Kravik v. Lewis

Decision Date04 December 1984
Docket NumberNo. 84-171,84-171
Citation691 P.2d 1373,213 Mont. 448
CourtMontana Supreme Court
PartiesBreta O. KRAVIK, Plaintiff and Appellant, v. Yvonne B. LEWIS, Mary Benepe, et al., Defendants and Respondents.

Landoe, Brown, Planalp & Kammers, P.C., Berg, Coil, Stokes & Tollefsen, Bozeman, for defendants and respondents.

HASWELL, Chief Justice.

This appeal is from a judgment of the Gallatin County District Court following a suit for partition. The District Court awarded defendants certain stock, representing a water right, in the West Gallatin Canal Company and Breta Kravik appeals.

Appellant Kravik originally filed her partition suit in Gallatin County District Court on January 12, 1981. Mrs. Kravik and the respondents had previously inherited a 320-acre tract of land south of Bozeman, Montana. This estate of inheritance, commonly known as the Benepe place, constituted the western half of Section 27, Township two south, Range five east, M.P.M., Gallatin County. In addition to the real property, the estate included appurtenant water rights: two shares in the Middle Creek Ditch Company and one-half share in the West Gallatin Canal Company. See appendix.

The undivided interests of the cotenant devisees were as follows:

                Raymond H. Kittle, Trustee .. 1/2
                Breta O. Kravik ............. 1/4
                Mary Benepe Schoenbach ...... 1/16
                Yvonne B. Lewis ............. 1/16
                Bruce J. Kittle ............. 1/16
                Raymond H. Kittle ........... 1/16
                

None of the cotenants resided on the property; they retained Charles Vandenhook as a ranch manager. Vandenhook supervised the several farmers who actively worked the property.

On Vandenhook's suggestion, Breta Kravik initiated the partition action in 1981. Kravik was represented in the action by McKinley Anderson. Vandenhook worked towards reaching an amicable settlement between the parties. By mid-1982, the cotenants tentatively agreed on a division of parcels and water company stock. The appendix to this opinion indicates this distribution of parcels which was eventually finalized.

The parties further agreed that the two shares of the Middle Creek Ditch Company should be divided among the cotenants in direct proportion to their undivided interest in the estate of inheritance. Thus the Middle Creek water was allocated:

                Raymond H. Kittle, Trustee .. 1 share
                Breta O. Kravik ............. 1/2 share
                Mary Benepe Schoenbach ...... 1/8 share
                Yvonne B. Lewis ............. 1/8 share
                Bruce J. Kittle ............. 1/8 share
                Raymond H. Kittle ........... 1/8 share
                

Conflict and the present controversy arose over the one-half share of West Gallatin water. Negotiations broke down in the summer of 1981 when Breta Kravik refused to relinquish her rights to this water. At this time it was the parties' belief that the West Gallatin Canal Company could not further fractionalize the one-half share. Kravik's partition complaint made no mention about any of the appurtenant water rights. Defendants' answer filed March 10, 1983, described these rights for the first time and alleged that plaintiff had refused to agree on an equitable division of such water rights.

At a pretrial conference September 15, 1983, the parties agreed that the land and the Middle Creek water would be divided as Reviewing these facts, we note that before the parties ever entered the courtroom in this suit for partition, the balance of the property was divided by settlement. Ironically the only remaining contested property was a half share in a water company that was stipulated as being indivisible. The parties further stipulated that the defendants Mary Schoenbach and Yvonne Lewis gave up their interest in the West Gallatin water and were not liable for any attorney fees in the action.

                previously described.   A pretrial order signed by counsel for the parties stated that the parties were "not in agreement on the division of West Gallatin Canal Company;  and that the West Gallatin Canal Company would not divide shares into less than  1/2 share."
                

In the course of the nonjury trial held December 16, 1983, testimony was given by the plaintiff, the farmers who leased the land and the ranch manager. Witnesses for both sides agreed that the only water available to irrigate a certain 13.4-acre parcel in the southwest quarter of Section 27 was from the West Gallatin canal. The topography of the Benepe place and the established gravity flow of the water canals precludes the use of Middle Creek water on this parcel. For purposes of reference only, this parcel is labeled the "dry parcel" in the appended diagram. Witnesses for the defendants testified that the full amount of the one-half share of water, approximately fifty miner's inches, was required to build enough head in the diversion ditch leading away from the canal to reach all the dry parcel.

The evidence further established that the West Gallatin water was used to supplement Middle Creek water in the irrigation of the plaintiff's parcel in the northwest quarter of Section 27. The farmer accomplished this by pumping water out of the West Gallatin canal where it crosses the Middle Creek ditch. The Middle Creek water passes over the Gallatin canal via a pipe. The pumped water is dumped into the Middle Creek ditch where it flows north to the Kravik parcel and a sprinkler system. The tenant farmer used West Gallatin or Middle Creek water depending on the relative quantity available.

The trial court filed findings of fact and conclusions of law February 7, 1984. These findings reflect the testimony summarized above. The court concluded that the defendants Kittles would receive the one-half share in the West Gallatin Canal. The parties were ordered to bear their own attorney fees.

Kravik has appealed, raising the following issues:

1. Did the District Court err by awarding the defendants the one-half share in the West Gallatin Canal Company?

2. Assuming the water right was properly awarded to defendants, was the plaintiff entitled to compensation?

3. Was the plaintiff entitled to attorney fees for bringing the partition action?

4. Are the findings of fact and conclusions of law ambiguous and in error?

I

The standard of review this Court employs in reviewing a nonjury civil action is clear. Findings of fact are not set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. This standard was recently enunciated specifically in regard to a partition suit. See Palmer v. Palmer (Mont.1983), 657 P.2d 92, 40 St.Rep. 21. The practical effect of this standard is that this Court will not substitute its judgment for the trier of facts. Our function is confined to determining whether there is substantial credible evidence to support the court's findings. We view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may conflict with other evidence and still support the findings. Lacey v. Herndon (Mont.1983), 668 P.2d 251, 255, 40 St.Rep. 1375, 1380.

Appellant attacks the basic fairness of the court's decision awarding the West Gallatin water to the defendants. It is argued that all Breta Kravik desired was to have her name left on the stock certificate so her tenant farmer could continue to use This argument sounds discordant in a partition proceeding. Such an action has been traditionally recognized as a means by which cotenants, unwilling and incapable of managing property jointly, sever their interests and exercise independent control over the resulting parcels.

                West Gallatin water when needed.   The proposed findings of fact her attorney submitted to the court requested that she retain an undivided one-third interest in the one-half share along with Raymond Kittle and Bruce Kittle.   Error is claimed by the trial court's failure to recognize in findings of fact testimony that the water had been cooperatively used in the past and could be so used in the future
                

The equity of this proceeding must be examined in its entirety. A half section of farmland has been partitioned such that each cotenant has received his or her correct share of the estate of inheritance. Each party has received legal rights to water such that tillable acreage may be irrigated. The fact that one party may have received less water than it started with does not make the partition inequitable. See Sullivan v. Sullivan (1971), 82 N.M. 554, 484 P.2d 1264 (fact that lands partitioned to the plaintiff had more water did not render the partition inequitable where there was sufficient and permanent water on the property partitioned to defendant to serve the grazing acreage).

The record reflects that the Kravik parcel has been awarded sufficient water for irrigation. The farmer's practice of commingling Gallatin and Middle Creek water was one of convenience more than necessity. While the plaintiff Kravik alleged a need to draw Gallatin water during a dry summer in 1980, this testimony was not supported by any other witness. Numerous farmers who lived on and worked the land for decades stated it was unusual for the canal flows to reach a level where water rights were actually limited by the ditch walker. In any case, the parcel most in need of the West Gallatin water was the "dry parcel," previously referred to, in the southwest quarter of Section 27.

This brings us to a second consideration concerning the equity of this partition. Partitions should be fashioned to cause the least degree of harm to the cotenants and to confer no unfair advantage on any one cotenant. Prior use by one cotenant cannot be given greater weight than any other consideration in fashioning the partition. Gillmor v. Gillmor (Utah 1982), 657 P.2d 736. This adage is particularly true here, where the parcel afforded plaintiff historically used West Gallatin water, but following partition, the "dry parcel" in the southwest quarter is more in need of this water--such land being incapable...

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7 cases
  • Platt v. Platt
    • United States
    • Wyoming Supreme Court
    • November 6, 2014
    ...share of the right and has enough water to permit continued use of the land as it has historically been used. Kravik v. Lewis, 213 Mont. 448, 691 P.2d 1373, 1376 (1984) ; 59A Am.Jur.2d Partition § 12 (2014). Water rights are presumed to be appurtenant to the land on which the water is used ......
  • Kellogg v. Dearborn Information Services
    • United States
    • Montana Supreme Court
    • July 28, 2005
    ...owelty, through which a court avoids ordering a partition by sale when a property cannot be equally divided. See Kravik v. Lewis (1984), 213 Mont. 448, 455, 691 P.2d 1373, 1376. Section 70-29-209(2), MCA, grants the court broad powers in making this adjustment: "In all cases the court has p......
  • Tillett v. Lippert
    • United States
    • Montana Supreme Court
    • January 8, 1996
    ...the findings are clearly erroneous. Troglia v. Bartoletti (1994), 266 Mont. 240, 244, 879 P.2d 1169, 1171; Kravik v. Lewis (1984), 213 Mont. 448, 453, 691 P.2d 1373, 1375. A finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court ......
  • Hughes v. Hughes
    • United States
    • Montana Supreme Court
    • August 6, 2013
    ...partition. We require that a partition should be fashioned to cause the least degree of harm to the co-tenants. Kravik v. Lewis, 213 Mont. 448, 454, 691 P.2d 1373, 1376 (1984). Partitions should confer no unfair advantage to any one co-tenant. Kravik, 213 Mont. at 454, 691 P.2d at 1376. We ......
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