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. CLERK OF SUPREME COCJRS 

STATE OF 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: 

David L. 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 

Clerk 

TRULOCK 

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. Hedge ditch on Galbraith Property. 

C. Point where ditch crosses H. Point where combined flows of 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 to point H where the water 

enters the Hedge Canal and finally flows on to the Mildenbergersl 

property at point I. 

In addition to the springs at point A on the Trulock property, 

there are also springs located on the Newman-Kern property at Point 

E. The water arising from these springs flows northward and merges 

with the disputed ditch at point F. The portion of the ditch that 

gave rise to this litigation lies between points C and F. 

The ditch system in question was developed by the Galbraithsl 

predecessor, Marcus Daly, for irrigation purposes, sometime prior 

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. 

In the 1930 Is, some of the springs on Section 9 (point A) were 

developed by the State Fish and Game Department in order to convey 
the water to a fish hatchery (shown on map). Spring water diverted 

to the fish hatchery bypasses the ditch system and the Hedge 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 Galbraithsl property, did 

not occur until the mid-19601s. 

The Mildenbergers owned the property in Section 5 (north of 

the Galbraithst property at point I) from March, 1962, until April, 

1964. They reacquired it in October, 1973, and have owned it since 

that time. The property was owned by Dr. Jack Mahoney from April, 

1964, to October, 1973. Dr. Mahoney also owned the current Trulock 

property in Section 9 (point A) during approximately the same time 

period. Dr. Mahoney sold the property in Section 9 in April, 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. 

The testimony shows that during his ownership of the property, 

Dr. Mahoney used a dragline to develop and clear the channel from 

the spring at point A to the edge of the Galbraithsl property 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. Mahoney1s purposes in developing these springs were 

to benefit the land in Section 9 and provide stockwater for his 
land 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, he wished 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 Janet 
Trulock. The District Court held that the Mildenbergers were 

exempt from the statutory filing requirements of the Montana Water 

Use Act and awarded the Mildenbergers damages in the sum of $100, 

their reasonable attorney's fees, and court costs. The Galbraiths 

appeal. 

The first issue is whether the District Court erred 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 the merits 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 

rights or the status quo pending the issuance of the final decree. 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 a water right is the function 
of the water court, and not the District Court. 

The judgment with respect to the Mildenbergerst water right 

in the amount of 200 miner's inches is therefore vacated. 

The second issue on appeal is whether the District Court erred 

in finding that the Mildenbergers have a right by prescriptive 

easement in the ditch on the Galbraithst property. 

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. Theref ore, 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 statutory period of five 

years. Morrison v. Higbee (1983), 204 Mont. 515, 668 P.2d 1025. 

The Galbraiths argue that the Mildenbergers have failed to present 

any evidence of an adverse, open and notorious use of the ditch in 

question. 

It is the Galbraithst contention that the Mildenbergers merely 

made use of the unconsumed water that entered upon their property 

via the Hedge Canal after flowing through the Galbraithst ditch. 

They argue that such use does not amount to open and notorious use, 

nor has there been any other actions by the Mildenbergers that can 

be construed as adverse or hostile. We disagree. 

To be adverse, the use of a claimed right must be hostile and 
not 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 the property currently owned by the Mildenbergers. 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 the alleged easement forthe five-year statutory 

period. This presumption may 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 show a permissive use of the ditch. In fact, Berna 

Martinson, the Galbraithsl predecessor in interest, testified at 

trial that the Mildenbergersl use was never permissive. 

The Galbraiths argue that the Mildenbergers also failed to 

establish an open and notorious use. It has long been established 

that an open and notorious possession is such that it will give the 

owner of the property right "either actual knowledge of the hostile 

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 knowledge 
of the Mildenbergers' claim in the ditch: 

[~listorically [the ditch] had always run that way and 

everybody respected the fact that Is where the water goes, . . . . we always knew that that's where the water 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 is merely evidence used to show knowledge 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. 

The District Court Is findings will not be set aside when based 

upon substantial credible evidence. Downing v. Grover (1989), 237 

Mont. 172, 772 P.2d 850. The record indicates substantial evidence 

exists to support the finding of a prescriptive easement. 

We vacate the ~istrict Court's finding of a water right in the 

amount of 200 miner'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 the majority. The majority characterizes the 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 use was 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 

Mildenbergersl predecessors. 

Ms. Martinson1s testimony does suffice to meet the I1adversel1 

showing required, however. She testified that the llrightsll of the 

Mildenbergers1 predecessors 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, while we do not have a single distinct and positive assertion 

of a claim of right to use the ditch, Ms. Martinson's testimony 
indicates 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.