Grimsley v. Estate of Spencer

• Decision Date: 06 October 1983
• Docket Number: No. 82-417,82-417
• Citation: 40 St.Rep. 1585,670 P.2d 85,206 Mont. 184
• Parties: May GRIMSLEY, David Grimsley, Eva Oxarart, Lillian Boos, and Faye Seel, Plaintiffs and Appellants, v. ESTATE OF William R. SPENCER, Deceased, Defendants, Respondents and Cross-appellants.
• Court: Montana Supreme Court

Page 85

670 P.2d 85

206 Mont. 184

May GRIMSLEY, David Grimsley, Eva Oxarart, Lillian Boos, and Faye Seel, Plaintiffs and Appellants, v. ESTATE OF William R. SPENCER, Deceased, Defendants Respondents and Cross-appellants.

No. 82-417.

Supreme Court of Montana.

Submitted on Briefs June 16, 1983.

Decided Oct. 6, 1983.

Leaphart Law Firm, Helena, for plaintiffs and appellants.

Robert L. Johnson, Lewistown, for defendants, respondents and cross-appellants.

GULBRANDSON, Justice.

This is an appeal from a decision of the District Court of the Seventeenth Judicial District, Phillips County, the Honorable B.W. Thomas presiding in his capacity as District Judge and water judge, decreeing a first right to the plaintiffs to the use of 500 miner's inches of water of Dog Creek in southern Phillips County and an easement for an irrigation system in conjunction with that right; denying plaintiffs a prescriptive right to the remaining waters of the creek; and denying injunctive relief against the defendants for engaging in certain activities with respect to the creek and plaintiffs' irrigation system. Plaintiffs appeal from that portion of the decree denying them a prescriptive right to 1,000 miner's inches. Defendants cross-appeal from the grant of 500 miner's inches to plaintiffs. For the reasons stated below, we affirm the judgment of the lower court with respect to both appeals.

Plaintiffs and defendants have been embroiled in a six-year legal dispute over the use of waters from Dog Creek, which is located near the Sun Prairie community in southern Phillips County. The plaintiffs own a 160 acre tract of land, designated as the Northeast Quarter of Section 22, Township 24N., Range 31 E.M.M. The tract was originally owned by William R. Spencer, a relative of defendants. Spencer entered the area as a squatter prior to 1899, made a desert entry claim on the tract in 1901, and successfully proved-up in 1905. Spencer remained on the land until 1924, when the tract was lost in a foreclosure action. The land was subsequently purchased by Sherman Grimsley, a relative of plaintiffs, and has been in their family since 1924. Substantially all of the land is irrigable, and hay crops have been harvested thereon continuously since 1901.

Defendants own two tracts of land adjacent to the plaintiff's tract on the north and east. Dog Creek is an intermittently flowing stream arising in the Larb Hills, located to the east of plaintiffs' and defendants' land. The waters of the creek flow westerly through or near the described lands. Generally, the creek flows from melting snow and early rains in March and April, and again in June from rain. Occasionally, it will flow at other times during the year from heavy rains. Its waters are run-off surface waters.

On April 22, 1899, William R. Spencer claimed 500 miner's inches of water from Dog Creek through the use of a dam and ditch, for the purpose of irrigating the 160 acres of the Northeast Quarter. He filed a notice of appropriation, as required by law. His notice was filed with the clerk and recorder of Valley County (which at that time included the area now known as Phillips County) on April 22 and was recorded in Book 6 of Water Rights, page 80, records of Valley County. He proceeded diligently to divert and apply his claim to the Northeast Quarter. From the evidence produced at trial, it is clear that irrigation of the tract has continued virtually without interruption since 1901. The dam and ditch constructed by Spencer, and improved and maintained by Sherman Grimsley and the plaintiffs, are located on those tracts owned by defendants. Defendants also make use of the waters of Dog Creek, relying on claims filed subsequent to Spencer's in 1916 and 1920. Although measuring devices have never been used on the creek, evidence produced at trial suggested that the estimated capacity of the Dog Creek channel was approximately 1,500 miner's inches.

A county road runs from north to south along the east line of the Northeast Quarter, effectively separating the properties of plaintiffs and defendants and cutting across Dog Creek at about the point where William Spencer and the plaintiffs have diverted the waters of the creek. For many years, the road just ran through the creek. In 1954, however, the county constructed a high grade across the creek near the diversion point. The county installed three culverts, one to handle the Dog Creek channel at the north end of the grade, and two smaller culverts on the south end to accommodate the plaintiffs' water right. Plaintiffs connected to the southerly culverts by adjusting their ditch from the creek east of the high grade toward the west to the middle culvert, and west again away from the culvert to the Northeast Quarter. Under this system, the plaintiffs are served by the middle culvert. During times of excess flow, Dog Creek water flows toward the north culvert and spreads out, in part, flowing southwest toward the Northeast Quarter.

Between 1924 and 1948, Sherman Grimsley and the plaintiffs constructed holding and spreading dikes to manage and allocate the waters on their lands. Plaintiffs have always used all the waters flowing into this system until their needs are satisfied, after which any excess waters are released and allowed to flow on to lands owned by their neighbors, who have come to depend upon the excess flow. This system, which is apparently known to all residents of the Sun Prairie Community, has generally worked well since William Spencer first diverted Dog Creek over eighty years ago.

The seeds of the current dispute appear to have been planted after construction of the high grade in 1954. A process of silting commenced in the plaintiffs' ditch on the east side of the middle culvert, and weeds eventually started to grow in the silted area. In 1971, one of the defendants, Vance Spencer, cultivated the area to eradicate the weeds, and planted it with grass and alfalfa. He replanted the area in 1972. Unfortunately, Spencer's efforts had the effect of diverting water in the ditch northward away from the middle culvert, which serves the plaintiffs' tract. During the period 1974 to 1976, plaintiffs, on at least two separate occasions, attempted to enter the area and repair the ditch, but defendants denied them entry. In late 1976 and early 1977, the plaintiffs entered the land despite defendants' objections and restored the ditch. Defendants did not resist this entry or otherwise interfere with the work. Before repairs were completed, however, the run-off waters had gone down the channel created by Vance Spencer's cultivation and away from the middle culvert. There was no additional run-off and the plaintiffs were unable to irrigate and raise their usual crop in 1976.

From evidence produced at trial, it also appears that during the years between 1972 to 1976, plaintiffs tried to resolve their problems by installing barriers across the up-stream end of the north culvert in an attempt to raise the water level and force the flow back to the middle culvert. Vance Spencer removed these barriers, but during the same period installed and removed similar barriers to the culvert, ostensibly to apportion the water between the parties.

The disagreements between plaintiffs and defendants led to the filing of this law suit in 1977. In their original complaint, plaintiffs sought to enjoin defendants from diverting any waters from Dog Creek and from changing the channel of the creek. They also sought actual and punitive damages for the diminished 1976 hay crop and defendants' allegedly willful and oppressive behavior with respect to the exercise of plaintiffs' water use, but the claim for damages was waived before trial. More importantly, plaintiffs sought a decree that they were entitled to 500 miner's inches of the Dog Creek flow, based on William Spencer's 1899 claim, and all of the flow in excess of that claim (approximately 1,000 miner's inches) based on prescriptive use over the statutory period. Plaintiffs also sought an easement for construction and maintenance of the diversion system located on defendants' land. Defendants eventually filed an answer generally denying all the allegations and claims made by the plaintiffs. (An amended answer, filed over four years later, raised more specific defenses and asserted affirmative claims, but it was disallowed by the court.) The Department of Natural Resources and Conservation was invited to intervene, but declined and waived receipt of further pleadings, claiming no substantial interest in the outcome of the proceedings.

After nearly five years of additional pleading, pre-trial conferences, offers of settlement, and an unsuccessful attempt by defendants to obtain summary judgment, the case finally came to trial in March 1982. The court heard testimony from both sides concerning the nature of the dispute and plaintiffs' claims on the waters. After additional briefing, the court entered findings of fact and conclusions of law and entered a decree on July 28, 1982. The trial court decreed that plaintiffs had a right to 500 miner's inches of Dog Creek water, with a priority date of April 22, 1899, and an easement on defendants' land to maintain the diversion. The court found that plaintiffs had not acquired a prescriptive right to any amount of the waters in excess of 500 miner's inches. Further, the court concluded that there was insufficient evidence to show that defendants would interfere with plaintiffs' right in the future, and therefore denied the request for injunctive relief.

In its findings and memorandum accompanying the decree, the court elaborated on its conclusions with respect to the award of water rights. The court concluded that plaintiffs had failed to establish all of the elements of their prescriptive claim. Specifically, the court found no evidence that plaintiffs' use of any excess waters was hostile to that of defendants'. Plaintiffs did not show that they had used...