NO. 95-553

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dirk A. Williams, Church, Harris, Johnson &

Williams, Missoula, Montana

For Respondent:

Walter E. Congdon, Congdon Law Office, Missoula,

Montana

Filed:

Submitted on Briefs: August 1, 1996

Decided: December 13, 1996
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the Twenty-First Judicial District

Court, Ravalli County. Following a bench trial, the District Court

awarded Plaintiffs, Lee and Donna Wareing, a prescriptive ditch

easement across Schreckendgust's property, costs and attorney fees.

Additionally, the District Court ordered the parties to equally

share the costs of replacing the ditch culvert crossing Defendant

Schreckendgust's property. Defendant Schreckendgust appeals. We

affirm.

We restate the issues on appeal as follows:

1 . Must the elements of a prescriptive easement be proved by

a preponderance of evidence or by clear and convincing evidence?

2 . Did the District Court err 'in concluding that Wareings

established all elements of their prescriptive ditch easement

claim?

3 . Under the doctrine of estoppel, are Wareings precluded

from asserting a prescriptive easement right against Schreckendgust

after they acquired an express ditch easement from a neighboring

landowner over property previously owned by Schreckendgust?

4 . Did the District Court err when it failed to expressly

limit the scope of Wareings' prescriptive ditch easement both as to

location and method of maintenance?

5 . Is Schreckendgust entitled to attorney fees under § 70-

17-112, MCA?

6 . Should this case have been remanded for a new trial?

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Lee and Donna Wareing, (Wareings) own real

property situated in a portion of the SE1/4 of Section 11, Township

10 North, Range 20 West, P.M.M., Ravalli County, Montana, lying

east of the right of way of Montana Rail Link. They acquired their

property in 1960. Defendant Clyde Schreckendgust (Schreckendgust)

owns real property situated in the W1/2 of Section 11, Township 10

North, Range 20 West, P.M.M., Ravalli County, Montana.

Schreckendgust acquired his property' from his father in 1962.

Wareings' property lies east of Schreckendgust's property. See

Appendix A for a map of the relevant portions of the parties'

properties. This map is an overlay on the relevant township map

derived from the Water Resources Survey, Ravalli County, Montana,

State Engineer's Office (Helena, Montana, June 1958) (Map 31).

Wareings' property is irrigated by water flowing from One

Horse Creek through the "Samuel Miller Ditch" (ditch) that crosses

various properties, including property owned by Schreckendgust.

Specifically, the ditch crosses two lots owned by Schreckendgust,

described as Florence Orchard Homes Lots 19 and 20. Between these

lots and Wareings' property is Florence Orchard Homes Lot 38,

previously owned by Schreckendgust, but acquired by Steve

Schertenleib in 1988. Also between the parties' properties lies a

Ravalli County road, U.S. Highway 93 and the Montana Rail Link

railroad right-of-way.

As it crosses Schreckendgust's Lots 19 and 20, the irrigation

ditch flows through a concrete culvert under an old airstrip. As
the ditch crosses Florence Orchard Homes Lot 38, it enters an

underground pipeline installed by Schertenleib. After exiting Lot

38, the irrigation ditch, through a series of culverts, crosses

under a Ravalli County road, U.S. Highway 93 and the Montana Rail

Link railroad right-of-way to reach Wareings' property.

Samuel Miller is Wareings' original predecessor in interest

for most of their affected property. Samuel Miller conveyed his

property to Ambrose Miller in 1897, and Ambrose Miller in turn

conveyed the property to William E. Gleason and Lorenzo A. Gillett

in 1898. After Gillett conveyed his interest in the property to

Gleason in 1913, Gleason sold various parcels of the property to

others. In the 1940s and 195Os, Ed Martin owned the bulk of the

property. In 1960, Wareings acquired their property from Ed

Martin.

After 1904, but long prior to 1957, the present "Samuel Miller

Ditch'! was installed and/or extended to what is now Wareings'

property. Gleason used the ditch to convey irrigation water from

the 1930s on, and, subsequently, Ed Martin used the ditch

continuously to irrigate his property during the 1940s and 1950s.

Finally, Wareings have used the ditch for irrigation purposes since

1960. During this period of use, Wareings maintained the ditch by

shovel and hand cleaning. Neither Wareings, nor their

predecessors-in-interest, expressly sought Schreckendgust's

permission to use the ditch. Instead, they notified Schreckendgust

when they intended to run water through the ditch. Such

notification was a neighborly custom in the area.

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In 1947, Schreckendgust built an airstrip on his property.

Where the airstrip crossed the ditch, Schreckendgust installed, at

his own expense, a reinforced concrete culvert in the ditch. Lee

Wareing testified that in April 1990 he called Schreckendgust in

Florida to complain that the 80-foot long culvert, located below

Schreckendgust's airstrip, was obstructed by boulders and other

debris. Schreckendgust declined to personally have the culvert

cleaned and told Wareing to do whatever he needed and so Wareing

had his ranch foreman do the work. To clean the culvert, Wareings'

worker found it necessary to knock holes in the top of the culvert

to clear the obstructions. After this initial cleaning, vandals

broke out more sections, thereby obstructing the culvert again,

which led Wareings' worker to break out more top pieces to

successfully clear the culvert. After returning to his property,

Schreckendgust found it necessary to replace the broken culvert.

Wareings initiated this law suit against Schreckendgust

through an application for temporary restraining order and

preliminary injunction dated August 13, 1991. Wareings alleged

that Schreckendgust's replacement of the airstrip culvert would

take some days to complete and would interrupt water flow through

the ditch and Wareings would be without water for irrigation and

livestock. Schreckendgust prevailed on his motion to quash the

temporary restraining order and successfully defended against

Wareings' application for a preliminary injunction on October 18,

1991. Schreckendgust then filed an answer and counter-claim on

July 17, 1992. In his answer, Schreckendgust raised several

5
affirmative defenses and denied all allegations set out in

Wareings' application for temporary restraining order and

preliminary injunction. In his counter-claim, Schreckendgust

sought damages for destruction of the concrete culvert on his

property, damages for trespass, a decree quieting title to Lots I8-

24, 33-36, 39 and 40, Florence Orchard Homes, Ravalli County, and

an order enjoining Wareings from entering Schreckendgust's real

property.

On December 19, 1994, this case was heard by bench trial in

the Twenty-First Judicial District Court, Ravalli County, Montana.

Immediately prior to testimony being given during trial, the

parties stipulated that Wareings could file their complaint wherein

Wareings alleged that they, either by prescription, specific grant

o r reservation, held an easement for the ditch crossing

Schreckendgust's property. Furthermore, the District Court

considered Schreckendgust as having denied all allegations in the

complaint. On May 15, 1995, the District Court entered its

Findings of Fact, Conclusions of Law and Order. The District Court

concluded that Wareings had established a prescriptive easement for

an irrigation ditch across Schreckendgust's property and awarded

them costs and attorney fees. Additionally, the District Court

held that each party was responsible for fifty percent of the cost

of replacing the culvert located on Schreckendgust's property.

Finally, after considering Schreckendgust's objection to certain

costs and attorney fees, the District Court entered its final

Opinion, Order and Judgment on October 30, 1995. Therein, the

6
District Court offset certain costs and attorney fees and directed

Schreckendgust to pay Wareings a reduced net amount of costs and

attorney fees. From these judgments, Schreckendgust appealed.

For reasons set forth in our discussion of Issue 1, on May 14,

1996, we remanded this case to the District Court with instructions

to reconsider its decision applying the clear and convincing burden

of proof. On June 10, 1996, the District Court filed its Amended

Findings of Fact and Conclusions of Law. On June 18, 1996, we

granted counsel for the respective parties the opportunity to file

supplemental briefs with regard to the District Court's Amended

Findings of Fact and Conclusions of Law. Counsel for the parties

did so. We now consider both the initial issues on appeal as well

as the issues raised in the supplemental briefs.

STANDARD OF REVIEW

Our standard of review for a district court's findings of fact

is provided by Rule 52(a), M.R.Civ.P., which in part provides:

Findings of fact . . . shall not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the

credibility of the witnesses.

We have adopted the following three-part test to interpret

this rule:

First, the Court will review the record to see if

the findings are supported by substantial evidence.

Second, if the findings are supported by substantial

evidence we will determine if the trial court has

misapprehended the effect of evidence. Third, if

substantial evidence exists and the effect of the

evidence has not been misapprehended, the Court may still

find that "[Al finding is 'clearly erroneous' when,

although there is evidence to support it, a review of the

record leaves the court with the definite and firm

conviction that a mistake has been committed."

7
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found.

(1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate

Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 p.2d

1285, 1287).

Our standard of review for a district court's conclusions of

law is whether the tribunal's interpretation of the law is correct.

Public Lands, 820 P.2d at 527.

DISCUSSION

1 . Must the elements of a prescriptive easement be proved by

a preponderance of evidence or by clear and convincing evidence?

Our standard of review for a district court's conclusions of

law is whether the tribunal's interpretation of the law is correct.

Public Lands, 820 P.2d at 527. On appeal, Schreckendgust

originally contended that the District Court erred by basing its

opinion on a preponderance of the evidence rather than on clear and

convincing evidence to award Wareings a prescriptive easement over

Schreckendgust's property. After researching the issue, we agreed.

Consequently, in our May 14, 1996 Order, we remanded the case to

the District Court with instructions to reconsider its findings of

fact and conclusions of law based on the existing record and

applying the clear and convincing burden of proof.

Our research revealed two differing lines of authority as

regards the burden of proof in prescriptive easement cases. This

is the first case, however, that has raised this anomaly directly.

In fact, in most of the prescriptive easement cases that have

previously come before this Court on appeal, burden of proof is not

8
even mentioned parenthetically, and it is impossible to tell what

burden was utilized by the trial court and litigants. Accordingly,

it is necessary that we clarify the law regarding the proper burden

of proof in prescriptive easement cases.

In Kostbade v. Metier (1967), 150 Mont. 139, 143, 432 P.2d

382, 385, following a long line of Montana cases, we stated that a

party asserting a prescriptive easement must prove his claim by

clear and convincing evidence. Moreover, in Warnack v. Coneen

Family Trust (1994), 266 Mont. 203, 216, 879 P.2d 715, 723, we

stated that the party asserting a prescriptive easement must prove

each element of the claim.

In Downinq v. Grover, however, without any analysis or

reference to Kostbade, we stated that "[al11 elements of

prescriptive easement must be proved by a preponderance of the

evidence or the claim will fail." Downing v. Grover (1989), 237

Mont. 172, 175, 772 P.2d 850, 852 (citing Grimsley v. Estate of

Spencer (1983), 206 Mont. 184, 670 P.2d 85). We again adopted this

lower burden of proof in Brown v. Tintinger (1990), 245 Mont. 373,

377, 801 P.2d 607, 609 (citing Downinq, 772 P.2d at 852), without

any apparent recognition of the existence of a contrary line of

authority.

In Downinq, a landowner sued an adjoining landowner seeking to

establish a public road across the adjoining landowner's property

or alternatively a public or private prescriptive easement. When

we addressed the prescriptive easement claim, we stated:

The burden at trial on the party seeking to

establish the prescriptive easement is to show

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1) open

2) notorious

3) exclusive

4) adverse

5) continuous, and

6) uninterrupted use

of the easement claimed for the full statutory period.

Clemens v. Martin (Mont. 1986), [221Mont. 483,] 719 P.2d

787, 43 St.Rep. 994. The statutory period is five years.

Section 70-19-401, MCA. All elements of orescriptive

easement must be proved bv a preponderance of the

evidence or the claim will fail. Grimsley v. Estate of

Spencer (1983), 206 Mont. 184, 670 P.2d 85. 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."

Grimsley, 670 P.2d at 92-93.

Downinq, 772 P.2d at 852 (emphasis added).

The above quoted language properly sets forth the elements of

a prescriptive easement, the required statutory period and the

policy underlying the strict requirements for establishing a

prescriptive easement. See Warnack, 879 P.2d at 718. However, the

stated lower burden of proof for prescriptive easement claims is

not correct.

In Downinq, we relied upon Grimslev as authority for this

burden of proof and the underlying policy of prescriptive easement

claims. In Grimslev, the plaintiffs claimed a prescriptive right

to the use of water with only a showing of uninterrupted use. We

responded that to acquire water rights by prescription, the party

alleging prescription must “satisfy every element of the claim . .

and that a failure to satisfy any element is fatal to the entire

claim. I1 Grimslev, 670 P.2d at 91-92. We further explained that:

To allow a plaintiff, or any party for that matter,

the opportunity to obtain title. to water rights by a

showing of mere uninterrupted use would do a disservice

to the sound precepts of western water law. Ideally, all

10
water rights should be obtained in as orderly a manner as

is humanely [sic] possible. Prescription does not

contribute to the maintenance of an orderly

Indeed, we recognize that,

system.

with respect to water rights

based on claims made after July 1, 1973, acquisition of

title by prescription is not permitted. We think this

observation is akin to the time-honored proposition that

one claiming title to property under adverse possession

must bear a heavy burden to show that his use of the

property is continuous, hostile, actual, notorious, and

exclusive to the owner of record, for 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. Water rights are

much to precious to forego without a showing of hostile

or adverse use.

Grimslev, 670 P.2d at 92-93 (citations omitted).

Nowhere in Grimsley do we state that the proper burden of

proof for prescriptive easement claims is a preponderance of the

evidence. We only state that a person claiming a water right by

prescription, like a person claiming a property right by adverse

possession, must bear "a heavy burden" to prove all of the elements

of the prescriptive claim. This is supported by the policy giving

landowners with legal title the opportunity to protect and remain

secure in their property rights.

It was improper that in Downinq we chose to rely upon

Grimsley, a prescriptive water right case which did not

specifically address the burden of proof for either prescriptive

water rights or prescriptive property easements, when we had

already previously established a long line of clear precedent

setting forth the burden of proof in prescriptive easement cases as

that of clear and convincing evidence. See, Kostbade v. Metier

(1967), 150 Mont. 139, 432 P.2d 382; Descheemaeker v. Anderson

(1957), 131 Mont. 322, 310 P.2d 587; Peasley v. Trosper (1936), 103

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Mont. 401, 64 P.2d 109; Maynard v. Bara (1934), 96 Mont. 302, 30

P.2d 93; Violet v. Martin (1922), 62 Mont. 335, 205 P. 221

(overruled on other grounds); Barnard'Realty Co. v. City of Butte

(1918), 55 Mont. 384, 177 P. 402. Moreover, both Downinq and

Tintincrer were decided on issues that did not involve a question as

to the appropriate burden of proof. Accordingly, our reference in

those cases to that burden as being preponderance of evidence was

purely dicta, in any event. Consequently, in so far as Downinq,

Tintinqer and any other Montana case adopts a preponderance of the

evidence burden of proof in prescriptive easement claims, those

cases are hereby overruled to that extent

Moreover, as we stated in Warnack, a prescriptive easement

claimant has the burden to prove each element of the prescriptive

claim. Warnack, 879 P.2d at 723. Accordingly, the proper burden

of proof in prescriptive easement claims is that each element of a

prescriptive easement must be proven by the claimant by clear and

convincing evidence. Kostbade, 432 P.2d at 385; Warnack, 879 P.2d

at 723.

Furthermore, in order to avoid any question as to what

constitutes clear and convincing evidence in prescriptive easement

cases, we adopt the following definition of clear and convincing

evidence from our recent case law:

[Cllear and convincing proof is simply a requirement that

a preponderance of the evidence be definite, clear, and

convincing, or that a particular issue must be clearly

established by a preponderance of the evidence or by a

clear preponderance of proof. Th$s requirement does not

call for unanswerable or conclusive evidence. The

quality of proof, to be clear and convincing, is

somewhere between the rule in ordinary civil cases and

12
the requirement of criminal procedure--that is, it must

be more than a mere preponderance but not beyond a

reasonable doubt.

Matter of J.L. (Mont. 1996), 922 P.2d 459, 462, 53 St.Rep. 649,

651. This definition corresponds with the definition the

Legislature adopted for the "clear and convincing" evidence burden

required in punitive damage claims under 5 27-l-221(5), MCA.

Matter of J.L., 922 P.2d at 462.

Consequently, we hold that a prqscriptive easement claimant

must prove each element of the prescriptive easement claim by clear

and convincing evidence.

2. Did the District Court err in concluding that Wareings

established all elements of their prescriptive ditch easement

claim?

To establish a private prescriptive easement, the claimant

must show "open, notorious, exclusive, adverse, continuous and

uninterrupted use of the easement for the full statutory period."

Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 233, 915 P.2d 840,

843. Schreckendgust contends that the District Court's findings of

fact are not supported by substantial evidence and that the

District Court misapplied the law to conclude that Wareings had

established an easement by prescription. Specifically,

Schreckendgust argues that Wareings failed to prove two elements of

their prescriptive easement claim; that is, their use was neither

exclusive nor adverse.

The District Court in its Amended Finding of Fact No. 24

states that "Wareing has had the exclusive use of the 'Samuel

13
Miller Ditch' since 1960." Schreckendgust argues that the District

Court does not set forth its analysis or provide a citation to

testimony which supports this finding. Schreckendgust further

contends that the District Court does not make a corresponding

conclusion of law regarding the element of exclusivity.

We disagree that the District Court must provide analysis and

a citation to the record for its findings of fact. We have stated

To determine the effect of Rule 52(a), M.R.Civ.P.,

it is necessary to first define what is meant by the

terms "findings of fact and conclusions of law." This

Court has said that findings of fact and conclusions of

law are not the judgment, but merely the foundation for

the judgment. This foundation need not consist of a

multitude of evidentiary facts, but must be comprised of

ultimate facts.

In other words, the findings of fact required by

Rule 52(a) is nothing more than a recordation of the

essential and determining facts upon which the District

Court rested its conclusions of law and without which the

District Court's judgment would lack support.

In re the Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d

936, 938 (citation omitted).

Here, the District Court heard testimony, reviewed evidence

and made the determination that Wareings' use of the ditch in

question was exclusive since 1960. The District Court is only

required to set forth the ultimate facts of the case and it did so.

Therefore, the District Court's Amended Finding of Fact No. 24 is

adequate for the purposes of Rule 52(a), M.R.Civ.P. Moreover, upon

review of the trial record, we conclude that substantial evidence

supports the District Court's finding that Wareings have had

exclusive use of the ditch since 1960. Wareings, including their

14
son, testified extensively about their own use and maintenance of

the ditch since 1960 for diverting irrigation water from one Horse

Creek to Wareings' property. Additionally, Wareings testified that

throughout their ownership, they rented out their property to

others, who also used the ditch to convey irrigation water to

Wareings' property.

Furthermore, contrary to Schreckendgust's argument, the

District Court does make a corresponding conclusion of law

regarding the element of exclusivity. In Amended Conclusion of Law

No. 2; the District Court states that Wareings have proven, by

clear and convincing evidence, all the elements of a prescriptive

easement, including that of exclusivity. This conclusion, combined

with the rest of the District Court's findings of fact and

conclusions of law, provides the foundation for the District

Court's judgment that Wareings' have a prescriptive easement across

Schreckendgust's property.

Schreckendgust, nevertheless, asserts that the District Court

misapplied the law of exclusivity. Schreckendgust argues that

Wareings offered no proof that their right was separate from the

rights of others to use the ditch. Schreckendgust claims Wareings

did no~t use the ditch exclusively, but rather shared the use of the

ditch with many other landowners i:n the area. Therefore,

Schreckendgust asserts, Wareings could never assert an exclusive

right based on the simple fact that other people used the ditch

also. We, again, disagree.

15
This Court dealt with a similar issue 73 years ago. See Hays

v. De Atley (1923), 65 Mont. 558, 212 Pac. 296. In Hays, the

plaintiff, in his complaint, claimed the right to use one half of

the capacity of an irrigation ditch while conceding that the

defendants had the right to use the other half of the ditch's

capacity. The defendants responded that based on this claim to

only one half the capacity of the ditch, the plaintiff's use could

not have been exclusive. Therefore, the defendants argued that the

complaint failed on its face. We held that the plaintiff's

complaint was not subject to such an attack, explaining that:

[Tlhe term "exclusive" as employed by the courts in

enumerating the elements of prescription does not mean

that no one else may use the ditch except the plaintiff,

the claimant of the easement. It means no more than that

his right to use it does not depend on the like right in

others. Plaintiff's use may have been exclusive within

the meaning of the rule even though defendants used the

ditch, so long as their use did not interfere with the

use by plaintiff. . . . The rule has its foundation in

the general principle, recognized by all the authorities,

that the owner of the servient estate may use his

property in any manner and for any purpose consistent

with the enjoyment of the easement by the claimant.

Hays, 212 Pac. at 298 (citations omitted).

Likewise, Wareings are claiming a prescriptive easement for

use of the irrigation ditch to convey their allotted water from One

Horse Creek. Whether others, including Schreckendgust, also used

the ditch does not affect Wareings' claim. Despite the other

landowners' use of the ditch, Wareings' use was still exclusive

within the meaning of the rule. That is, Wareings' claim of

adverse use did not depend upon the other landowners' use of the

ditch. See m, 212 Pac. at 298. Consequently, we conclude that

16
the District Court properly applied the law relating to the element

of exclusivity in this prescriptive easement claim when it

determined that Wareings' use was exclusive since 1960.

Finally, Schreckendgust argues that Wareings' use was

permissive, not adverse. Schreckendgust claims that the record

indicates that Wareings' predecessor-in-interest, William E.

Gleason, used the ditch with permission. Specifically,

Schreckendgust testified that in 1937, Schreckendgust and his

father had a conversation with Gleason wherein Gleason said he had

received permission from Schreckendgust's predecessor-in-interest,

Excelsior Realty, to extend the ditch to what is now Wareings'

property. Schreckendgust asserts that Wareings failed to refute

this evidence of original permissive use, and, therefore, Wareings

cannot now claim that their use of the ditch was adverse.

Schreckendgust also contends that the District Court minimized the

impact of his testimony concerning the conversation with Gleason,

heard no testimony contradicting his own, failed to make a finding

that his testimony was so lacking in credibility so as to discard

it and ignored his policy of permissive use. Once more, we

disagree.

After a claimant has established the elements of a

prescriptive right, a presumption of adverse use arises and the

burden shifts to the landowner affected by the prescriptive claim

to establish that the claimant's use was permissive. Tanner v.

Dream Island, Inc. (1996), 275 Mont. 414, 425, 913 P.2d 641, 648;

Lemont Land Corp. v. Rogers (19941, 269 Mont. 180, 185, 887 P.2d

17
724, 727-20. If the landowner proves the use is permissive, a

prescriptive easement cannot be established. Lemont, 887 P.2d at

728. Here, the District Court concluded that Wareings, by clear

and convincing evidence, established the elements of a prescriptive

right and thereby raised the presumption that their use of the

ditch was adverse. Furthermore, the District Court explained that

the burden to rebut this presumption then shifted to

Schreckendgust.

Yet, the District Court found, in Amended Finding of Fact No.

16, that Schreckendgust's testimony concerning the 1937

conversation wherein Gleason had received "permission" to extend

the ditch "appears to be [Schreckendgust'sl own self-serving

conclusion." Additionally, contrary to Schreckendgust's

contention, in Amended Finding of Fact No. 20, the District Court

found. evidence contradicting Schreckendgust's testimony of

permissive use. In fact, the District Court found that

Schreckendgust himself testified on cross examination that neither

Wareings, nor their predecessors-in-interest, expressly sought his

permission to use the ditch. Instead, Schreckendgust testified

they would notify him when they turned on the water in the ditch.

The court found that while Schreckendgust perceived this as an

implied request for permission, other witness testimony indicated

that this notification was only neighborly custom.

As a result of these findings, the District Court, in Amended

Conclusions of Law Nos. 5 and 6, concluded that Schreckendgust

failed to rebut the presumption of adverse use, again pointing out

18
that the only evidence Schreckendgust presented was his own "selfserving and unverifiable hearsay testimony" regarding the 1937

conversation with Gleason noted above. The District Court

described Schreckendgust's testimony as a conclusion having no

basis in the record. Furthermore, the District Court concluded

that both parties testified that for approximately the past 50

years, neither Wareings, Il0r their predecessors, asked

Schreckendgust for permission to use the ditch, but rather used it

as a matter of right.

The district court is in a better position to observe the

witnesses and judge their credibility than this Court. Double A&

Corp. v. Newland & Co. (19951, 273 Mont. 486, 494, 905 P.2d 138,

142. Therefore, "[wle will not second guess the district court's

determination regarding the strength and weight of conflicting

testimony." Double AA Corp., 905 P.2d at 142. Moreover, we review

a district court's findings to determine whether substantial

evidence supports those findings, not contrary findings. Rafanelli

v. Dale (Mont. 19961, 924 P.2d 242, 248, 53 St.Rep. 746, 750.

Consequently, after reviewing the District Court's findings,

we note only that the District Court did not "ignore"

Schreckendgust's testimony concerning his policy to give permission

to use the ditch. Rather, the District Court considered this

testimony along with Schreckendgust's testimony concerning the 1937

conversation with Gleason and weighed this against testimony given

by Wareings and other witnesses concerning the nature of Wareings'

use of the ditch. The court described the contradicting character

19
of the parties' testimony and determined that Schreckendgust's

testimony concerning the Gleason conversation was a "self-serving

conclusion" and "unverifiable hearsay" and, thereby, effectively

discarded it.

By making these findings, the District Court determined that

the testimony given by Wareings and other witnesses was more

credible than Schreckendgust's testimony. Based upon this

determination, the District Court concluded that Wareings

established a presumption of adverse use and Schreckendgust failed

to rebut this presumption. The court's decision was grounded in

the record, in its judgment of the witnesses' credibility and in

the law. Accordingly, we hold that the District Court's findings

of fact are supported by substantial evidence and that the District

Court properly determined that Wareings' use was adverse and not

permissive.

3 . Under the doctrine of estoppel, are Wareings precluded

fromasserting a prescriptive easement right against Schreckendgust

after they acquired an express ditch easement from a neighboring

landowner over property previously owned by Schreckendgust?

Schreckendgust asserts that Wareings, in 1989, obtained an

express ditch easement from Steve Schertenleib who owns Florence

Orchard Homes Lot 38, a lot he purchased from Schreckendgust in

1988. Schreckendgust argues that by obtaining this ditch easement,

Wareings admitted that they were not entitled to make a

prescriptive easement claim with respect to Lot 38. Therefore,

Schreckendgust concludes, Wareings should be estopped from

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asserting a prescriptive easement across Lots 19 and 20 because

Schreckendgust owned these lots with Lot 38, as one unit, until he

sold Lot 38 to Schertenleib.

Schreckendgust relies on Kephart v. Portmann (1993), 259 Mont.

232, 237, 855 P.2d 120, 123. Schreckendgust points out that in

Kephart, we concluded that the plaintiffs were estopped from

challenging the defendants' ditch right because the plaintiffs had

acknowledged the defendants' superior ditch right in a 1960 Ditch

Agreement. Schreckendgust suggests that the Kevhart situation is

"nearly the mirror image" to the situation concerning Lot 38.

Therefore, Schreckendgust argues that because Wareings have

acknowledged the superior rights of Schreckendgust's successor,

clearly they should be estopped from denying the superior rights of

Schreckendgust.

We find Schreckendgust's argument unpersuasive. Because

estoppel is an affirmative defense, Schreckendgust bears the burden

of proof. Rule 8(c), M.R.Civ.P.; § 26-l-401, MCA; § 26-l-402, MCA.

See also, Insurance Specialists, Inc. v. Longfellow (1982), 201

Mont. 132, 135, 654 P.2d 500, 502; Baker Nat'1 Bank v. Lestar

(1969) .I 153 Mont. 45, 50-51, 453 P.2d 774, 777. In Keuhart, we

carefully considered the six elements of equitable estoppel and the

evidence supporting each element to determine that the plaintiffs

were estopped from challenging the defendants' ditch rights.

Keuhart, 855 P.2d at 123. In this case, Schreckendgust could meet

his burden of proof only by specifically arguing that each element

of estoppel is present and providing evidence in support. Yet,

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Schreckendgust did not develop or fully argue any of the estoppel

elements, either in the District Court or now on appeal.

In fact, in arguing on appeal that we should apply the Kephart

rationale, Schreckendgust fails to identify any of the six elements

of equitable estoppel. Instead, Schreckendgust makes a simple

conclusory statement that because "the ditch claimant [Wareingsl

has acknowledged the superior rights of the landowner's successor

[Schertenleibl, he clearly should be estopped from denying the

superior rights of the landowner himself [Schreckendgust].l' It is

Schreckendgust's burden, not this Court's, to establish that the

elements of estoppel are met, and we conclude that Schreckendgust

has failed to meet his burden in this case. Accordingly, we hold

that Wareings are not estopped from asserting their prescriptive

easement claim.

4. Did the District Court err when it failed to expressly

limit the scope of Wareings' prescriptive ditch easement both as to

location and method of maintenance?

In its Amended Conclusion of Law No. 8, the District Court

stated:

Plaintiffs do therefore possess an easement by

prescription across Defendant's real property for the

conveyance of their allotted water rights from One Horse

Creek by the course shown in the Water Resource Survey

for Ravalli County and labeled by that publication as the

"Samuel Miller Ditch."

Schreckendgust argues that the above language fails to limit

the scope of Wareings' easement for the irrigation ditch. He

contends that while he counterclaimed in this suit to quiet title

to numerous lots in Florence Orchard Homes, the ditch only crosses

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Lots 19 and 20. Furthermore, Schreckendgust argues that Wareings

have offered no proof of any claim to any parcels in Florence

Orchard Homes other than Lots 19 and 20. Therefore, he asserts

that the easement should be specifically limited to Lots 19 and 20.

Wareings argue that within Amended Conclusion of Law No. 8,

the District Court specifically delineated an easement for the

irrigation ditch where it is presently located. Therefore, they

contend that the District Court properly limited the scope of the

easement.

We have stated that when a prescriptive easement is acquired,

"the right of the owner of the dominant estate is governed by the

character and extent of use during the period requisite to acquire

it." Warnack, 879 P.2d at 724 (quoting Marta v. Smith (1981), 191

Mont. 179, 183, 622 P.2d 1011, 1013). The evidence shows that

Wareinqs, during the prescriptive period, used the "Samuel Miller

Ditch" to convey their allotted water from One Horse Creek to their

property. Furthermore, in Amended Conclusion of Law No. 8, the

District Court adequately limits the scope of Wareings'

prescriptive easement based on their use during the prescriptive

period.

First, the District Court specified that the character of

Wareings' use of the ditch easement was to convey their allotted

water from One Horse Creek. Second, the District Court specified

the extent of Wareinqs' use by indicating that the location of the

ditch was shown in the Water Course Survey for Ravalli County and

labeled as "Samuel Miller Ditch." See Appendix A. Therefore, the

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District Court need not expressly limit the scope of the easement

to Schreckendgust's Lots 19 and 20 in addition to its reference to

the location of the ditch as shown by the Water Resources Survey

for Ravalli County. Certainly, the District Court's reference to

the Water Resources Survey for Ravalli County adequately indicates

the location of the ditch as it crosses Schreckendgust's property.

Schreckendgust also argues that the District Court did not

limit the scope of Wareings' method of maintaining the ditch.

Schreckendgust notes that in Amended Finding of Fact No. 22 the

District Court found that Wareings' maintenance of the ditch

"consisted merely of shovel and hand cleaning." Schreckendgust

maintains that although Wareings failed to offer proof that the

scope of maintenance of the ditch should go beyond shovel and hand

cleaning, the District Court did not expressly limit Wareings'

maintenance of the ditch to shovel and hand cleaning. Wareings

respond that no one offered evidence that any large scale

maintenance was needed on the ditch. Therefore, Wareings contend

that, by implication, their maintenance of the ditch is limited to

their historical method of shovel and hand cleaning.

The District Court, in Amended Finding of Fact No. 22, found

that Wareings, throughout the prescriptive period, maintained the

ditch by shovel and hand cleaning. Wareings' method of maintaining

the ditch cannot exceed the method used during the prescriptive

period. See Marta, 622 P.2d at 1013. That is, Wareings'

maintenance of the ditch is limited to shovel and hand cleaning.

The District Court did not commit reversible error by failing to

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expressly limit Wareings' maintenance of the ditch to shovel and

hand cleaning.

In conclusion, the District Court adequately limited the scope

of Wareings' prescriptive easement as to the location of the ditch

in Amended Conclusion of Law No. 8. Furthermore, the District

Court did not commit reversible error by failing to expressly limit

the scope of Wareings' prescriptive easement as to their method of

maintenance.

5 . Is Schreckendgust entitled to attorney fees under S 70-

17-112, MCA?

Schreckendgust argues that if he is successful in defeating

Wareings' prescriptive easement claim on appeal, he would then be

the prevailing party and entitled to attorney fees under 5 70-17-

112, MCA. However, we have affirmed the District Court on all

issues raised on appeal; therefore, Wareings are still the

prevailing parties. Accordingly, Schreckendgust is not entitled to

attorney fees under § 70-17-112, MCA.

6. Should this case have been remanded for a new trial?

Schreckendgust, in his supplemental brief, argues that the

Montana Supreme Court erred when it ordered the District Court to

reconsider its findings of fact and conclusions of law using the

proper burden of proof. Schreckendgust contends that the Montana

Supreme Court placed the District Court in the position of

determining whether its original application of the lower burden of

proof was reversible or harmless error. Therefore, Schreckendgust

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argues that the Montana Supreme Court should remand this case for

a new trial. We disagree.

In our May 14, 1996 Order, we ordered the District Court to

reconsider its findings of fact and conclusions of law applying the

clear and convincing burden of proof to the existing record. The

facts contained in the record were established during trial.

Whether the quantum of the evidence presented at trial satisfies

merely a preponderance of evidence burden or the higher clear and

convincing burden of proof is, in this case, solely within the

court's purview. Therefore, in remanding the case to the District

Court with instructions to reconsider its findings of fact and

conclusions of law by applying the clear and convincing burden of

proof to the existing record, we merely directed the court to

determine whether the existing record was sufficient to satisfy the

higher burden. The application of a burden of proof does not alter

the underlying facts or the law; it simply determines whether the

party with the burden has successfully borne the obligation which

the law has placed upon him to prove his case by a certain quantum

of evidence. Here, the trial court determined that even when

applying a higher burden of proof, Wareings had successfully

established the elements of their prescriptive easement claim. On

the basis of the record here, we do not disagree with the District

Court.

Schreckendgust, nevertheless, argues that only by remanding

for a new trial can he make a motion for substitution of the

District Court Judge under § 3-l-804(1) (g), MCA, and thereby insure

26
the District Court's impartiality. Schreckendgust argues that the

District Court Judge could not provide him with an impartial review

when he reconsidered the original findings of fact and conclusions

of law. Schreckendgust explains that the current District Court

Judge, prior to his election, served as opposing counsel in an

action concerning title to real property which was decided in

Schreckendgust's favor. After the current District Court Judge was

elected, Schreckendgust brought two additional real property cases

before him. In both, Schreckendgust's claims were defeated.

Schreckendgust notes that he appealed both cases, including this

case currently before us.

Schreckendgust further notes that he was involved in yet a

third case before this same District Court Judge, and promptly made

a motion for substitution. Schreckendgust contends that the

District Court Judge's former position as counsel in a suit

involving Schreckendgust was adverse, and now his recent decisions

as District Court Judge continue to be adverse. Therefore,

Schreckendgust asserts "it is fundamentally unfair that

[Schreckendgust] was not afforded the due process protection of

having a substitute District Judge hear the evidence and issue new

Findings of Fact and Conclusions of Law that applied the correct

burden of proof." We disagree.

Aside from finding nothing in the record that would support a

conclusion that the District Judge was biased or partial,

Schreckendgust had two separate opportunities to move for

substitution of district court judge during the original trial.

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First, under 5 3-l-804(1), MCA, each adverse party is entitled to

one substitution of a district judge. Second, under 5 3-l-805,

MCA, Schreckendgust was permitted to make a motion for

disqualification for cause. Schreckendgust failed to timely make

either motion. Clearly, Schreckendgust was not denied due process

in this case. Rather, he voluntarily waived his rights to

substitute or disqualify the District Court Judge. Accordingly, we

conclude that Schreckendgust's argument that we should have

remanded this case for a new trial is without merit.

Affirmed.

We Concur:

Justices

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