Mildenberger v. Galbraith
| Decision Date | 01 July 1991 |
| Docket Number | No. 90-397,90-397 |
| Citation | 48 St.Rep. 621,249 Mont. 161,815 P.2d 130 |
| Parties | Harold MILDENBERGER and Marilyn Mildenberger, husband and wife, Plaintiffs and Respondents, v. Joseph GALBRAITH and Denise Galbraith, husband and wife, Defendants and Appellants. |
| Court | Montana Supreme Court |
David L. Pengelly, Knight, Maclay & Masar, Missoula, for defendants and appellants.
John D. Greef, Hamilton, for plaintiffs and respondents.
Marc Racicot, Atty. Gen., Harley R. Harris, Asst. Atty. Gen., Tim D. Hall, Legal Counsel, Dept. of Natural Resources, Helena, for amicus curiae.
Appellants, Joseph and Denise Galbraith appeal from the judgment of the District Court of the Fourth Judicial District, Ravalli County, Montana, holding that Harold and Marilyn Mildenberger have a prescriptive easement in the water ditch on appellants' property and a stockwater right with a priority date of September 1, 1927, for water arising on lands currently owned by a third party. We affirm in part and reverse in part.
There are two issues presented for review:
1. Did the District Court err in finding that the Mildenbergers have an existing water right with a 1927 priority date?
2. Did the District Court err in finding that the Mildenbergers have a prescriptive easement in the water ditch on the Galbraiths' property?
The Mildenbergers and the Galbraiths are adjacent landowners in Ravalli County. The Galbraiths own real property in Sections 5, 8, and 9, of Township 5 North, Range 20 West, P.M.M., Ravalli County. The Mildenbergers own real property north of the Galbraiths' property, also in Section 5. Letters A through I, illustrated on the following map, will be points referred to throughout this opinion.
Several naturally occurring springs are located on the west half of Section 9 (point A) from where the water in question surfaces. The property is currently owned by Ron and Janet Trulock, who are not parties in this litigation. Water arising from the springs flows in a northwesterly direction in an open channel passing onto the Galbraiths' property at point B. The water continues to flow northward in the ditch system on the Galbraiths' property past points C and F to point H where the water enters the Hedge Canal and finally flows on to the Mildenbergers' property at point I.
In addition to the springs at point A on the Trulock property, there are also springs located on the Newman-Kern property at Point E. The water arising from these springs flows northward and merges with the disputed ditch at point F. The portion of the ditch that gave rise to this litigation lies between points C and F.
The ditch system in question was developed by the Galbraiths' predecessor, Marcus Daly, for irrigation purposes, sometime prior to 1927. Water flowed through the ditch year-around and was used by the Galbraiths' predecessors for irrigation during the summer months and stockwater during the winter months. Since approximately 1927, the Mildenbergers and their predecessors have used the water entering their property in the Hedge Canal for stockwater.
In the 1930's, some of the springs on Section 9 (point A) were developed by the State Fish and Game Department in order to convey the water to a fish hatchery (shown on map). Spring water diverted to the fish hatchery bypasses the ditch system and the Hedge Canal, and consequently, is never available for use on the Mildenberger property.
The testimony indicated that the first development of the springs located on Section 9 that resulted in developed spring water flowing through the ditch on the Galbraiths' property, did not occur until the mid-1960's.
The Mildenbergers owned the property in Section 5 () from March, 1962, until April, 1964. They reacquired it in October, 1973, and have owned it since that time. The property was owned by Dr. Jack Mahoney from April, 1964, to October, 1973. Dr. Mahoney also owned the current Trulock property in Section 9 (point A) during approximately the same time period. Dr. Mahoney sold the property in Section 9 in April, 1973, to the Mildenbergers, who then conveyed the property to Larry McCrossin in August, 1973. Ron and Janet Trulock are the current owners of this property.
The testimony shows that during his ownership of the property, Dr. Mahoney used a dragline to develop and clear the channel from the spring at point A to the edge of the Galbraiths' property at point B. He also enlarged an existing pond and drained water off this land through the pond into the channel. The testimony also shows that Dr. Mahoney's purposes in developing these springs were to benefit the land in Section 9 and provide stockwater for his land in Section 5; the same parcel currently owned by the Mildenbergers.
Larry McCrossin testified that he had further developed the springs in Section 9 and had filed water rights on the water from these developed springs during his ownership of the property between 1973 and 1980.
In the fall of 1988, the Galbraiths retained the services of a local attorney to examine the State water right records and determine whether there were any claimed water rights in the portion of the ditch between points C and F. There were no water rights on record and, once advised by counsel of this fact, the Galbraiths proceeded to fill in the ditch between points C and F, and divert the flow of water to point D. Galbraith testified that as part of his plan to improve the property, he wished to clean up and fill in the ditch between points C and F. On December 8, 1988, due to the Galbraiths' efforts in improving their property, the northward flow of water from point C had completely stopped. The Mildenbergers demanded that the Galbraiths reopen the ditch and when they refused to do so, this litigation ensued.
A non-jury trial was held on March 26, 1990, and judgment was entered in favor of the Mildenbergers, finding they have a prescriptive easement in the disputed irrigation ditch on the Galbraiths' property, and a stockwater right in the amount of 200 miner's inches with a priority date of September 1, 1927, to groundwater arising on land currently owned by Ron and Janet Trulock. The District Court held that the Mildenbergers were exempt from the statutory filing requirements of the Montana Water Use Act and awarded the Mildenbergers damages in the sum of $100, their reasonable attorney's fees, and court costs. The Galbraiths appeal.
The first issue is whether the District Court erred in finding that the Mildenbergers have an existing water right in the amount of 200 miner's inches with a 1927 priority date.
Without getting into the merits of this issue, it will suffice to say that the District Court "may grant injunctive or other relief which is necessary and appropriate to preserve property rights or the status quo pending the issuance of the final decree." Section 85-2-406(2), MCA. The District Court lacks the jurisdiction to issue a final decree with regard to the water right.
The jurisdiction to interpret and determine existing water rights rests exclusively with the water courts. Section 3-7-501, MCA.
The question then becomes whether the District Court's judgment was "necessary and appropriate" as required in Sec. 85-2-406(2), MCA. A review of the record indicates an absence of any evidence to support the District Court's determination that the Mildenbergers had a water right in the amount of 200 miner's inches. Such a final adjudication of a water right is the function of the water court, and not the District Court.
The judgment with respect to the Mildenbergers' water right in the amount of 200 miner's...
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