Graveley Simmental Ranch Co. v. Quigley, 01-373.

Decision Date26 February 2003
Docket NumberNo. 01-373.,01-373.
PartiesGRAVELEY SIMMENTAL RANCH CO., Clifford E. Graveley, McIntosh Ranch, a partnership, and William McIntosh, Plaintiffs and Respondents and Cross-Appellants, v. James C. QUIGLEY, Defendant and Appellant.
CourtMontana Supreme Court

Holly Jo Franz, Gough, Shanahan, Johnson & Waterman, Helena, Montana, For Appellant.

Leanne M. Schraudner, Schraudner & Hillier, Bozeman, Montana, For Respondents.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 This case arises out of a landslide occurring between two irrigation ditches near Avon, Montana. The Third Judicial District Court in Powell County, Montana, assigned joint liability for the damage caused by the landslide to the two ditch owners, Clifford Graveley (Graveley)1 and James Quigley (Quigley), and required that Quigley pay some of Graveley's attorney's fees. The District Court also issued rulings on Quigley's existing easement rights as they pertain to Graveley's and William McIntosh's (McIntosh)2 property. The parties appeal and cross-appeal. We reverse in part and affirm in part.


¶ 2 The parties challenged several aspects of the District Court's ruling. A restatement of the issues is:

1. Did the District Court err in concluding that all previous court cases limited the capacity of Quigley's irrigation ditch easement to 800 miner's inches?

2. Did the District Court erroneously limit Quigley's secondary ditch easement rights?

3. Did the District Court err by apportioning equal fault for the damages caused by the landslide to Graveley and Quigley?

4. Did the District Court erroneously require Quigley to pay some of Graveley's attorney's fees?

5. Did the District Court err in refusing to grant a new trial on the injunction temporarily limiting Quigley's ditch flow to 400 miner's inches?

6. Did the District Court err in its award of damages to both parties?

¶ 3 We address each of these issues below.


¶ 4 The history of these families and their claims to water rights from Ophir Creek is long and colorful. Since 1865, at the latest, a Quigley has claimed a legal right to water flowing through Ophir Creek in Powell County, Montana, and has protected that legal right through litigation. Quigley v. Birdseye (1892), 11 Mont. 439, 28 P. 741. Graveley and McIntosh first appeared as named parties protecting their water rights from this creek in the 1928 case, Quigley v. Victor Gold Mining Co., Cause No. 1185 (MT 3rd Jud. Dist.). These three families have pursued their litigious protection of this valuable water source through numerous Powell County lawsuits, three of which ultimately reached this Court. See Quigley v. McIntosh (1930), 88 Mont. 103, 290 P. 266; Quigley v. McIntosh (1940), 110 Mont. 495, 103 P.2d 1067; Graveley v. Quigley (1963), 142 Mont. 596, 386 P.2d 60.

¶ 5 In the Victor Gold Mining case, the court in Powell County set out the Ophir Creek water rights of various families. The court recognized that the Quigley family had established the right to 25 miner's inches of Ophir Creek water in 1865 and another 100 miner's inches in 1912. During those early years, the Quigley family used a then-existing ditch to divert water from Ophir Creek. In 1911, however, they constructed the currently existing ditch (Quigley ditch or Quigley Ophir Creek ditch), which has been used without interruption since its construction. The Quigley ditch conveys water from Ophir Creek across the land of various landowners, including Graveley and McIntosh, and terminates on the Quigley property in the Three Mile Creek drainage area.

¶ 6 In 1929, Quigley's predecessor in interest filed a petition to appropriate 800 miner's inches from Ophir Creek. Quigley v. McIntosh (1930), Cause No.2038 (MT 3rd. Jud. Dist.). As part of the appropriation proceeding, Quigley's ancestor hired E.J. Strasburger (Strasburger), a civil and mining engineer, to survey the Quigley Ophir Creek ditch. In its Findings of Fact and Conclusions of Law, the Third Judicial District Court granted and decreed that Quigley was entitled to 800 inches of Ophir Creek water. The court adopted Strasburger's survey description of the Quigley ditch as having a "carrying capacity of eight hundred miners' inches." The court then expressly permitted Quigley to divert and convey water from Ophir Creek through the Quigley ditch "to the extent of eight hundred inches."

¶ 7 In 1960, Graveley and McIntosh filed two lawsuits against Quigley in the Powell County court. In one suit, Graveley and McIntosh v. Quigley, Cause No. 4234 (MT 3rd Jud. Dist.), Graveley and McIntosh sought to establish themselves as the rightful owners of the Quigley Ophir Creek ditch. Also, in October 1960, Graveley and McIntosh obtained a temporary restraining order (TRO) to prohibit Quigley's father, Clifford, from enlarging the Quigley ditch as he was cleaning it. Graveley and McIntosh v. Quigley, Cause No. 4311 (MT 3rd Jud. Dist.). After a show cause hearing, an Injunction Pendente Lite in Cause No. 4311 was issued in December 1960, prohibiting Quigley from expanding the ditch beyond its dimensions as described in previous cases. However, the Injunction mistakenly described the ditch's capacity as 500 miner's inches. As a result of the TRO and Injunction, Clifford Quigley ceased cleaning operations of his ditch. While Cause No. 4311 was pending, the court decided Cause No. 4234 and issued its Order in March 1962.

¶ 8 Prior to the Cause No. 4234 Order being issued, however, Graveley constructed his own ditch off of Ophir Creek in 1961. The Graveley Ophir ditch (Graveley ditch), which is smaller than the Quigley ditch and taps Ophir Creek near where the Quigley ditch taps the creek, is located below the Quigley ditch and generally follows the same course as the Quigley ditch.

¶ 9 The March 1962 ruling in Cause No. 4234 established that Quigley was the rightful owner of the Quigley Ophir Creek ditch and prohibited Graveley and McIntosh from using the ditch. (Graveley and McIntosh appealed this Order but the Montana Supreme Court affirmed the District Court. See Graveley v. Quigley (1963), 142 Mont. 596, 386 P.2d 60

.) In addition, the court defined, in its Finding number three, the dimensions of the Quigley ditch as "six feet in width on the bottom and nine feet in width on top, and is two feet in depth" and having a "carrying capacity of 800 miners' inches." It based the description and capacity on the 1930 Decree and Judgment in Cause No.2038. The court then stated in its Conclusions of Law that Quigley was the owner of the Ophir Creek Ditch "described more particularly in the Court's Finding number three, and have the right to flow 925 inches of the waters of Ophir Creek in and through said ditch."

¶ 10 After Cause No. 4234 was appealed and resolved, Quigley turned his attention back to Cause No. 4311 which had been pending since 1960. By way of a June 1965 motion and affidavit of Clifford Quigley, Quigley sought to have the Injunction Pendente Lite modified to change the ditch's carrying capacity from 500 miner's inches to 800. Graveley and McIntosh objected to the modification. The court held a show cause hearing and on June 25, 1965, entered an Order and Injunction in Cause No. 4311. The Order modified the Quigley ditch carrying capacity from 500 to 800 miner's inches and enjoined Quigley from expanding the ditch beyond the dimensions described in previous cases. Moreover, the Order defined, in detail, the extent of Quigley's ditch easement, including the secondary easement for maintenance and access. Quigley, thereafter, posted the $5000 bond required by the Order which allowed him to return to the ditch cleaning and maintenance project that had triggered the lawsuit. He was bound this time, however, by the conditions set out in the Order and Injunction. No final hearing was ever held on the merits of Cause No. 4311 nor was any final order or judgment entered. It appears that the ditch has been maintained by Quigley in accordance with the 1965 Order since that time.

¶ 11 The District Court in the case at bar found that the 1965 Order is not legally binding because the case was never pursued to finality. It nevertheless redefined Quigley's secondary easement rights, as to inspection, repair, maintenance, and operation of the ditch, to be the same as those set out in the 1965 Order.

¶ 12 In 1982, all water users filed statements of claim for their water rights. Quigley filed a claim for an 800 inch water right from Ophir Creek with a 1928 priority date. At some time between 1982 and 1993, Graveley filed an objection with the Water Court to Quigley's 1982 claim for 800 miner's inches. During 1993, while awaiting a hearing date with the Water Court, Graveley embarked on a substantial remodeling of his ditch. Because part of the Graveley ditch constructed in 1961 ran at a relatively flat grade, Graveley moved this portion of his ditch farther uphill and considerably closer to Quigley's ditch to obtain a better grade. This remodeling activity was extensive and significantly changed the contours and stability of the hillside. By the spring of 1994, a portion of Graveley's new ditch had settled downward. To resolve this problem, Graveley put in eight feet of pipeline across the settled area.

¶ 13 The Water Court, in March 1994, dismissed Graveley's objection to Quigley's claim for 800 miner's inches of water on res judicata grounds, i.e., Quigley's flow rate had been established by a final decree in a previous litigation in which Graveley's predecessor was a party. It found that the failure of Graveley's predecessor to object to the established flow rate during the earlier case barred Graveley from objecting to it in 1994. However, the Water Court then recited, generally, the various available legal theories that could be used to object to a decreed right, one of which was a...

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