No. 90-095 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROBERT C. LINCOLN and MEGAN LINCOLN, 

Husband and Wife; JACK NOLAND and 

BETH NOLAND, Husband and Wife, 

Plaintiffs 

WESLEY J. PIEPER and FAYE 

Husband and Wife, 

Defendants 

and Respondents, 

E. PIEPER, 

and Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas W. Frizzell; Tipp, Frizzell & Buley; 

Missoula, Montana 

For Respondent: 

Richard DeJana, Kalispell, Montana 

Filed: 

Submitted on Briefs: August 9, 1990 

Decided: September 20, 1990 

Clerk 
~ustice R. C. McDonough delivered the Opinion of the Court. 

The defendants Wesley J. pieper and Faye E. Pieper appeal the 

order of the Montana Eleventh Judicial District Court, Flathead 

County, granting partial summary judgment to plaintiffs Robert C. 

and Megan Lincoln and Jack and Beth Noland, holding that the 

Lincolns and Nolands have a right to use a water system passing 

through the defendantst and the plaintiffst properties. We affirm. 

The Piepers raise the following issues on appeal: 

(1) Did the District Court err in holding that a conveyance 

of land and a water right "with appurtenancesn from the parties 

common grantor created and transferred an easement for the 

plaintiffs to conduct water across the defendantst property and 

deliver it to the plaintiffst properties? 

(2) Did the District Court err in concluding that there were 

no genuine issues of material fact in this case that would preclude 

a grant of summary judgement? 

The parties in this case are all owners of residential 

properties located along the western shore of Flathead Lake near 

~akeside, Montana. The properties containing the disputed water 

conveyance system were once completely owned by Charles S. Bennett. 

In 1921 Bennett filed for domestic use water rights to serve 

approximately ten acres, including the three parcels currently 

owned by the Piepers, Lincolns and Nolands. In 1945 and 1946 

Bennett subdivided the acreage conveying land with appurtenances 

as well as one-sixth and one-third interests in this domestic use 

water right to the Lincolnst and Nolandst predecessors, 

2 
respectively. At some time, as to which the record is unclear, 

Bennett constructed a system of pipes, pump, and tank for the 

purpose of drawing water from Flathead Lake and conveying it to 

the property. This system passed through properties that 

ultimately became the defendants1 and both plaintiffs1, to a tank 

located on property now outside the three parcels. The defendants 

drew water from that tank up until October, 1983. 

The Piepers1 predecessor Herlick conveyed the property on 

which the Pieper residence is located to the Piepers in 1977, 

I1subject to easements for existing underground water lines." 

Property immediately surrounding the tank was transferred to 

the Piepers in 1984, from a predecessor, Sheffield, who also 

derived his title from Bennett, I1subject to a permanent easement 

for the maintenance, repair, and replacement of the existing water 

tank and water pipelines, including the right of ingress and egress 

for such purposes (said water tank and pipelines are a part of a 

water distribution system, said system not serving the premises 

hereby conveyed.)I1 

The Piepers' predecessors maintained and repaired the water 

tank and system; some predecessors charged the other users a small 

fee to offset electrical costs of pumping, others chose not to 

charge. Ten to twelve families jointly used the water system in 

question along with the Piepers1 predecessors in interest. The 

Lincolnsl predecessors, the Morrisons, were receiving water through 

the system in 1959. Likewise, the Nolands1 predecessor, Shea, used 

a spigot attached to the water pipe system for drinking and 
household water beginning in 1968. The Nolands were verbally 

informed by Shea that drinking water was obtained via that spigot 

when they purchased from Shea in 1978. 

The Piepers purchased their property in 1977 at a time when 

the spigot on the adjoining property was freely used by Shea. 

Shortly before the Lincolns purchased their property on April 2, 

1982, the Piepers became aware that the Nolands had access to and 

used the water system. The Piepers also knew that the Lincolns 

had connected their new house to the pipe running through the 

Lincolnsl property. After purchasing their property, the Piepers 

made no changes to the water system until approximately October 

13, 1983, when the Piepers disconnected the water pipe leading from 

their property to the plaintiffs1 properties, prohibiting any 

potable water from reaching either of the plaintiffs1 properties. 

The Piepers refused the plaintiffs1 demands to reconnect the pipes 

and refuse to allow the plaintiffs access to reconnect the pipes. 

The plaintiffs filed for a preliminary injunction on July 17, 

1984, requesting that the Piepers be restrained from interfering 

with the re-connection of water lines. The plaintiffs further 

requested that the injunction be made permanent. On April 26, 1985 

the plaintiffs moved for partial summary judgment on the issue of 

whether the Piepers were liable for interfering with the 

plaintiffs1 property rights. On April 10, 1986, the court entered 

its findings of fact and conclusions of law granting partial 

summary judgment to the plaintiffs on the issue of liability. The 

Piepers1 subsequent motion to reconsider was denied. Eventually 
after a trial the jury returned a verdict for the plaintiffs of 

$8,000 in actual damages and $10,000 in punitive damages. The 

Piepers now appeal the findings of fact and conclusions of law 

granting partial summary judgment on liability. 

The Piepers primary' contention on appeal is that the 

conveyance of a partial interest in a water right does not create 

ownership or a right to use the water system, pipes, pump, and 

tank, and further does not create an easement for maintenance and 

repair of the system by the plaintiffs. They essentially argue 

that while a conveyance of land with appurtenance^^^ includes a 

conveyance of a water right it does not include the transfer of the 

water conveyance system. his argument is based on the principle 

that a water right and a right to carry water across another's 

land, an easement, (most often in a ditch and thus often referred 

to as "ditch rights1'), are distinct, separate rights of property. 

Harrier v. Northern Pacific Ry. Co. (1966), 147 Mont. 130, 134, 

410 P.2d 713, 715. Because such rights are separate and distinct 

they may be conveyed separately and the loss of one does not 

necessarily require loss of the other. Connolly v. Harrel (1936), 

102 Mont. 295, 300, 57 P.2d 781, 783. However, the rule that these 

property rights are separate and distinct and may be severed from 

one another does not affect the long standing rule that if a water 

right passes as an appurtenance, the means of conveyance of the 

water, unless in someway severed, likewise passes: 

[I]t is a rule, in accordance with natural justice and 

reason, that, where one sells a house or a farm, every 
right will pass to the purchaser which is necessary to 

the complete use and enjoyment of the property conveyed, 

unless expressly reserved. Easements or servitudes are 

either personal or real, as, for instance, when a right 

of way is granted in favor of a particular person or 

persons, the sale of the estate will not carry with it 

the right which is confined to the persons; but where, 

by destination a right of way attaches to and in favor 

of a certain house, farm, ranch, or plantation or a 

certain right of drainage exists in favor of the farm, 

or the use of a certain ditch and water for irrigating 

of a farm, they will pass by the deed, even without the 

use of the word I1appurtenancesv; for the acquisition of 

the easement or servitude was intended for the benefit 

of the estate, and by destination is to be considered as 

incidental to the use of and as part and parcel of the 

realty. 

Tucker v. Jones (1888), 8 Mont. 225, 231, 19 P. 571, 573. Thus, 

this Court has held that the conveyance of a tract of irrigated 

land with its appurtenances also conveys the ditch, as well as the 

water right, necessary to the cultivation, use, and enjoyment of 

the land, just as fully as though the grantor had described it in 

express terms in the deed itself. Mussleshell Valley Farming and 

Livestock Co. v. Cooley (1929), 86 Mont. 276, 294, 283 P. 213, 218; 

- see - also Castillo v. Kunnenmann (1982), 197 Mont. 190, 196, 642 

P.2d 1019, 1024; Sections 70-17-101(11), 70-15-105, MCA. Clearly, 

use of the water conveyance system in this case is necessary for 

the plaintiffs to exercise their water rights and thus should be 

I1considered as incidental to the use of and part and parcel of the 

realty." Tucker, supra. Furthermore, examination of the chain of 

title and inspection of the property upon purchase by the Piepers 

would have revealed the existence of plaintiffs1 interest in the 

water system, and a reasonable inquiry would have disclosed that 

the Piepersl land was "burdened with easements, in favor of 
Plaintiffs, for access to the water system, pipe, pump and tank, 

for maintenance and repair and use for pumping water from a 

j ointly-held water appropriation. 'I (Conclusion of Law No. 2) . 

Thus, the Piepers had at least constructive, if not actual, notice 

that they took their property subject to easements in favor of the 

plaintiffs. See, e.s., Otero v. Pacheco (1980), 94 N.M. 524, 612 

P.2d 1335. The deeds indicate that the grantors intended the 

plaintiffs' predecessors in interest to have an easement in the 

water system necessary for the beneficial enjoyment of their 

property, thus these easements were appurtenant to the premises 

conveyed. 

Finally, the Piepers claim in their brief that there are 

genuine issues of material fact regarding whether the plaintiffs' 

predecessors use of the water system was permissive that would 

preclude summary judgment. See Rule 56 (c) , M.R. Civ. P. We note that 

in the proceedings below the Piepers also moved for summary 

judgment, thereby acknowledging that no genuine issues of material 

fact existed. More importantly, any facts regarding permissive 

use are only relevant toward the issues of whether the plaintiffs 

had acquired either a prescriptive right in the use of the water 

system, see e.q. Thomas v. Barnum (1984), 211 Mont. 137, 684 P.2d 

1106, or whether the plaintiffs had a mere license to use the 

system as opposed to an easement by implication. Because we have 

ruled above that the use of the water system is an easement 

appurtenant to the water right and the land conveyed, any issue of 
permissive use is rendered' immaterial to the case. 

The plaintiffs have a property interest in the water system 

as an appurtenance to their properties, and the Piepers may not 

interfere with the exercise of such rights. However, this opinion 

does not in any way determine how any costs of maintenance and 

pumping should be allocated among the parties using the system as 

such matter was not fully addressed below. 

The order of the District Court is 

AFFIRMED. 

Chief Justice