Mortensen v. Berian

• Decision Date: 21 December 2017
• Docket Number: Docket No. 44303
• Court: Idaho Supreme Court
• Parties: Jade MORTENSEN and Kylie Mortensen, Plaintiffs-Counterdefendants-Respondents, v. Galust BERIAN and Yvette N. Sturgis, Defendants-Counterclaimants-Appellants.

163 Idaho 47

408 P.3d 45

Jade MORTENSEN and Kylie Mortensen, Plaintiffs-Counterdefendants-Respondents,

v.Galust BERIAN and Yvette N. Sturgis, Defendants-Counterclaimants-Appellants.

Docket No. 44303

Supreme Court of Idaho, Pocatello, September 2017 Term.

Filed: December 21, 2017

Dunn Law Office, PLLC, Rigby, for appellants. Robin D. Dunn argued.

Rigby, Andrus & Rigby Law, PLLC, Rexburg, for respondents. Hyrum D. Erickson argued.

HORTON, Justice.

Galust Berian filled in a ditch on property owned by Yvette Sturgis. The ditch served property owned by Jade and Kylie Mortensen. The Mortensens sued Berian and Sturgis seeking damages and to have the ditch reopened. Berian counterclaimed for trespass. Following a court trial, the district court ruled in favor of the Mortensons on their claim regarding the ditch and awarded the Mortensens damages for the cost of repairing the ditch. The district court also found in favor of Berian on his counterclaim for trespass but awarded only nominal damages. Berian and Sturgis appealed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Mortensens, Sturgis and Berian own adjacent parcels that were once part of a single parcel. A previous owner divided the larger parcel and sold two of the three lots to Berian in 1989. In 2004, the Mortensens purchased the remaining lot. In 2011, Berian encountered financial difficulties and one of his lots was repossessed and subsequently purchased by Sturgis. Sturgis’ lot is situated between the Mortensens’ parcel and that owned by Berian.

Berian is an artist. Sturgis and Berian entered into an agreement whereby Berian is providing Sturgis with artwork as payment for Sturgis’ parcel. The agreement also gives Berian the right to Sturgis’ parcel until payment is complete.

This dispute relates to a ditch crossing Sturgis’ parcel to the Mortensen property. In September of 2014, Berian decided to fill in the ditch. After receiving permission from Sturgis to do so, he hired an unidentified individual to fill in the ditch over the length of the Sturgis property. The following spring, Mr. Mortensen entered the Sturgis property to perform maintenance on the ditch only to find that it had been destroyed. Although Berian had posted "No Trespassing" signs around the perimeter of his property, Mr. Mortenson entered Berian's property to confront him about the destruction of the ditch.

The Mortensens own four shares of capital stock in the Reid Canal Company which entitles them to receive water from the Reid Canal. After weighing conflicting evidence, the district court found that the Mortensens had received water from the Reid Canal Company by way of the ditch across Sturgis’ property and rejected Sturgis and Berian's claim that the ditch had been abandoned.

The district court's initial findings of fact and conclusions of law briefly addressed Berian's counterclaim, stating that it had been "dropped during trial" and therefore would not be addressed. The Mortensens moved for reconsideration, asking the district court to dismiss Berian's counterclaim with prejudice. After a hearing on the motion, the district court issued amended findings of fact and conclusions of law and a corresponding judgment. The judgment ordered that the ditch be reopened, awarded Mortensen $1,020 for the cost of repairing the ditch, and awarded Berian $50 in nominal damages for Mortensen's trespass. Berian and Sturgis timely appealed.

II. STANDARD OF REVIEW

"Following a bench trial, this Court's review is ‘limited to ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law.’ " Morgan v. New Sweden Irrigation Dist. , 160 Idaho 47, 51, 368 P.3d 990, 994 (2016) (quoting Borah v. McCandless , 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009) ). "This Court will not set aside a trial court's findings of fact unless the findings are clearly erroneous." Borah , 147 Idaho at 77, 205 P.3d at 1213 (2009).

"Clear error will not be deemed to exist if the findings are supported by substantial and competent, though conflicting, evidence." Pandrea v. Barrett , 160 Idaho 165, 171, 369 P.3d 943, 949 (2016) (quoting State Dep't of Health & Welfare v. Roe , 139 Idaho 18, 21, 72 P.3d 858, 861 (2003) ). If there is evidence in the record that a reasonable trier of fact could accept and rely upon in making the factual finding challenged on appeal, there is substantial and competent evidence. Greenfield v. Wurmlinger , 158 Idaho 591, 598, 349 P.3d 1182, 1189 (2015).

"[T]his Court exercises free review over matters of law and is not ‘bound by the legal conclusions of the trial court, but may draw its own conclusions from the facts presented.’ " Morgan , 160 Idaho at 51, 368 P.3d at 994 (quoting Borah , 147 Idaho at 77, 205 P.3d at 1213 ). However, "we will not substitute our view of the facts for the view of the district court." Marshall v. Blair , 130 Idaho 675, 679, 946 P.2d 975, 979 (1997). "In view of this role, the trial court's findings of fact will be liberally construed in favor of the judgment entered." Sun Valley Shamrock Resources, Inc. v. Travelers Leasing Corp. , 118 Idaho 116, 118–19, 794 P.2d 1389, 1391–92 (1990).

III. ANALYSIS

A. The district court's findings regarding Berian and Sturgis’ claim that the ditch had been abandoned are not clearly erroneous.

Berian and Sturgis ask this Court to review the factual findings of the district court regarding the abandonment or forfeiture of the ditch and contend that the district court erred "in its factual analysis and misapplied the law." Berian and Sturgis claim that the ditch was abandoned or forfeited under Idaho Code section 42-222(2). Berian and Sturgis claim that there was evidence that did not support the court's findings, including testimony from various witnesses that corroborates their theory that the ditch had been abandoned.

Neither abandonment nor forfeiture are favored by this Court "and clear and convincing proof is necessary to support a claim" of either. Crow v. Carlson , 107 Idaho 461, 467, 690 P.2d 916, 922 (1984). "[T]he common law doctrine of abandonment is still viable in Idaho and is distinguished from statutory forfeiture[,]" requiring each claim to be analyzed separately. Id.

We first consider Berian and Sturgis’ theory of forfeiture based upon Idaho Code section 42-222(2). This theory simply does not apply to the issue before the district court because such a claim applies only to water rights,¹ not to ditch rights. As we explained in Mullinix v. Killgore's Salmon River Fruit Co. , 158 Idaho 269, 346 P.3d 286 (2015), "a ditch right for the conveyance of water is recognized as a property right apart from and independent of the right to the use of the water conveyed therein. Each may be owned, held and conveyed independently of the other." Id. at 277, 346 P.3d at 294 (emphasis added) (quoting Simonson v. Moon , 72 Idaho 39, 47, 237 P.2d 93, 98 (1951) ). Thus, we consider only Berian and Sturgis’ claim that the ditch was abandoned.

Whether abandonment has occurred is a question of fact. See Bedke v. Pickett Ranch & Sheep Co. , 143 Idaho 36, 40, 137 P.3d 423, 427 (2006).

The word "abandon" is held in this connection to mean "to desert or forsake." It is the relinquishment of a right by the owner thereof without any regard to future possession by himself or any other person, but with the intention to forsake or desert the right. As to whether or not a water right, the water itself, the ditch, canal, or other works, have actually been abandoned or not, depends upon the facts and circumstances surrounding each particular case ....

Joyce v. Murphy Land & Irrigation Co. , 35 Idaho 549, 555, 208 P. 241, 243 (1922). Abandonment of a ditch right must be evidenced by a clear, unequivocal, and decisive act. Weaver v. Stafford , 134 Idaho 691, 698, 8 P.3d 1234, 1241 (2000), overruled on other grounds by Weitz v. Green , 148 Idaho 851, 230 P.3d 743 (2010). "Mere nonuse of [a ditch] does not effect an abandonment." Id . Abandonment "is not dependent necessarily upon length of time but upon the essential element of intent." Gilbert v. Smith , 97 Idaho 735, 738, 552 P.2d 1220, 1223 (1976) (discussing water right).

Berian and Sturgis claim that the district court's finding that the ditch was not abandoned is not supported by the evidence and testimony presented at trial. They contend that the trial court disregarded testimony from various witnesses, including Berian, that contradict the district court's finding.

At trial, Berian contended that the only ditch on the property prior to 2013 was one that he had dug by hand and that Mortensen did not construct the ditch in question until 2013. Confronted with conflicting evidence, the district court found there was evidence that a ditch existed and had serviced the Mortensen parcel before and after Berian purchased his property. The following are the more pertinent of the district court's specific factual findings:

The ditch conveying water to the Mortensen property has been in existence for many decades and it has not always been well maintained. Nevertheless it was able to convey water.

...

No evidence was presented that the ditch was abandoned by Mortensen or their predecessors in interest. Rather, the evidence showed that the prior owners [ ] conducted maintenance on the ditch.

Aerial photographs show the ditch in the same location in 1992, 2004, 2011, 2012, 2013, and 2014. No aerial photographs were presented in which the ditch does not appear.

...

The Mortensens purchased their property in 2004, and used the ditch each irrigation season from 2005 to the time it was filled in by Berian.

Having reviewed the record, we find that substantial and competent evidence support each of these findings, recognizing that the district court's statement that "[n]o evidence was presented that the ditch was abandoned by Mortensen or their predecessors in interest" could have been more accurately stated as follows: "No evidence was presented that Mortensen or...