Morrison v. Higbee

• Decision Date: 15 September 1983
• Docket Number: No. 83-31,83-31
• Citation: 668 P.2d 1025,204 Mont. 515
• Parties: Peter A. MORRISON, et al., Plaintiffs, v. Edwin P. HIGBEE, et al., Defendants. James E. ROBERTSON, Plaintiff and Appellant, v. Lewis HUGHES and Mildred Hughes, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1025

668 P.2d 1025

204 Mont. 515

Peter A. MORRISON, et al., Plaintiffs, v. Edwin P. HIGBEE, et al., Defendants.

James E. ROBERTSON, Plaintiff and Appellant, v. Lewis HUGHES and Mildred Hughes, et al., Defendants and Respondents.

No. 83-31.

Supreme Court of Montana.

Submitted on Briefs March 31, 1983.

Decided June 30, 1983.

Rehearing Denied Sept. 15, 1983.

Moore, Rice, O'Connell & Refling, David C. Moon, Bozeman, for plaintiff and appellant.

Morrow, Sedivy & Olson, J.H. Morrow, Bozeman, for defendants and respondents.

SHEEHY, Justice.

Robertson brought an action in the District Court of the Fifth Judicial District, Madison County, to obtain an injunction against the defendants Hughes to prevent them from further utilizing a portion of Robertson's irrigation ditch to convey water. The Hughes counterclaimed for damages, both actual and punitive, alleging that Robertson negligently maintained the ditch, which caused erosion, and maliciously refused to take corrective action to prevent the erosion. The case was to be tried by jury, but at the close of the evidence, the District Court directed verdicts in favor of the Hughes regarding the injunction and Robertson regarding the counterclaim. Both parties appeal.

Since approximately 1949, Lewis Hughes and Robertson have been ranching in Madison County. In 1953, Robertson and his wife gave the Hughes oral permission to use the ditch in controversy (the Robertson ditch) to irrigate their ranch. Prior to that time, however, the Hughes' predecessors also used the ditch for irrigation purposes. The length of time during which the Hughes' predecessors used the ditch was not conclusively disclosed at trial.

On October 8, 1959, the Robertsons sent a letter to the Hughes revoking their permission to use the ditch. Shortly thereafter, Lewis Hughes asked the Robertsons if he could continue to use the ditch for irrigation purposes. An agreement was then drafted by the Robertsons' attorney, which granted to the Hughes a license to use the ditch. The agreement also provided that the license was subject to termination at any time by the Robertsons and that the Hughes pay for one-half of the maintenance costs of the ditch.

Lewis Hughes signed the agreement in the Robertsons' attorney's office and then took the agreement home for his wife to sign. Lewis Hughes testified that he did not carefully read the agreement and did not understand it. He also testified that the Robertsons' attorney told him the agreement was drafted to give him a right in the Robertson ditch forever. Mildred Hughes testified that when she signed the agreement, she was relying upon what her husband told her the agreement said. She also testified that she did not read the agreement very carefully. The agreement was in the Hughes' possession for at least two days before it was returned to the attorney's office.

Both Robertson and the Hughes continued to use the ditch for irrigation purposes from 1959 to 1980. During that time, the Hughes and Robertson or his lessees maintained the ditch by annually removing brush which impeded the flow of water through the ditch. At various times, Robertson's lessees also helped the Hughes maintain the ditch by removing the trees and building up the ditch banks. During that period, however, the Hughes were required to move a fence located on the south side of the Robertson ditch because of washing and erosion which the Hughes allege occurred in the ditch. Lewis Hughes also testified that Robertson allowed a headgate on the ditch to wash out, which ruined eight acres of his land. On cross-examination, however, Hughes admitted that the wash-out occurred before Robertson had acquired an interest in the ditch.

On March 14, 1980, Robertson's attorney sent a letter to the Hughes revoking the license. The Hughes, however, continued to use the ditch for irrigation purposes. Robertson then filed a complaint seeking to enjoin the Hughes from using the ditch. The Hughes brought a counterclaim alleging that Robertson's negligent maintenance of the ditch caused erosion which damaged their property. The Hughes also asked for punitive damages because of Robertson's alleged oppressive and malicious refusal to do anything to prevent the erosion.

At trial, the Hughes presented evidence to show that erosion had occurred in the Robertson ditch and that the erosion damaged their property. The Hughes did not present testimony, however, to prove when the erosion occurred. Louie Day (Hughes' expert witness) testified that he did not know when the erosion occurred, but that it could have happened fifty or one hundred years ago. He also testified that the erosion has continued since the ditch was first put in.

At the close of the evidence, both Robertson and the Hughes moved for directed verdicts, and the District Court granted both motions. Robertson now appeals from the portion of the verdict wherein the Hughes were adjudged to have a prescriptive easement in the Robertson ditch. The Hughes also appeal, arguing that the issue of whether Robertson negligently maintained the ditch should have been presented to the jury.

Basically, two issues are presented for our review:

I. Did the District Court err in directing a verdict for the Hughes by finding that the October 19, 1959, agreement did not invest the Hughes of any ditch rights?

II. Did the District Court err in directing a verdict for Robertson by finding that the Hughes failed to prove that Robertson's action caused the Hughes' damages, which removed that issue from the jury's consideration?

I. DIRECTED VERDICT FOR THE HUGHES

Pursuant to the direction of the District Court judge, the jury found as follows:

"On the plaintiff Robertson's claim against the defendants Hughes for an injunction against the defendants Hughes' continued use of the 'Robertson' canal or ditch, find that the defendants Hughes have a prescriptive right by use of uninterrupted, continuous use of this ditch for a period of time in excess of ten years prior to October 19, 1959, adverse to the plaintiff Robertson and his predecessors in interest, and by reason thereof the agreement of October 19, 1959 being without consideration, did not divest the defendants Hughes of any rights in the ditch and did not create a mere license in the use of said ditch and by reason thereof the plaintiff Robertson is not entitled to a judgment for an injunction prohibiting the defendants Hughes from using said ditch."

Robertson presents many arguments for his contention that the District Court erred by refusing to grant the injunction, but the argument we find most compelling is that no prescriptive easement existed. In Montana, a party claiming to have acquired an easement by prescription must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period. Madison County v. Elford (1983), Mont., 661 P.2d 1266, 40 St.Rep. 457. If the use begins as a permissive use, it cannot ripen into a prescriptive right, no matter how long it may continue, unless there is a distinct and positive assertion of a right hostile to the owner. Drew v. Burggraf (1963), 141 Mont. 405, 378 P.2d 232.

In this case, the Hughes' own actions indicate that their use of the ditch was permissive rather than hostile. For example, in 1953, Lewis Hughes asked the permission of the...