No. 12544 INTHE 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:

## JAN22 1974 Filed:

## JAN22 

### 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 casewas tried 

### by the district court of Gallatin County, sittingwithout 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 andwife. Hereinafter plaintiffs and defendantswill be referred to in the singular. The dispute concerns an irrigation ditchwhich runs across defendant's land and connects Little Bear Creek with Big Bear Creek. Plaintiffproceeded on the theory that he had a ditch right by virtue of grant, explicitly rejecting any claim of rightby adverse possession. ~efendant'sanswerput 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 samebelonging 

# ** *.I'

### Plaintiff testified that the ditch in questionwas in existence
some 

### 38 years agowhen 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-examinationplaintiff admitted the ditchwas 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 BearCreek, but the district court found that thejudgment did not give plaintiff a right todivertwater from Little Bear Creek. Here, the only question presented forreview 

### iswhether
or not the district court erred inholding that these factsunder the applicable law failed to show a right torelief. We find the district court did not errin soholding. Because of the procedural decision todismiss for failure of plaintiff's proof in the districtcourt, we are constrained to view the evidence ina light most favorable to plaintiff. MacDonald v. Protestant Episcopal Church, 150 Mont. 332, 435 P.2d 369. However, this does not relieve plaintiff of theburden 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 inquestion. To establish this right plaintiff must show that the right claimed was in fact granted tohim. Plaintiff attempted to show the grant of the ditchright through introduction of his deed with 

### itsconveyance specifically of the ditchrights connected with hiswater right
on Bear Creek and generally of allwater ditches belonging to the property. He also testified asto theuse and existence of the ditch. While a warranty deed such as that offeredby plaintiff is generally considered prima facie proof of good title (26A C.J.S. Deeds 

### 5 182(f)) this presumption extends only toproperty specificallydescribed by such deed. In this case the only ditchrights which can be said tobe specifically described were those connected with the right on Bear Creek. The district court had before it thejudgment awarding plaintiff a water right inBear Creek. From thatjudgment the district court determined that thewater right inBear Creek did not give plaintiff a water right inLittle 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 inLittleBear Creek was correct. Joy 

### v. Little, 134 Mont. 82, 328 P.2d 

### 636. It follows that the ditch inquestion cannot be a ditchwhich
was specifically granted as connected with thewater 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 establishhis 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 atthe time of the grant. There
was only plaintiff's testimony that the ditchwas inexistence and occasionally used. There was nothing to indicate the ditch b elonged tohis grantor; that his grantor had some right therein;
or even that his grantor claimed tohave such an interest. The existence of the ditch and occasional use are as consistent with permissive use as they arewithuse by right. Plaintiff's failure toestablish that this ditchwas within the general grant contained inhis deed of "all water ditches to the same belonging" is fatal tohis claim of right by virtue of grant. The judgment of the districtcourt f

### s affirmed. n



## / ,/chief Justice



# ............................... Justices.

### Mr. Justice Frank 

### I. Haswell specially concurring: 

### I concur in the result. Under the factshere, 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 thewaters of Big Bear Creek (inwhich he has a water right) by 

### diversion from thewaters of Little Bear Creek (in which he has no water right) and thus enhance his water rights to the detriment of others.

Justice.