No. 84-171 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

BRETA 0. KRAVIK, 

Plaintiff and Appellant, 

YVONNE R. LEWIS, 1mR.Y BENEPE, 

et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McKinley Anderson, Bozeman, Montana 

For Respondent: 

Landoe, Brown Law Firm, Bozeman, Montana 

Berg, Coil, Stokes & Tollefsen, Bozeman, Montana 

- 

Submitted on Brief: Sept. 26, 1984 

Decided: December 4, 1984 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This appeal is from a iudgment of the Gall-atin County 

District Court following a suit for partition. 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 five east, 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-sees were 

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.nch manager. Vandenhook supervised 

the several farmers who actively worked the property. 

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 of 
pa-rcels and water company stock. The appendix to this opinion indica-tes this distribution of parcels which was eventually final ized. 

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 to this wa.ter. A.t this time 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 filed March 10, 1983, 

described these rights for the first time and alleged that 

plaintiff had. refused to agree on an equita.ble division of 

such water rights. 

At a pretrial conference September 15, 1983, the parties agreed that the land and the Middle Creek water would be 

divided as previously described. A pretrial order signed by 

counsel for the parties stated that the parties were "not in 

agreement on the dj-vision of West Gallatin Canal Company; and 

that the West Gallatin Canal Company would not divide shares 

into less than 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 property was divided by settlement. Ironically the only remaining contested. property was a half share in 

a water companv that was stipulated as being indivisible. The 

parties further stipulated that the defendants Mary 

Schoenbach and Yvonne Lewis gave up their jnterest in the 

West Gallatin water 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-es agreed 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 the West Gallatin 

water was used to supplement Middl-e Creek 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 Creek water passes over the Gallatin 

canal via a pipe. The pumped water is dumped into the Middle 

Creek ditch where it flows north to the Kravik parcel and a 
sprinkler 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 

Kittles would receive the one-half share in the West 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 the partition 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 standard was recently enunciated specificzll-y in 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) , 

668 P.2d 251, 255, 40 St.Rep. 1375, 1380. 

Appellant attacks the basic fairness of the court's 

decision awarding the West Gallatin water to the defendants. 

It is argued that all Breta Kravik desired was to have her 

name 1-eft on 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 a partition proceeding. Such an action has been traditionally recognized as a 

means by which cotenants, unwilling and incapable of managing 

property jointly, sever their interests and exercise independent control over the resulting parcels. 

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 acreage may be irrigated. 

The fact that one party may have received less water than it 

started with does not make the partition inequitable. See 

Sullivan v. Sullivan (1.971), 82 N.M. 554, 484 P.2d 1264 (fact 

that lands partitioned to the plaintiff had more water did 

not render the partition inequitable where 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 suff ici-ent water for irrigatj on. The farmer ' s practice 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 testimony was not supported by any other 

witness. Numerous farmers who I-ived on and vrorked the land 

for decades stated it was unusual for the canal flows to 

reach a level where water rights were actually limited by the 

ditch walker. In any case, the parcel most in need of the 

West Gallatin water was the "dry parcel," previously referred 

to, in the southwest quarter of Section 27. 

This brings us to a second consideration concerning the 

equity of this partition. Partitions should be fashioned to 

cause the least degree 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 considera tion 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 incapable of being irrigated by 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 Benepe place among the cotenants. 
I J 

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 law basis for such compensation. 

Section 70-29-209, MCA, provides that a court may 

adjudge compensation to be made by one party to another when 

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 a partition by 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 the word "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 respective parcels. 

Furthermore, this issue was never raised in the pleadings or at trial. Counsel lost his hid for the West Gallatin 

water at trial and raises owelty as a new theory before this 

Court. An appellate court is not a proper forum for testing 

alternative or 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-cable or 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-lows the expense to 

be divided in proportion to the parties' interests. A recent 

decision of this Court as well. 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, we must 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.11 the property and appurtenant rights excepting 

the West Gallatin water. Kravik objected to this part of the 

division. 

The defendants first mentioned. the disputed water share 

in their answer filed in March 1983. When the partition suit 

proceeded to trial, plaintiff's counsel argued for cooperative and joint use of the West Gallatin water. 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. See Williams v. 

Miranda (19581, 159 Cal.App.2d 143, 323 P.2d 794 (where the 

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 services were for the interest of 

plaintiff alone and not for the common benefit). 

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 

in partition are for the common benefit of all parties to the 

action. . . " 48 P. at 744. While it may have been possible 

in the nineteenth century to broadly generalize about partition proceedings, such is not the case today. Nonetheless, 

Murray is immediately distinguishable: the Silver Bow mining 

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, it was a true partition action, a far cry from the case at bar which began with 
a complaint for partition and ended with a plea for cooperative use. 

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 Gallatin water 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 requires a 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 our decision. 

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 southern half respectively of the 

northwest quarter of the northwest quarter of Section 27. 

This language contradicts finding of fact no. 5, the pretrial 

order dated September 15, 1983, stipul-ation for entry of 
judgment dated December 16, 1983, and the judgment pursuant 

to stipulation also dated 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.strict Court will 

have t.he opportunity to clarify the award of the West 

Gallatin water right. 

The District Court is affirmed in all. respects except 

for the d.iscrepancies described above. The cause is remanded 

solely for the purpose 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: