Butler v. Germann

Decision Date12 December 1991
Docket NumberNo. 91-072,91-072
Citation251 Mont. 107,822 P.2d 1067
PartiesOwen D. BUTLER and Erna D. Butler, Plaintiffs and Respondents, v. John V. GERMANN and Barbara A. Germann, Defendants and Appellants.
CourtMontana Supreme Court

David L. Pengelly, Knight, Maclay & Masar, Missoula, for defendants and appellants.

Jeffrey H. Langton, Hamilton, for plaintiffs and respondents.

TRIEWEILER, Justice.

Owen and Erna Butler sought an injunction requiring John and Barbara Germann to repair damage to an irrigation ditch that runs through the Germanns' property before delivering water to the Butlers' property. The District Court for the Fourth Judicial District in Ravalli County issued a preliminary injunction, and after a hearing, issued a permanent injunction, together with an award of damages, costs, and attorney's fees. The Germanns appeal. We affirm.

The issues are:

1. Did the District Court err in ordering the Germanns to repair the ditch?

2. Did the District Court err in permanently enjoining the Germanns from obstructing, encroaching upon, disturbing, or otherwise impairing the Butlers' ditch easement?

3. Did the District Court err in awarding the Butlers $2000 as damages?

4. Did the District Court err in awarding the Butlers attorney's fees and costs incurred subsequent to the preliminary injunction?

The Butlers and the Germanns own adjacent tracts of land in Ravalli County. Both have appurtenant water rights. The Waddell Ditch, which flows northward through the Germanns' property onto the Butlers' property, supplies the water rights of both parties.

The Butlers have historically irrigated their property by temporarily damming the Waddell Ditch. This caused water to back up in the ditch and then overflow the downslope bank of the ditch, irrigating their land in a sheet or flood. Topographical factors make this the most efficient means of irrigating the land in question.

The Germanns moved onto their property in March 1988. Without consulting the Butlers, John Germann attempted to change the course and flow rate of the ditch on his property by digging it deeper and cleaning out sediment. He also bladed off from 12 to 18 inches of the downslope bank and used the dirt as fill in his barnyard.

On June 28, 1989, the Butlers filed a complaint and requested a preliminary injunction to restrain the Germanns from interfering with the ditch. The Butlers alleged that the Germanns' modification of the ditch had reduced the water level in the ditch so far that the Butlers could no longer use it for sheet irrigation. They also claimed damages for a hay crop lost because of insufficient irrigation. The Germanns counterclaimed for damages allegedly due to flooding from the direction of the Butlers' property.

After a hearing on June 28, 1989, the District Court granted a preliminary injunction ordering the Germanns to raise the banks of the ditch to allow sheet irrigation of the Butler property. The court appointed Fourth Judicial District Water Commissioner Thomas Gale as special master to monitor the Germanns' repairs to the ditch.

Gale was satisfied with the adequacy of the Germanns' repair efforts. The Butlers, however, were not. At the permanent injunction hearing, they presented expert testimony that although the repairs had restored the flow in the Waddell Ditch to the Butler property, the repaired ditch banks were leaky and unstable.

The District Court entered judgment for the Butlers. It ordered the Germanns to raise the ditch banks to a uniform height throughout their property and then line the repaired ditch with bentonite. The court also permanently enjoined the Germanns from further interference with the ditch, awarded $2000 in damages to the Butlers, and denied the Germanns' counterclaim. The court then directed the Germanns to pay the Butlers' costs and attorney's fees.

I

Did the District Court err in ordering the Germanns to repair the ditch?

The fundamental purpose of any remedy is to return the plaintiff to his or her rightful position, "the position or state the party would have attained had the [wrong] not occurred." See generally Billings Clinic v. Peat Marwick Main & Co. (1990), 244 Mont. 324, 345, 797 P.2d 899, 913. The Germanns rely on this principle in accusing the District Court of "overkill." They suggest that the District Court was without power to require them to do more than restore the banks of the ditch to their former height, and they conclude that the District Court's judgment will compel them to provide the Butlers with a much better ditch than they had before.

We disagree. The mere restoration of the height of the ditch banks to their former level did not restore the ditch to its former integrity. That much was clear from all the evidence that was offered.

John Germann testified that in May 1990, after he partially restored the lower ditch banks in compliance with the District Court's preliminary injunction, the downslope bank of the ditch washed out close to the Butlers' fence. He admitted that he had not sufficiently compacted the material with which he restored the bank and that this caused the washout. He also admitted that there was potential for further washouts throughout his property for the same reason.

Stanton Cooper, the general manager of the Butler property, testified that he was not satisfied with the Germanns' partial repairs. He watched John Germann pile dirt back onto the downslope bank of the ditch. He testified that Germann used only a very thin layer of dirt and that water continued to seep through it, and that the seepage would continue unless the Germanns sealed the ditch.

It was his personal opinion that at the time of trial the partially repaired banks were insufficiently stable to hold the significant surges of natural runoff which could be expected to flow through the ditch during certain seasons of the year. He testified that the banks, as they existed at the time of trial, would soften, allow further seepage, and eventually wash out. Specifically, he did not believe that in the long run the partially repaired banks were stable enough to hold water in the fashion that was necessary for the Butlers to continue their historical practice of sheet irrigation.

Darwin Titeca, the Butlers' lessee, agreed that the Germanns' repairs were inadequate. He was familiar with the Waddell Ditch as it existed on the Germann property before the Germanns disturbed it in 1989. He testified that the partially repaired lower banks of the ditch were 12 to 15 inches lower than they had been before the Germanns interfered with them. He was concerned that without a court order requiring the Germanns to elevate the banks further they could wash out. He believed that if the Germanns did not immediately restore the banks the Butlers' hay crop would burn up again like it did in 1989. He explained that in 1989 after Germann disturbed the lower bank of the ditch the Butler property did not receive sufficient water because it was all washing out over the destroyed lower bank on the Germann property.

Barry Dutton, a soil scientist and irrigation specialist retained by the Butlers, inspected the Germanns' repairs and prepared a report which the District Court received into evidence. In large part, Mr. Dutton's conclusions formed the basis for the District Court's findings of fact. The relevant portion of that report stated as follows:

The soil material Mr. Germann has used to build up his ditch banks [in compliance with the preliminary injunction] is classified under the USDA-SCS system as a sandy loam. This soil type is quite permeable to water and significant leakage can be expected through these newly-constructed banks. The banks will seal themselves to some degree over a 5-10 year period but will always leak to some degree in this soil.

OPTIONS WHICH WOULD ALLOW MR. BUTLER TO IRRIGATE HIS FIELD
IN THE HISTORIC FASHION

* The most direct method for returning to pre-existing conditions would be for Mr. Germann to restore the ditch and banks to their original configuration. Banks should be 1-2 feet higher than the expected water level. They should be 3-4 feet thick on the downhill side and re-vegetated. Any construction activity will expose soils with high permeabilities which can be expected to suffer excessive significant leakage for 5-10 years and will always leak to some degree. Lining with bentonite, open-topped culvert or other material would prevent this problem. Bentonite should be used only under direction of SCS personnel or other qualified professional[s] using SCS specifications. All ditch re-locations and re-construction should be surveyed for proper grade and bank height.

* A second option is to have Mr. Germann build up the banks on his property to a greater height. Several important concerns must be satisfied for this to work satisfactorily. The banks must be of sufficient height and width (1-2 ft above the expected water level and 3-4 feet thick on downhill side). The banks must be re-vegetated. Either significant leaks must be expected for a period of 5-10 years, or the ditch must be lined. All ditch re-locations and re-constructions should be surveyed for proper grade and bank height.

During his testimony, Mr. Dutton explained that he made his recommendations simply to insure continued flow through the ditch on the Germanns' property and to avoid a problem with the ditch washing out in the future, thereby eliminating the flow of water to the Butlers' property. None of these potential problems was a cause for concern before the Germanns destroyed the banks of the ditch.

Even the Germanns' own expert, Andrew Fisher, testified that further restoration was necessary in order to guarantee the integrity of the restored ditch bank. Mr. Fisher, a civil engineer who specializes in water resources engineering, testified that for their own benefit he recommended to the Germanns that they strengthen the ditch bank in...

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