Engel v. Gampp

• Decision Date: 27 January 2000
• Docket Number: No. 98-107.,98-107.
• Citation: 2000 MT 17,993 P.2d 701,298 Mont. 116
• Parties: Celeste G. ENGEL, Plaintiff and Respondent, and Cross-Appellant, v. Eric C. GAMPP and Paula Lammers Gampp, Defendants and Appellants, and Cross-Respondents.
• Court: Montana Supreme Court

993 P.2d 701

2000 MT 17

298 Mont. 116

Celeste G. ENGEL, Plaintiff and Respondent, and Cross-Appellant, v. Eric C. GAMPP and Paula Lammers Gampp, Defendants and Appellants, and Cross-Respondents.

No. 98-107.

Supreme Court of Montana.

Submitted on Briefs March 18, 1999.

Decided January 27, 2000.

David L. Pengelly, Missoula, Montana; Philip J. O'Connell, Missoula, Montana, For Appellants.

Robert J. Phillips, Tammy Wyatt-Shaw, Phillips & Bohyer, Missoula, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Eric C. Gampp and Paula Lammers Gampp (Gampps) appeal from the judgment of the Twenty-First Judicial District Court, Ravalli County, awarding attorney fees to Celeste G. Engel (Engel) as the prevailing party. Engel cross-appeals, claiming the District Court erred in determining the scope of the injunction which it ordered in her favor.

¶ 2 We affirm in part, and reverse in part.

¶ 3 We address the following issues on appeal:

1. Did the District Court err in concluding that Engel was the prevailing party, pursuant to § 70-17-112(5), MCA?

2. Did the District Court grant Engel an injunction too narrow in scope given the findings of fact and conclusions of law entered in this matter?

Factual and Procedural Background

¶ 4 Like most complex litigation involving an irrigation ditch, this dispute arose from a simple misunderstanding between neighbors. Whatever goodwill existed between the parties was irrevocably dissolved on April 6, 1995, when Engel's son, Tom, drove through the Gampps' unlocked gate, up their driveway, and parked on their lawn for the alleged purpose of performing a routine inspection of the Cole Ditch. The ditch diverts water from Big Creek, which is located near Victor, Montana. The ditch runs first through the Gampps' property and then crosses Engel's adjacent property, providing both with water for their pastures and other irrigation uses.

¶ 5 Apparently, the rumors of "attack-trained" rottweilers that purportedly patrolled the Gampps' property did not deter Tom Engel in his mission that day. With a shovel in hand, he blithely walked across the Gampps' lawn in the general direction of the ditch, passing within 20 yards of their house. His unannounced presence on their property led to a confrontation between Tom and both Paula and Eric Gampp, resulting in an exchange of harsh words, and finally in their demand that Tom leave the property. In sum, Tom claimed he had a legal right to enter their property in the manner in which he chose that day; the Gampps, who had purchased the property in June of 1994, claimed that neither he nor anyone else had such a legal right.

¶ 6 On December 7, 1995, Celeste Engel filed suit to quiet title to her ditch easement. Specifically, she claimed she had a legal right to access the Cole Ditch and its headgate for the purpose of performing inspections, maintenance, and repairs by driving onto and across the Gampps' property. This alleged "historic" right included traversing the Gampps' property from the end of their driveway "by jeep or on foot approximately another 1/4 mile to the headgate which provides a point of diversion from Big Creek." Engel claimed that the Gampps were aware of this entire route at the time they purchased the property "because said route was visible and apparent on the premises." She further alleged that this route—which is essentially the route her son took in April of 1995—is the "only reasonable way to gain access to the portions of the Cole Ditch located on what is now the Gampp property for purposes of maintaining or repairing it or regulating the headgate."

¶ 7 Engel further claimed that during the irrigation season of 1995, the Gampps locked the gate to their property, thereby making the access to her headgate "inaccessible." She also alleged that the Gampps had advised her and her agents that "they had no right to cross [the Gampps'] land to access their headgate or maintain their ditch and threatened [Engel's] agent with physical harm and harm from [the Gampps'] dogs when he attempted to inspect the headgate." She alleged that the Gampps had represented to various parties that their rottweilers "were attack trained" and that they "run loose" on the Gampps' property.

¶ 8 Attached to the complaint was a copy of restrictive covenants which prohibit the ownership of more than two dogs "as pets" or allowing "any dog or cat to roam freely over the land ..." The covenants do, however, permit an owner to "raise ... small numbers of domestic animals." Engel claimed the Gampps kept at least five rottweilers, and would later testify that she understood the dogs were kept in a kennel and raised for money. Paula Gampp would testify that, at the time of trial, she owned three rottweilers, which she kept for breeding and show purposes.

¶ 9 The Gampps do not deny that Engel has a secondary easement, pursuant to § 70-17-112, MCA, which affords her the right of access to the Gampps' property. This particular statute provides that all persons who have a canal or ditch easement also have a secondary easement to "enter, inspect, repair, and maintain a canal or ditch." Section 70-17-112(1), MCA. As the District Court would find, this secondary easement is generally limited to whatever land on either side of the ditch is reasonably necessary to perform such inspections, repairs and maintenance. The District Court found that "Engel and her agents have accessed her headgate and point of diversion to inspect and regulate the water flow by walking along the Cole Ditch." This established route, however, is not once mentioned in Engel's complaint.

¶ 10 Even so, the statute does not define the location or scope of a secondary easement. Rather, the location and scope are determined by a reasonableness standard: whatever access is reasonably necessary to maintain and repair the ditch without unreasonably burdening the servient owner. Consequently, an ongoing dispute over where, how, when and why Engel could rightfully enter the Gampps' property in addition to the footpath eventually resulted in this lawsuit. Although this dispute for the most part was resolved at trial, which party "prevailed" in determining the location and scope of the secondary easement, and, accordingly, whether an encroachment or impairment occurred, is now in contention on appeal. Section 70-17-112(2), MCA, provides that "[n]o person may encroach upon or otherwise impair any easement for a canal or ditch used for irrigation or any other lawful domestic or commercial purpose, including carrying return water." Section 70-17-112(5), MCA, provides that "[i]f legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney's fees."

¶ 11 The determination of the reasonable location and scope of this secondary easement, and what may therefore be deemed an impairment or encroachment, requires a fundamental understanding of the underlying facts, beginning with the ditch itself.

¶ 12 The source of water for Cole Ditch, Big Creek, flows east from the Bitterroot mountain range and traverses the southern edge of the Gampps' property. Each irrigation season, water is diverted into Cole Ditch at the western end of the Gampps' property, and flows north, northeast, and then east, until it eventually passes through the northwest corner of Engel's adjacent property. The Gampps as well as Engel have rights to irrigate from Cole Ditch, along with several other down-flow property owners. Again, the Gampps do not deny that all parties with rights to Cole Ditch may access their property along either side of the ditch for such purposes as regulating the headgates, cleaning out the ditch, and routine inspection. In fact, a rough footpath near the ditch on the Gampps' property has apparently existed for at least 25 years for this purpose.

¶ 13 The problem lies in the fact that the route along the ditch is by no means the most convenient for all necessary repairs and maintenance. The ditch as it crosses the respective parcels is not located near a road. The surrounding terrain is forested and steep in places. Thus, to follow the Cole Ditch from the western border of Engel's 80-acre parcel, through the Gampps' 104-acre parcel, to the headgate on Big Creek cannot be accomplished by any other practical means than on foot.

¶ 14 Vehicle access to the Gampps' property requires driving west up River Run Road, a private road that runs parallel to Big Creek on the southern boarder of Engel's property. The road ends at the gate to the Gampps' property, where a fence running north-to-south separates their property from Engel's. A graveled entrance way continues west through the gate for approximately one-quarter mile, where it ends at a shed and garage which lie east of the house. From that point, there is no other established vehicle route to Cole Ditch. It was there, at the end of the Gampps' private entrance road near the garage, that Tom Engel parked in 1995, and proceeded across their lawn on foot. It is undisputed that in the past, prior to the Gampps owning the property, repairs and maintenance on the ditch required that vehicles and horses carry equipment and materials across the property from this same location.

¶ 15 Thus, the simple misunderstanding between the parties is whether, in fact, Engel's statutory secondary easement means that she has not one, but two means of access to the Gampps' property. In essence, this was the nature of her son's confrontation in April of 1995, when he drove as far onto the Gampps' property as the road permitted, and then struck out across their yard taking the shortest distance to the ditch. As the court's findings clearly indicate, he took this action after having performed the same kind of routine inspection in 1994 by following the traditional route along the ditch footpath. He likewise knew at the time that the Gampps had made it clear that they did not...