No. 84-171

INTHE SUPREMECOURTOF THE STATEOFMONTANA
1984

BRETA 0.KRAVIK, Plaintiff andAppellant,

YVONNE R. LEWIS, 1mR.Y BENEPE, et al., Defendants and Respondents.

APPEAL FROM: DistrictCourt of theEighteenthJudicial District Inand for the County of Gallatin, TheHonorableThomas Olson,Judgepresiding.
COUNSEL OF RECORD:

ForAppellant: McKinley Anderson,Bozeman,Montana
ForRespondent: Landoe,Brown Law Firm,Bozeman,Montana 

### Berg,Coil,Stokes & Tollefsen, Bozeman,Montana

- Submitted on Brief: Sept. 26, 1984 Decided: December 4,1984Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This appeal is from a iudgment of the Gall-atinCounty District Court following a suit forpartition. The District Court awarded defendants certain stock, representing a water right, in the West Gallatin Canal Company and Breta Kravik appeals

# . Appellant Kravik originally filed her partition suit in Gal1atj.n County District Court on January 12, 1981. Mrs. Kravik and the respondents had previousl-y inherited a 320-acre tract of land south of Bozeman, Montana. This estate of inheritance, common1.y known as the Benepe place, constituted the western half of Section 27, Township two south,Range fiveeast,M.P.M., Gallatin County. 

### In addition to the real property, the estate included appurtenant water rights: two shares in the Middle Creek Ditch Company and one-half share in the West Gallatin Cana.1 Company. See appendix. The undivided interests of the cotenant devj-seeswere
as follows:



# ... Raymond 

### H. Kittle,Trustee 1/2



# ........ Breta 0. Kravik. 1/4



# ..... Mary Benepe Schoenbach 1-/16



# ........ Yvonne B. Lewis. ]-/I6



# ........ Bruce J. Kittle. 1/16



# ....... Raymond 

### H. Kittle. 1/16 None of the cotenants resided on the property; they retained Charles Vandenhook as a ra.nchmanager. Vandenhook supervised the several farmerswho activelyworked theproperty. On Vandenhook's suggestion, Rreta Kravik initiated the partition action in 1981. Kravik was represented in the action by McKinley Anderson. Vandenhook worked towards reaching 

### an amicable settlement between the parties. Ry mid-1982, the cotenants tentatively agreed on a division 

### ofpa-rcelsand water company stock. The appendix to thisopinion indica-testhis distribution of parcels which was eventually finalized. The parties further agreed that the two shares of the Middle Creek Ditch Company should be divided among the cotentants i.n direct proportion to their undivided interest in the estate of inheritance. Thus the Middle Creek water
was allocated: Raymond H. Kittle, Trustee

# . 1 share



# ...... Breta 0. Kravik. 1/2 share



# ... Mary Benepe Schoenbach 1/8 share



# ...... Yvonne R. Lewis. 1/8 share



# ...... Bruce J. Kittle. 1/8 share



# ..... Raymond H. Kittle. 1/8 share Conflict and the present controversy arose over the one-half share of West Gallatin water. Negotiations broke down in the summer of 1981 when Breta Kravik refused to relinquish her rights tothiswa.ter. A.t thistime it was the parties' belief that the West Gallatin Canal Company could not further fractionalize the one-half share. Kravik

## 's partition complaint made no mention about any of the appurtenant water right-s. Defendants' answer filedMarch 10, 1983, described these rights for the first time and alleged that plaintiff had. refused to agree on an equita.bledivision of suchwater rights. At a pretrial conference September 15, 1983, the partiesagreed thatthe land and theMiddle Creekwater would be divided as previously described. A pretrial order signed by counsel for theparties stated that the parties were "not in agreement on thedj-visionof West GallatinCanal Company; and that the WestGallatin Canal Company would not divide shares intolessthan 1/2 share."

### Reviewing these facts,we note that before the parties
ever entered the courtroom in this suit for partition, the balance of the propertywas divided by settlement. Ironically 

### the only remaining contested.property was a half share in
a

### water companv thatwas stipulated asbeing indivisible. The parties further stipulated that the defendants Mary Schoenbach and Yvonne Lewis gave up their jnterest in the West Gallatinwater and were not liable for any attorney fees in the action. In the course of the nonjury trial held December 16, 1983, 

### testimony was given by the pl-aintiff,the farmers who leased the land and the ranch manager. Witnesses for both sid-esagreed that the only water available to irrigate a certain 13.4-acre parcel in the southwest quarter of Section 27 

### was from the West Gallatin canal. The topography of the Renepe place and the established gravity flow of the water canals precludes the use of Middle Creek water on this parcel. For purposes of reference only, this parcel is labeled the "dry parcel" in the appended diagram. Witnesses for the defendants testified that the full amount of the one-half share of water, approximately fifty miner's inches, was required to build enough head in the diversion ditch leading away from the canal to reach all the dry parcel. The evidence further established that theWest Gallatin water was used to supplementMiddl-eCreek water in the irrigation of the plaintiff's parcel in the northwest quarter of Section 27. 

### The farmer accomplished this by pumping water out of 

### the West Gallatin canal where it crosses the Middle Creek ditch. The Middle Creekwaterpasses over the Gallatin canal via apipe. Thepumped water isdumped into theMiddle Creek ditch where it flows north to the Kravik parcel and asprinkler system. The tenant farmer used West Gallatin or Middle Creek water depending on the relative quantity available. The trial court filed findings of fact and conclusions of law February 7, 1384. These findings reflect the testimony summarized above. The court concluded that the defendants Kittleswould receive the one-half share in theWest Gallatin Canal. The parties were ordered to bear their own attorney fees. Kravik has appealed, raising the following issues: 1. Did the District Court err by awarding the defendants the one-half share in the West Gallatin Canal Company? 2. Assuming the water right was properly awarded to defendants,was the plaintiff entitled to compensation? 3. Was the plaintiff entitled to attorney fees for bringing thepartition action? 4. Are the findings of fact and conclusions of law ambiguous and in error?

The standard of review this Court employs in reviewing
a nonjury civil action is clear. Findings of fact are not set aside unless clearly erroneous. Rule 52(a)

### ,M.R.Civ.P. This standardwas recently enunciated specificzll-yin regard to a partition suit. See Palmer v. Palmer (Mont. 1983), 657 P.2d 92, 40 St.Rep. 21. The practical.effect of this standard is that this Court wil.1 not substitute its ju6gment for the trier of facts. Our function is confined to determining whether there is substantial credible evidence to support the court's findings. We view the evid.ence in a light most favorable to the prevailing party, recognizing that

### substantial evidence may conflict with other evidence and still support the findings. Lace17 v. Herndon (Mont. 1983)

### , 668P.2d 251, 255, 40 St.Rep. 1375, 1380. Appellant attacks the basic fairness of the court's decision awarding the West Gallatinwater to the defendants. It is argued that all Breta Kravik desired was to have her
name 1-efton the stock certificate so

### her tenant farmer could continue to use West Gallatin water when needed. The proposed findings of fact her attorney submitted to the court requested that she retain an undivided one-third interest in the one-half share along with Raymond Kittle and Bruce Kittle. Error is claimed by the trial court's failure to recognize jn findings of fact testimony that the water had been cooperatively used in the past and could be so used in the future. This argument sounds discordant in apartition proceeding. Such an action has been traditionally recognized as a
means by which cotenants,unwilling and incapable ofmanaging property jointly, sever their interestsand exercise independent control over the resultingparcels. The equity of this proceeding must be examined in its entirety. A 

### half section of farmland has been partitioned such that each cotenant has receive6 his or her correct share of the estate of inheritance. Each party has received legal rights to water such that tillable acreagemay be irrigated. The fact that one party may have received lesswater than it started with does not make the partition inequitable. See 

### Sullivanv. Sullivan (1.971),82N.M. 

### 554, 484 

### P.2d 1264 (fact that lands partitioned to the plaintiff had more water did 

### not render the partition inequitablewhere there was suffi-

### cient and permanent water on the property partitioned to defendant to serve the grazing acreage). The record reflects that the KravFk parcel has been awarded suffici-entwater for irrigatjon. The farmer

### 'spractice of commingling Gallatin and Yjddle Creek water was one of convenience more than necessity. While the plaintiff Rravik alleged a need to draw Gallatin water during a dry
summer in 1980, this testimonywas not supportedby any other witness. Numerous farmers who I-ivedon and vrorked the land for decades stated it was unusual for the canal flows to reach a levelwherewater rightswere actually limitedby the ditch walker. In any case, the parcel most in need of the West Gallatinwaterwas the "dryparcel,"previously referred to, in the southwest quarter of Section 27. Thisbrings us to a second consideration concerning the equity of this partition. Partitions should be fashioned to
cause the leastdegree of harm to the cotenants and to confer
no unfair advantage on any one cotenant. Prior use by one cotenant cannot be given greater weight than any other consideration in fashioning the partition. Gillmor v. Gil3.mor (TJtah 1982), 657 

### P.2d 736. 

### This adage is particularly true here, where the parcel. afforded plaintiff historically used West Gallatin water, but following partition, the "dry parcel" in the southwest quarter is more in need of this water--such land beinq incapableof being irrigatedby Middle Creek water without resort to an expensive sprinkler system. For the foregoing reasons,we hold that the partition of the property and appurtenant water rights was based on substantial credihle evidence and resulted in an equitable division of the Benepeplace among the cotenants.IJ 

### In lieu of an award of the West Gallatin water riqht, appellant alternatively requests compensation for the loss of the water right. We recognize that there is a statutory and common lawbasis for such compensation. Section 70-29-209, MCA, provides that a 

### court may adjudge compensation to be made by one party to anotherwhen it appears that a partition cannot be made equal between the parties. The statute recognizes the power of the court to make compensatory adjustment under ordinary principles of equity. This equitable practice in partition proceedings is known as the doctrine of owelty. See Chesmore v. Chesmore

(Okla. 1971), 

### 484 P.2d 516. 

### A basic premise of owelty is that there be inequality. The equalization of apartitionby the award of owelty should not be resorted to where it is possible to make a fair and equitable division without it. The use of theword "may" in section 70-29-209,MCA, reflects the discretionary nature of this role of the trial court. In the present case there is no inequality to warrant compensation. As previously discussed, the cotenants to the estate of inheritance each received sufficient water for their respectiveparcels. Furthermore, this issuewas never raised in the pleadings or at trial. Counsel losthishid for theWest Gallatin water at trial and raises owelty as a 

### new theory before this Court. An appellate court is not a proper forum for testing alternativeor overlooked theories of recovery.As a third issue, appellant claims the District Court erred in denying attorney fees. The partition statutes express1.y allow the award of such fees providing certain conditions are met. See section 70-29-218,MCA. The reason for this statutory exception is that counsel in a partition proceeding often incurs expenses that benefit all the cotenants. 

### A pa.rtition,whether it is ami-cableor a.dversariab, results in the cotenant's clear title and unfettered ownership. Therefore,wh.en costs are incurred by one party that serve the common benefit, the statute al-lowsthe expense to be divided inproportion to theparties' interests. 

### A recent decision of this Court aswell.as an ancient decision recognize this practice. Lawrence v. Donovan (~ont. 1983), 673 P.2d 130, 40 St..Rep. 1944;Murray v. Conlon (18971,19 Mont. 389, 48 

### P. 743. In addressing this issue,wemust look at the nature of the services rendered by appellant's attorney. The original complaint filed in January 1981 made no mention of the disputed water rights. 0nl.y land was sought to be partitioned. The ranch manager, Charles Vandenhook, actively sought an amicable settlement of the partition. To a large extent he succeeded, and in July 1981 the parties agreed on a division concerning a.11the property and appurtenant rights excepting the West Gallatinwater. Kravik objected to this part of the division. The defendants firstmentioned.the disputed water share in their answer filed inMarch 1983. When thepartition suit proceeded to trial, plaintiff's counsel argued for cooperative and jointuse of theWest Gallatinwater. As discussed,counsel has alternatively requested compensation before this Court.Fees expended by plaintiff's counsel are largely attributable to the controversy over the water right. As noted, the balance of the partition was accomplished by Charles Vandenhook acting directly with the cotenants. Plaintiff's counsel.litigated in an attempt to clear Kravik's title to an undivided interest in the water company. The work was performed only on behalf of the individual client. Therefore,we find that the services were not performed for the common benefit of the parties and are not subject to apportionment under section 70-29-218,MCA. SeeWilliams v. Miranda (19581, 159 Cal.App.2d 143, 323 P.2d 794 (wherethe plaintiff's action was purported to be one of partition but
was subsequently determined to be a proceeding to establish the plaintiff's ownership of an undivided one-half interest in trust property, attorney serviceswere for the interest of plaintiff alone and not for the commonbenefit). Appellant has relied 

### on this Court's 1897 decision of Murrav supra,where it was stated that "the statute [predecessor to section 70-29-218,MCA] recognizes that proceedings inpartition are for the common benefit of allparties to the action. 

# .." 48 P. at 744. While itmay have been possible in the nineteenth century to broadly generalize aboutpartition proceedings, such is not the case today. Nonetheless, Murray is immediately distinguishable: the Silver Bowmining claim at issue there was sold and the proceeds distributed because coownership of the claim was "productive of great inconvenience to the parties, and particularly the plaintiff." 48 P. at 743. In other words, itwas a true partition action, a far cry from the case at bar which began with

### a complaint forpartition and ended with a plea for cooperativeuse.

IV 

### As a final matter appellant points to a 

### claimed error in the lower court's conclusion of law. Conclusion of law
no. 1

### provides that the West Gallatinwater is awarded to the defendants Kittles and shall be appurtenant to the southwest quarter of Section 27. 

### Appellant correctly notes that Bruce Kittle and Raymond Kittle received as individuals the north one-half of the southwest quarter of the northwest quarter of Section 27 and the south one-half of the southwest quarter of the northwest quarter of Section 27 

### respecti~~ely.Raymond Kittle,as trustee,received the southwest quarter of Section 27. 

### See appendix. Appellant argues that the ambiguity in the judgment requiresa new trial. Where findings and conclusi.ons adopted by the trial court are supported by the evidence and are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, their adoption will not provide grounds for reversal. Matos v. Rohrer (Mont. 1983), 661 

### P.2d 443, 450, 40 St.Rep. 366, 375. Although there is technical merit in appellant's argument, the discrepancy does not merit a new trial or affect ourdecision. We do, however, remand this cause for clarification as
our 

### review has uncovered a 

### further inconsistency. Findings of fact nos. 7 

### and 8 

### grant Yvonne Lewis and Mary Benepe Schoenbach the northern and southernhalf respectivelyof the northwest quarter of the northwest quarter of Section 27. 

### This language contradicts finding of factno. 5,

### the pretrial order dated September 15, 1983, 

### stipul-ation for entry of

### judgment dated December 16, 

### 1983, and the judgment pursuant to 

### stipulation alsodated December 16, 

### 1983. Those documents indicate the opposite result, which is diagrammed in the appendix. There must be a 

### remand for clarification of the award of land parcels. At this time, the Di.strictCourtwill have t.he opportunity to clarify the award of the West Gallatinwater right. The District Court is affirmed in all. 

### respects except for the d.iscrepanciesdescribed above. The 

### cause is remanded solely 

### for thepurpose of correcting the findings of fact and. concl.usions of 1.a.w. Such corrections will not affect our decision. 

# 7i!!$. 

# && Chief Justice

We concur: