79 Ranch, Inc. v. Pitsch

• Decision Date: 29 July 1983
• Docket Number: No. 82-361,82-361
• Citation: 666 P.2d 215,204 Mont. 426,40 St.Rep. 981
• Parties: 79 RANCH, INC., a Mont. corp., and Harry Vandervoort, Plaintiffs and Respondents, v. Reuben C. PITSCH, Defendant and Appellant.
• Court: Montana Supreme Court

Page 215

666 P.2d 215

204 Mont. 426

79 RANCH, INC., a Mont. corp., and Harry Vandervoort Plaintiffs and Respondents, v. Reuben C. PITSCH, Defendant and Appellant.

No. 82-361.

Supreme Court of Montana.

Submitted April 7, 1983.

Decided June 21, 1983.

Rehearing Denied July 29, 1983.

Felt & Martin, Laurence R. Martin argued, Billings, for defendant and appellant.

Ask & Pratt, Thomas M. Ask argued, Roundup, Moulton, Bellingham, Longo & Mather, William Mather argued & William Forsythe argued, Billings, for plaintiffs and respondents.

GULBRANDSON, Justice.

Plaintiffs, 79 Ranch and Harry Vandervoort, began this action in 1977 seeking to enjoin defendant Pitsch from using water in Big Coulee Creek, and seeking a determination of each party's water rights in the creek. After a hearing, the District Court entered scant findings and established the following water rights and priorities:

"(a) Vandervoort--50 inches for use on W 1/2 Section 23-6N-21E., with priority date as of June 1, 1924.

"(b) 79 Ranch--45 inches for use on SW 1/4 Section 25-5N-19E., with priority date as of June 13, 1973.

"(c) Pitsch--68 inches for use on Section 35-5N-19E., with priority date as of July 1, 1976."

Pitsch and 79 Ranch appealed from this judgment, but the case was remanded for further findings by the District Court. See, 79 Ranch, Inc. v. Pitsch (1981), Mont., 631 P.2d 690, 38 St.Rep. 1048. On remand, the District Court amended its findings and conclusions, and then reentered the original judgment quoted above. Pitsch and 79 Ranch again appeal.

Pitsch, 79 Ranch, and Vandervoort own land along Big Coulee Creek in Golden Valley County, Montana. Pitsch lives immediately upstream of 79 Ranch. Vandervoort's ranch is about eighteen miles downstream.

In 1975, Pitsch bought his land from Bert Schaff. Bert Schaff had decided to begin irrigating his land in 1973 and filed a notice of appropriation for 30 cubic feet per second (c.f.s.) of water. He ordered a sprinkler system, but didn't receive all of the necessary parts and therefore never irrigated. When Pitsch bought the land and water rights, he installed a different sprinkler system and began irrigating in July 1976.

79 Ranch, operated by Eugene Schaff, also filed a notice of appropriation and ordered a sprinkler system in 1973. 79 Ranch installed the sprinkler system, similar to the one ordered by Bert Schaff, and began irrigating in July 1973.

Pitsch and 79 Ranch claim a portion of a water right established in 1893 by the Montana Cattle Company. Montana Cattle Company had filed a notice of appropriation and irrigated, by a series of ditches, land now owned by Pitsch and 79 Ranch. Testimony at trial indicated that irrigation by Montana Cattle Company stopped in 1911 or 1913.

Pitsch also claims a separate water right stemming from two notices of appropriation filed by Claude Hill, a successor in interest to 1/3 of the Montana Cattle Company water right and predecessor to Pitsch. These notices did not comply with the statutory procedures. Testimony at trial indicated that a few acres of Pitsch's land was irrigated in the 1920's. No firm evidence was presented, however, showing exactly when the ditches were used, how much water they carried, and which lands were irrigated at which times.

Vandervoort traces his water right from four notices of appropriation: 1,000 miner's inches filed in 1902, 100 miner's inches filed in 1909, 320 miner's inches filed on June 11, 1925, and 300 inches filed in 1926.

The dispute here arose in the dry summer of 1977. 79 Ranch and Vandervoort claim that when Pitsch began irrigating in June of 1977, there was insufficient water in the creek for their cattle and fields. Negotiations failed and this lawsuit followed.

While the main issue on appeal is whether the water rights claimed by Pitsch and 79 Ranch were abandoned, Pitsch has also raised the following other issues on appeal:

1. Whether the District Court erred by failing to find that Pitsch's predecessor in interest, Claude Hill, had acquired a water right in the 1920's.

2. Whether the District Court erred by finding that Bert Schaff failed to exercise reasonable diligence.

3. Did the District Court err in finding that Vandervoort's right to use 50 inches of water has a priority date of June 1, 1924?

4. Did the District Court err in finding that 79 Ranch may appropriate 45 inches of water under the June 13, 1973, notice of appropriation filed by Eugene Schaff?

The District Court found that the water rights claimed by Pitsch and 79 Ranch had been abandoned because the water had not been used for at least forty, and perhaps as many as sixty successive years. Pitsch and 79 Ranch argue that the mere showing of nonuse even for a long period of time, is not sufficient to support a finding of abandonment. We disagree.

Abandonment of a water right is a question of fact. Section 89-802, Revised Codes of Montana, 1947, (applicable here, repealed in 1973). Our scope of review is therefore limited to determining whether there is sufficient evidence to support the District Court's findings. Bagnell v. Lemery (1983), Mont., 657 P.2d 608, 40 St.Rep. 58. Forty years of nonuse is strong evidence of an intent to abandon a water right, and, in effect, raises a rebuttable presumption of abandonment. Because Pitsch and 79 Ranch have failed to rebut this presumption, the District Court's finding must be affirmed.

The appropriation of water is based on its beneficial use. When the appropriator or his successor in interest abandons or ceases to use the water for its beneficial use, the water right ceases. Section 89-802, R.C.M., 1947 (repealed 1973). This fundamental principle has long governed the determination of water rights in Montana. In Power v. Switzer (1898), 21 Mont. 523, 55 P. 32, this controlling policy of beneficial use was explained:

"... It has been a mistaken idea in the minds of many, not familiar with the controlling principles applicable to the use of water in arid sections, that he who has diverted, or 'claimed' and filed a claim of, water for any number of given inches, has thereby acquired a valid right, good as against all subsequent persons. But, as the settlement of the country has advanced, the great value of the use of water has become more and more apparent. Legislation and judicial exposition have, accordingly, proceeded with increasing caution to restrict appropriations to spheres of usefulness and beneficial purposes. As a result, the law, crystalized in statutory form, is that an appropriation of a right to the use of running water flowing in the creeks must be for some useful or beneficial purpose, and when the appropriator, or his successor in interest, abandons and ceases to use the water for such purpose, the right ceases. (Sections 1880, 1881, Civil Code.)" 21 Mont. at 529, 55 P. 32.

Water rights have therefore been limited to the amount of water actually put to a beneficial use, despite the amount of water diverted or claimed under a notice of appropriation. See also, Conrow v. Huffine (1914), 48 Mont. 437, 138 P. 1094; Peck v. Simon (1935), 101 Mont. 12, 52 P.2d 164; Galiger v. McNulty (1927), 80 Mont. 339, 260 P. 401.

In determining the abandonment of a water right, this Court has often recognized the rule that mere nonuse of the water does not constitute abandonment. To prove abandonment, one has to prove the other party intended to abandon his water right. Atchison v. Peterson (1872), 1 Mont. 561; Tucker v. Jones (1888), 8 Mont. 225, 19 P. 571; Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597; Musselshell Valley F. & L. Co. v. Cooley (1929), 86 Mont. 276, 283 P. 213; St. Onge v. Blakely (1926), 76 Mont. 1, 245 P. 532; Shammel v. Vogl (1964), 144 Mont. 354, 396 P.2d 103.

Nevertheless, several Montana cases have also recognized that nonuse, while not conclusive, is evidence of an intention to abandon. In Smith v. Hope Mining Co. (1896), 18 Mont. 432, 45 P. 632, this Court stated that nine years of nonuse "is certainly very potent evidence, if it stood alone, of an intention to abandon." 18 Mont. at 438. In our most recent case considering this issue, Holmstrom Land Co. v. Meagher Cty. Newlan Creek Water District (1980), Mont., 605 P.2d 1060, 37 St.Rep. 295, we stated that seventy-five years of nonuse is "clear evidence" of abandonment. 605 P.2d at 1069.

Here, the evidence clearly shows at least forty years of continuous nonuse of the water rights claimed by Pitsch and 79 Ranch. As in Smith and Holmstrom, such a long period of nonuse is strong evidence of an intent to abandon the water rights. In effect, such a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the reasons for nonuse. This conclusion is highly consistent with the fundamental policy that a water right does not mean possession of a quantity of water, but its beneficial use.

The Colorado Supreme Court recently expressed well how the burden of proof shifts onto the nonuser once a long period of nonuse has been shown:

"Under Colorado water law, abandonment of a water right requires a concurrence of nonuse and intent to abandon. However, intent is the very essence of abandonment.... Intent may be shown either expressly or by implication, with nonuse for a long period of time being evidence of an intent to abandon.... Nonuse alone will not establish abandonment where the owner introduces sufficient evidence to show that during the period of nonuse there never was any intention to permanently discontinue the use of water." [Citations omitted.] Beaver Park Water, Inc. v. City of Victor (1982), Colo., 649 P.2d 300, 302.

To rebut the presumption of abandonment, there must be established some fact or condition excusing long periods of nonuse, not merely expressions of desire or hope. C F & I Steel Corporation v. Purgatoire River Water Conservation District (Colo.1973), 183 Colo. 135, 515 P.2d 456; Cundy v....