Musselshell Ranch Co. v. Seidel–joukova

• Decision Date: 31 August 2011
• Docket Number: No. DA 10–0349.,DA 10–0349.
• Citation: 2011 MT 217,261 P.3d 570,362 Mont. 1
• Parties: MUSSELSHELL RANCH COMPANY, a Montana corporation; Mary T. Cooley, Daniel Cooley, Brian Cooley, Darren Cooley, Callie Rech, d/b/a Cooley Ranch, Plaintiffs and Appellants,v.Nataliya SEIDEL–JOUKOVA, a/k/a Nataliya Seidel Joukova, and John Does 1–5, Defendants and Appellees.
• Court: Montana Supreme Court

362 Mont. 1

261 P.3d 570

2011 MT 217

MUSSELSHELL RANCH COMPANY, a Montana corporation; Mary T. Cooley, Daniel Cooley, Brian Cooley, Darren Cooley, Callie Rech, d/b/a Cooley Ranch, Plaintiffs and Appellants,

v.Nataliya SEIDEL–JOUKOVA, a/k/a Nataliya Seidel Joukova, and John Does 1–5, Defendants and Appellees.

No. DA 10–0349.

Supreme Court of Montana.

Submitted on Briefs May 18, 2011.Decided Aug. 31, 2011.

For Appellants: John R. Christensen, Ben T. Sather; Christensen Fulton & Filz, PLLC; Billings, Montana.For Appellee: Nataliya Seidel–Joukova, (self-represented litigant); Musselshell, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[362 Mont. 2] ¶ 1 Plaintiffs Musselshell Ranch Company and Cooley Ranch appeal the order of the Fourteenth Judicial District Court, Musselshell County, allowing a culvert and rock bridge placed in their irrigation ditch (the “ Cooley–Goffena” ditch) by Defendants (“Joukova”) to remain in the ditch. The District Court concluded the structure did not unreasonably interfere with plaintiffs' easement rights in the ditch. We reverse. We consider the following issue on appeal:

¶ 2 Whether the District Court erred in allowing Joukova's culvert and rock bridge to remain in the Cooley–Goffena irrigation ditch.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The Cooley–Goffena irrigation ditch has been diverting water from the Musselshell River for over a century. The original owners, George Handel and John Cooley, claimed water rights through use of the ditch in 1891 and 1892. At some point prior to 1949, Handel's interest was acquired by the Goffena family, the owners of the Musselshell Ranch Company, resulting in the split ownership of the ditch between the Cooleys and the Goffenas which continues to the present day. The ditch diverts the Musselshell to the north of the river, then continues in a generally easterly direction to its various places of use on plaintiffs' lands. The Goffenas rely on the water from the ditch to irrigate over 300 hay ground acres, which serve a 30,000 acre cattle operation. They own the rights to approximately four-fifths of the water in the ditch when it is in operation from April to October. The Cooleys also use the ditch to irrigate hay fields for their cattle operation, and own the vast majority of the remainder of the water rights. For purposes of convenience, the Cooleys and Goffenas are hereinafter referred to collectively as “MRC.”

¶ 4 At various times throughout its history, the location of the ditch has been altered to accommodate the needs of large construction projects, notably the construction of the Chicago, Milwaukee, St. Paul & Pacific Railroad in about 1907 and a 2002 road-widening project on U.S. Highway 12. The latter project had a substantial impact on Edwin and Jean Bohlman's property (now Joukova's) and the Cooley–Goffena ditch running through it. In April 2002, as part of the road-widening project, the State obtained an easement from the Bohlmans to relocate the ditch to its present location on Joukova's property and arranged for the easement to be recorded in favor of MRC. The recorded easement does not encompass the entire ditch. The ditch travels across Joukova's property for about a half-mile, but the recorded easement covers under 200 yards of that length. The easement rights on the remainder of the ditch, including the portion in which the culvert and rock bridge at issue are located, are claimed through historical use and as incidents of ownership of the ditch and water rights. There is no question as to the validity or existence of either the primary ditch easement or secondary easement for ditch maintenance.

¶ 5 As a result of the relocation, some of the Bohlmans' land previously made inaccessible by the ditch became dry and useable. An access gate was installed by the State, enabling access to the Bohlmans' property from Highway 12 for the first time. In 2006, the Bohlmans subdivided their land and sold the property in question to Joukova. The access gate installed in 2002 provided the only route from Highway 12 to the parcel, with the only other legal access through the Bohlmans' retained land to the north. Shortly after she purchased the property, Joukova graveled the road over opposition from the ditch users, who claimed the access gate was not intended to provide access to Joukova's property, but rather to the ditch for maintenance purposes alone. Joukova proceeded with construction over MRC's objections after obtaining a permit from the State to construct an approach from the highway.

¶ 6 The dispute between the parties flared up again on June 2, 2009, when plaintiffs were performing ditch maintenance on Joukova's property and encountered the newly-installed culvert and bridge. Joukova had placed a culvert in the ditch bottom, and had completely filled in the ditch surrounding the culvert on either side with rock and gravel. She then added several additional feet of rock and gravel above the culvert, up to the height of the ditch bank, to create a sturdy rock bridge across the ditch. Plaintiffs' maintenance crew was forced to exit the ditch with the bulldozer to go around the bridge. When the crew had finished cleaning out the ditch, they dismantled the east end access gate to exit the property, as Joukova had not unlocked the gate to allow the maintenance crew to continue along the ditch from west to east. Communication between the parties was difficult as Joukova has no phone installed at her property. A confrontation ensued when Joukova and her husband came upon the maintenance crew dismantling the gate. The parties engaged in a spirited discussion of their respective property rights, after which Jeff Goffena departed in such haste that his truck's wheels spun gravel at Joukova and her husband, breaking Joukova's glasses.

¶ 7 The following day, Joukova penned a letter seeking redress for her glasses and demanding that the Goffenas stop questioning her property rights. She sent a copy of the letter to Bud Goffena, as well as to Mary Cooley and the Musselshell County Sheriff's Department. MRC responded through counsel and litigation began soon thereafter. Joukova sought to protect her culvert, bridge and access from the highway. MRC sought to prohibit Joukova from accessing her property from Highway 12 via the improved road along the ditch bank, and sought removal of the bridge and culvert. MRC also sought access to Joukova's locked east-end gate and reinstallation of the west-end gate removed by Joukova.

¶ 8 The District Court found credible Joukova's testimony that she informed plaintiffs of her intention to install the culvert, although plaintiffs ardently disputed this point. The parties did not dispute, however, that Joukova did not receive permission for the installation, either in writing or orally. At most, Joukova argued that she received tacit permission because MRC raised no objections after allegedly being informed. She installed the culvert to the west of the pipeline to access the sliver of her property between the ditch and the highway, which amounts to an acre or so of useable land that she attests is a desirable location to water her horses. Joukova's culvert is 48 inches wide, slightly larger than the 40–to–47.5–inch cement pipeline installed by the state as part of the road construction.

¶ 9 The District Court upheld Joukova's rights to continue using the Highway 12 access and the improved road along the ditch bank, concluding that this use was not inconsistent with MRC's secondary easement rights. The court further concluded that the culvert and bridge installed in 2009 could remain in place, as they did not “unreasonably interfere” with plaintiffs' secondary easement rights, “particularly considering that [Joukova] is unable to meaningfully utilize her property lying south of the ditch otherwise and considering that the Plaintiffs have allowed or permitted similar culverts in the past.” The court concluded, however, that Joukova was interfering with MRC's secondary easement rights in other respects, and ordered Joukova to provide the ditch users with access through the locked gate on the east end of the property and to reinstall the removed gate on the west end. The court therefore declined to award either party attorney's fees and costs pursuant to § 70–17–112(5), MCA, as neither party “prevailed” within the meaning of the statute. MRC does not challenge on appeal the District Court's denial of fees.

¶ 10 MRC states in its brief that the other issues decided by the District Court are no longer relevant because Joukova has complied with court orders regarding the two gates and no longer uses the road adjacent to the ditch bank; Joukova disputes this latter point, but in any case these issues were not appealed. MRC appeals only the District Court's ruling that Joukova's culvert does not interfere with or encroach upon its secondary easement rights.

STANDARD OF REVIEW

¶ 11 We review a district court's findings of fact to determine whether they are clearly erroneous. Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 24, 358 Mont. 474, 247 P.3d 244. We review a district court's conclusions of law, including its interpretation of statutes, to determine whether those conclusions are correct. Gibson v. Paramount Homes, LLC, 2011 MT 112, ¶ 10, 360 Mont. 421, 253 P.3d 903; Stevens, ¶ 24.

DISCUSSION

¶ 12 Whether the District Court erred in allowing Joukova's culvert and rock bridge to remain in the Cooley–Goffena irrigation ditch.

1. Legal Framework.

¶ 13 In 1981, the Montana Legislature codified the common law principle, commonly known as a “secondary easement,” that an owner of a ditch easement has the right to enter on the servient tenement to maintain the ditch. Section 70–17–112, MCA. Committee members suggested the bill would express “in very specific terms what the case law already provides” and, even in the absence of the law, “anyone with a ditch easement does have a...