No. 12544 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

CLIFFORD Y. NIXON and 

OLGA L. NIXON, husband and wife, 

Plaintiffs and Appellants, 

JELKE HUTTINGA and LOUWINA HUTTINGA, 

husband and wife, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable FJ. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellants : 

Landoe and Gary, Bozeman, Montana 

Hjalrnar B. Landoe argued, Bozeman, Montana 

Ronald K. Olson, Bozeman, Montana 

For Respondents: 

Bolinger and Wellcome, Bozeman, Montana 

Page Wellcome argued, Bozeman, Montana 

Submitted: December 4, 1973 

Decided : JAN 2 2 1974 

Filed: JAN 2 2 1974 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiffs Clifford Y. Nixon and Olga L. Nixon, husband and 

wife, appeal from a judgment dismissing their complaint in an action seeking an injunction and damages in connection with a claimed 

ditch right. The case was tried by the district court of Gallatin 

County, sitting without a jury. Following trial the district court 

granted defendants' motion to dismiss for failure to show a right 

to relief pursuant to Rule 41(b), M.R.Civ.P. Defendants are 

Jelke Huttinga and Louwina Huttinga, husband and wife. Hereinafter plaintiffs and defendants will be referred to in the singular. 

The dispute concerns an irrigation ditch which runs across 

defendant's land and connects Little Bear Creek with Big Bear Creek. 

Plaintiff proceeded on the theory that he had a ditch right by 

virtue of grant, explicitly rejecting any claim of right by adverse 

possession. ~efendant's answer put in issue the existence of this 

right. 

Plaintiff's proof was not extensive. He introduced his 

deed which conveyed to him a water right in Bear Creek and "water 

ditches appurtenant to said premises or used in connection therewith * * *." The deed also contained a general conveyance of his 

I' grantor's interest in any water ditches to the same belonging 

* * *.I' 

Plaintiff testified that the ditch in question was in existence 

some 38 years ago when he purchased the property and he had used it 

at irregular intervals, most recently in 1961 or 1962, to divert 

water from Little Bear Creek to a point on Big Bear Creek above his 

irrigation head works. On cross-examination plaintiff admitted 

the ditch was in such a state of disrepair that even apart from 

the damage done by defendant it was completely unusable. 

At plaintiff's request the district court took judicial 

notice of the judgment decreeing plaintiff a water right in Bear 
Creek, but the district court found that the judgment did not 

give plaintiff a right to divert water from Little Bear Creek. 

Here, the only question presented for review is whether 

or not the district court erred in holding that these facts under 

the applicable law failed to show a right to relief. We find 

the district court did not err in so holding. 

Because of the procedural decision to dismiss for failure 

of plaintiff's proof in the district court, we are constrained 

to view the evidence in a light most favorable to plaintiff. 

MacDonald v. Protestant Episcopal Church, 150 Mont. 332, 435 P.2d 

369. However, this does not relieve plaintiff of the burden of 

producing evidence in support of each element essential to his 

recovery. Section 93-1501-1, R.C.M. 1947. 

Plaintiff proceeded on the theory that he possessed by 

virtue of grant a right in the ditch in question. To establish this 

right plaintiff must show that the right claimed was in fact 

granted to him. Plaintiff attempted to show the grant of the 

ditch right through introduction of his deed with its conveyance 

specifically of the ditch rights connected with his water right 

on Bear Creek and generally of all water ditches belonging to the 

property. He also testified as to the use and existence of the 

ditch. 

While a warranty deed such as that offered by plaintiff is 

generally considered prima facie proof of good title (26A C.J.S. 

Deeds 5 182(f)) this presumption extends only to property specifically described by such deed. In this case the only ditch rights 

which can be said to be specifically described were those connected 

with the right on Bear Creek. 

The district court had before it the judgment awarding plaintiff a water right in Bear Creek. From that judgment the district 

court determined that the water right in Bear Creek did not give 

plaintiff a water right in Little Bear Creek. That judgment was 

not made a part of the record on this appeal. Accordingly, since 

we have no basis for review of the district court's determination, 
we must assume that the denial of a water right in Little Bear 

Creek was correct. Joy v. Little, 134 Mont. 82, 328 P.2d 636. 

It follows that the ditch in question cannot be a ditch which 

was specifically granted as connected with the water right. 

Since the ditch right was not one of those specifically granted 

by plaintiff's deed, the deed alone does not serve as prima facie 

evidence of plaintiff's claimed ditch right. 

To establish his claimed ditch right plaintiff must show 

not only that he was granted all "water ditches to the same belonging" but that the ditch he now claims was in fact a ditch 

which belonged to the property at the time of the grant. There 

was only plaintiff's testimony that the ditch was in existence 

and occasionally used. There was nothing to indicate the ditch 

b elonged to his grantor; that his grantor had some right therein; 

or even that his grantor claimed to have such an interest. The 

existence of the ditch and occasional use are as consistent with 

permissive use as they are with use by right. Plaintiff's 

failure to establish that this ditch was within the general grant 

contained in his deed of "all water ditches to the same belonging" 

is fatal to his claim of right by virtue of grant. 

The judgment of the district court f s affirmed. 

n 

/ ,/chief Justice 

............................... Justices. 
Mr. Justice Frank I. Haswell specially concurring: 

I concur in the result. Under the facts here, plaintiff's 

right to an injunction and damages requires establishment of a 

water right in plaintiff to the waters of Little Bear Creek. There 

is a complete failure of proof in this respect. 

Here plaintiff is attempting to supplement the waters 

of Big Bear Creek (in which he has a water right) by diversion 

from the waters of Little Bear Creek (in which he has no water 

right) and thus enhance his water rights to the detriment of others. 

Justice.