbergersl use was never permi~sive.~~ I read Ms. Martinson's testimony differently. It does not appear to me that either her testimony or any other testimony or evidence establishes whether the usewas permissive or nonpermissive at its inception. Indeed, Ms. Martinson's recollections regarding the ditch begin more than twenty-five years after the initial use of the ditch by the Mildenbergerslpredecessors. Ms. Martinson1stestimony does suffice to meet the I1adversel1 showing required,however. She testified that the llrightsll of the Mildenbergers1predecessors to use the ditch were recognized at least as early as the mid-1950s, the time of her earliest firm recollection of the ditch. As this Court has stated: 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

# . . . ; such claim [of right]must be known to, and acquiesced in by, the owner. 

# . . . Taylor v. Petranek (1977), 173 Mont. 433, 437, 568 P.2d 120, 122. Thus,whilewe do nothave a single distinct and positive assertion of a claim of right to use the ditch, Ms. Martinson's testimonyindicates that a claim of right was known to exist, and acquiesced in, at least as early as 1955. This testimony provides sufficient evidence to support the District Court's finding that the use of the ditch was I1adverse.