Kravik v. Lewis, No. 84-171

Docket NºNo. 84-171
Citation691 P.2d 1373, 213 Mont. 448
Case DateDecember 04, 1984
CourtUnited States State Supreme Court of Montana

Page 1373

691 P.2d 1373
213 Mont. 448
Breta O. KRAVIK, Plaintiff and Appellant,
v.
Yvonne B. LEWIS, Mary Benepe, et al., Defendants and Respondents.
No. 84-171.
Supreme Court of Montana.
Submitted on Brief Sept. 26, 1984.
Decided Dec. 4, 1984.

Page 1374

[213 Mont. 449] McKinley Anderson, Bozeman, for plaintiff and appellant.

[213 Mont. 450] 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 [213 Mont. 451] 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

Page 1375

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."

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 [213 Mont. 452] 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.

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:

[213 Mont. 453] 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...

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10 practice notes
  • Drescher v. Malee, DA 21-0619
    • United States
    • Montana United States State Supreme Court of Montana
    • 18 Octubre 2022
    ...property among the former cotenants. YA Bar Livestock Co. v. Harkness, 269 Mont. 239, 249, 887 P.2d 1211, 1217 (1994); Kravik v. Lewis, 213 Mont. 448, 454-57, 691 P.2d 1373, 1376-77 (1984); see §§ 70-2-211 and -212, MCA. [3] The prior USFS permit was issued to Sibley. The parties assert tha......
  • Platt v. Platt, Nos. S–13–0239
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2014
    ...equitable 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 wate......
  • Platt v. Platt, Nos. S–13–0239
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2014
    ...equitable 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......
  • Kellogg v. Dearborn Information Services, No. 04-623.
    • United States
    • Montana United States State Supreme Court of Montana
    • 28 Julio 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......
  • Request a trial to view additional results
10 cases
  • Drescher v. Malee, DA 21-0619
    • United States
    • Montana United States State Supreme Court of Montana
    • 18 Octubre 2022
    ...property among the former cotenants. YA Bar Livestock Co. v. Harkness, 269 Mont. 239, 249, 887 P.2d 1211, 1217 (1994); Kravik v. Lewis, 213 Mont. 448, 454-57, 691 P.2d 1373, 1376-77 (1984); see §§ 70-2-211 and -212, MCA. [3] The prior USFS permit was issued to Sibley. The parties assert tha......
  • Platt v. Platt, Nos. S–13–0239
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2014
    ...equitable 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 wate......
  • Platt v. Platt, Nos. S–13–0239
    • United States
    • United States State Supreme Court of Wyoming
    • 6 Noviembre 2014
    ...equitable 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......
  • Kellogg v. Dearborn Information Services, No. 04-623.
    • United States
    • Montana United States State Supreme Court of Montana
    • 28 Julio 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......
  • Request a trial to view additional results

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