NO. 90-405 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

RICHARD L. SHARON, Plaintiff, Respondent and Appellant,

ARCHIE D. HAYDEN, DAN C. HILL, GLENN W. HAYDEN, JERRY MEINE and RICHARD MEINE, Defendants and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellants: J. Blaine Anderson, Jr., Dillon,Montana James H. Goetz, Goetz, Madden & Dunn, Bozeman, Montana For Respondent: W. William Leaphart,Helena,Montana 

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. -4 Submitted on Briefs: November 11, 1990 Decided: December 31. 1990Justice John C. Sheehy delivered the Opinion of the Court.
Defendants Archie D. Hayden,GlennW. Hayden, and Dan C. Hill appeal from an order of the Fifth Judicial District Court, Beaverhead County, denying attorney fees. We reverse. The single issue on this appeal is whether thedefendants are entitled to attorney fees under 5 70-17-112(5), MCA. The plaintiff Richard L. Sharon brought this action in District Court to enjointhedefendants, ownersof a ditch easement through his property from allegedly unreasonably increasing the burden on his servient tenementby their use of their easement and for damages for their unreasonable use of the ditch easement. Specifically, Sharon complained the defendants unreasonably burdened his land by using heavy equipmentto clear the irrigation ditch, constructing a roadway along the ditch and constructing gates at locationsalong Sharon'sfence line to allow access to the roadway. Furthermore, in his complaint Sharon stated "Plaintiff is bringing this action to determine the extent of Defendants' secondary easement pertaining to the primary ditch easement. Pursuant to 5 70-17-112, MCA, Plaintiff is entitled to reasonable attorney's fees incurred in this matter." Thedefendantsansweredby seekingcourt adjudicationoftheir secondary easement rights under § 70-17-112,MCA. The defendants also requested reasonableattorney fees under § 70-17-112(5),MCA.TheDistrict Court found fortheeasement holders (defendants)

on all issues,refused Sharon'srequest for apermanent injunction, and denied Sharon any damages. The District Court's final judgment ordered the following: 1. Plaintiff Sharon's temporary restraining order of June 4, 1989, is dissolved, and PlaintiffIs prayer for a permanent injunction is denied. 2. The Plaintiff Sharon's claim for damages against Defendants Archie D. Hayden and Dan C. Hill is denied in full. 3. Defendants Archie D. Hayden, Dan C. Hill, Glenn W. Hayden,Jerry Meine and Richard Meine, in their positions as owners of the ditch, and their heirs and assigns as tothe easement,aredecreed to have a secondary easement along the east bank of their irrigation ditch as it flows through Plaintiff Sharon'sproperty, for reasonable use for access to and maintenance of their ditch, including inspectionand regulationofwater flow,and specifically including its use as a roadway. 4. Plaintiff, his heirs and assigns as owners of the servient tenement are permanently enjoined from interferingwith this use of the secondary easementalong the east bank of the ditch by the present owners of the ditch easement and their heirs and assigns. 5. Each party shall bear their own costs and attorneys fees

# . From this order, Sharon appealed and defendants crossappealed for attorney fees and costs. Subsequently, plaintiff dismissed his appeal. Section 70-17-112, MCA, states: 70-17-112. Interference with canal or ditch easements prohibited.

(1) A person with a canal or ditch easement has a secondary easement to enter, inspect, repair, and maintain a canal or ditch.

(2) No personmay encroach upon or otherwise impair any easement for a canal or ditch used for irrigation or anyother lawful domestic or commercial purpose, including carrying returnwater. (3) Theprovisionsof subsection (2)donotapply if the holder of thecanalorditcheasement consents inwriting to the encroachment or impairment. (4) Each canal or ditch easement obtained by prescription or conveyance is included within the scope of this section. Nothing in this section establishes a secondary easement where none existedprior toApril 14, 1981. This section does not affect contracts or agreements concluded prior to April 14, 1981. (5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney's fees. In the present case, the easement holders have prevailed completely. The issuewas the extent of their easementtomaintain their ditch across Sharon's property. The defendants sought to drivealong the east ditchbank forcleaning andmaintenance of the ditch. Sharon insisted that there was no such travel right along the east bank, and attempted to impede access to and maintenance of the irrigation ditch. The defendants contend that Sharon's actions impaired and encroached upon their easement rights, and therefore violated 5 70-17-112(2), MCA. The District Court found for the defendants, and held they had a right to use the east bank of the ditch as a secondary easement. Thus, the easement holders

are the ''prevailingparty1'under 5 70-17-112, MCA, and therefore

are entitled to costs and reasonable attorney fees. Sharonargueshis conductdid not impair or encroachupon the defendants1easement. In support of his argument, Sharon relies upon the District Court's conclusion no. 9, which states, !'The obtaining of an injunctionby Plaintiff did not materially injureDefendants, therefore, eachparty will pay their own attorney fees and costs." We disagree and find the evidence in this case supports a conclusion that Sharon impaired and encroached upon the defendants1 easement. Sharon had done so by his statements and threats of opposition to use of the east bank of the ditch, and by his attempts to force the defendants to acquire access through private land and through Sharon's own yard. The easement holders

were forced into District Court to re-establish their secondary easement rights. Meanwhile, the defendants had access to their irrigation headgate only by walking for almost a year, and could not use the east bank access to their irrigation ditch. Next, Sharon relying on District Court conclusion no. 2, 

## fiat argues he did encroach upon the defendants' easement. 

## 4 In conclusion no. 2 the court stated, "Defendants, as secondary easement holders, have a right to further burden the servient tenement beyond the specific terms of their easement, in order to obtain thebenefits of the easement itself.'' Sharon contends that his blocking off the east side bank did not encroach upon the defendants1easement. Since the District Court first recognized the right to "further burden1'Sharon's property in its order, Sharon claimshe cannot be guilty of impairing or encroachingupon

an access right which was not even recognized until the District Court decided the defendants could "further burden1' Sharon's property. The District Court's use of the phrase "further burden1'did not extend the defendants1secondary easement beyond its presentexistence, but allowed the defendants to take full advantage of their pre-existinq rights in relation to their use of the ditch easement. In Ladenv. Atkeson (1941), 112Mont. 302, 306, 116 P.2d 881, 883, we explained that a ditch owner's secondary easement grants the easement holder the right to reasonably use the banks of an irrigationditch: The right to enter upon the servient tenement for the purpose of repairing or renewing an artificial structure constituting an easement, is called a ''secondary easement,'' a mere incident of the easement that passes by express or implied grant or is acquired by prescription 

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# .. To illustrate: "Aperson having an easement in a ditch running through the land of another may go upon the servient land and use somuch thereof on either side of the ditch asmay be required to make all necessary repairs and to clean out the ditch at all reasonable times.I1 (Citationsomitted.) Here, the defendants did not acquire a new right when the District Court allowed them theuse of the eastbank. TheDistrict Court simplyallowed thedefendants totake advantageof theirpreexisting rights to clean and maintain their irrigation ditch by traveling along both banks. The District Court affirmed the defendants' rights to a reasonable secondary easement, namely "to enter, inspect, repair and maintain a canal or ditch." Section 70-17-112(1), MCA. In obtaining this ruling, defendants enforced subsection (1) of the statute,whichguaranteesthem a secondaryeasement,and subsection (2), which prevents a party from encroaching or impairing an easement for a canal or ditch.Accordingly, since defendants successfully enforced both of these provision of 5 70-17-112, MCA, they are entitled, as the prevailing party, to costs and reasonable attorney fees. Section 70-17-112(5), MCA. Defendants1costs and reasonable attorney fees include those fees incurred in this appeal.

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Chief Justice