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 

Y' , ' . -4 Submitted on Briefs: November 11, 1990 

Decided: December 31. 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

Defendants Archie D. Hayden, Glenn W. 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 the defendants are 

entitled to attorney fees under 5 70-17-112(5), MCA. 

The plaintiff Richard L. Sharon brought this action in 

District Court to enjoin the defendants, owners of a ditch easement 

through his property from allegedly unreasonably increasing the 

burden on his servient tenement by 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 equipment to clear the irrigation 

ditch, constructing a roadway along the ditch and constructing 

gates at locations along Sharon's fence 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." 

The defendants answered by seeking court adjudication of their 

secondary easement rights under § 70-17-112, MCA. The defendants 

also requested reasonable attorney fees under § 70-17-112 (5), MCA. 
The District Court found for the easement holders (defendants) 

on all issues, refused Sharon's request for a permanent 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 Plaintiff Is 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 

to the easement, are decreed to have a secondary easement 

along the east bank of their irrigation ditch as it flows 

through Plaintiff Sharon's property, for reasonable use 

for access to and maintenance of their ditch, including 

inspection and regulation of water 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 

interfering with this use of the secondary easement along 

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 person may encroach upon or otherwise impair any 

easement for a canal or ditch used for irrigation or any 
other lawful domestic or commercial purpose, including 

carrying return water. 

(3) The provisions of subsection (2) do not apply if the 

holder of the canal or ditch easement consents in writing 

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 existed prior to April 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 issue was the extent of their easement to maintain 

their ditch across Sharon's property. The defendants sought to 

drive along the east ditch bank for cleaning and maintenance 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 ''prevailing party1' under 5 70-17-112, MCA, and therefore 

are entitled to costs and reasonable attorney fees. 

Sharon argues his conduct did not impair or encroach upon the 

defendants1 easement. In support of his argument, Sharon relies 

upon the District Court's conclusion no. 9, which states, !'The 

obtaining of an injunction by Plaintiff did not materially injure 
Defendants, therefore, each party 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 the benefits of the easement itself.'' Sharon contends that 

his blocking off the east side bank did not encroach upon the 

defendants1 easement. Since the District Court first recognized 

the right to "further burden1' Sharon's property in its order, 

Sharon claims he cannot be guilty of impairing or encroaching upon 

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 defendants1 secondary easement beyond its present 
existence, but allowed the defendants to take full advantage of 

their pre-existinq rights in relation to their use of the ditch 

easement. 

In Laden v. Atkeson (1941), 112 Mont. 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 

irrigation ditch: 

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 . . . To illustrate: "A person having an 

easement in a ditch running through the land of another 

may go upon the servient land and use so much thereof on 

either side of the ditch as may be required to make all 

necessary repairs and to clean out the ditch at all 

reasonable times.I1 (Citations omitted.) 

Here, the defendants did not acquire a new right when the 

District Court allowed them the use of the east bank. The District 

Court simply allowed the defendants to take advantage of their preexisting 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, which guarantees them a secondary easement, 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. Defendants1 costs and reasonable attorney fees 

include those fees incurred in this appeal. 

, -\ 

Chief Justice