Olsen v. McQueary

• Decision Date: 30 August 1984
• Docket Number: No. 83-326,83-326
• Court: Montana Supreme Court
• Parties: Lars Lewis OLSEN, Mary Ann Olsen, Robert Joseph Olsen, and Joyce Olsen, Plaintiffs and Appellants, v. Evered L. McQUEARY, Ramona McQueary, Andrew Beck and Donald W. Beck, Defendants and Respondents.

Page 712

687 P.2d 712

212 Mont. 173

Lars Lewis OLSEN, Mary Ann Olsen, Robert Joseph Olsen, and Joyce Olsen, Plaintiffs and Appellants, v. Evered L. McQUEARY, Ramona McQueary, Andrew Beck and Donald

W. Beck, Defendants and Respondents.

No. 83-326.

Supreme Court of Montana.

Submitted on Briefs June 14, 1984.

Decided Aug. 30, 1984.

Johnson, Skakles & Kebe, Greg J. Skakles, Anaconda, for plaintiffs and appellants.

Loble & Pauly, C. Bruce Loble, Helena, for defendants and respondents.

GULBRANDSON, Justice.

The plaintiffs appeal from the judgment of the Third Judicial District Court, Powell County, which decreed the respective water rights of plaintiffs and defendants in Upper Fred Burr Creek and Lower Fred Burr Creek channel near Deer Lodge, Montana. We affirm the decision of the District Court.

The plaintiffs own property in Powell County in the Lower Fred Burr Creek drainage. Some of these lands are owned by Lars and Mary Ann Olsen, husband and wife, and some by Robert and Joyce Olsen, husband and wife.

Defendant Andrew Beck owns property uphill from the Olsens in the Upper Fred Burr Creek drainage. Defendant Donald Beck is the guardian of Andrew Beck, who has been adjudged an incompetent. Evered and Ramona McQueary, husband and wife, through a management agreement, are presently responsible for managing the Andrew Beck property. The McQuearys claim no water right in this action, and were dismissed as defendants by the District Court.

Upper Fred Burr Creek is a natural stream arising in a hilly area east of the Beck property and flowing in a well defined channel through the Beck property. However, the creek disappears into the ground near the Beck farmstead, except in times of flood. The Lower Fred Burr Creek channel runs in a northwesterly direction and water flows in the channel on an intermittent basis. The District Court found that Upper Fred Burr Creek and Lower Fred Burr Creek channel arise from separate sources of water and except in times of flood, Upper Fred Burr Creek contributes no water to the Lower Fred Burr Creek channel. The court also found that Upper Fred Burr Creek is not a tributary to either Lower Fred Burr Creek channel or the Deer Lodge River. Any water that flows through the Lower Fred Burr Creek channel is either foreign water imported via irrigation ditches from Cottonwood Creek and Baggs Creek or waste, drainage and return flow accumulations from irrigation on adjacent ranches.

Bob and Joyce Olsen have a decreed sixty inch water right out of Cottonwood Creek with an 1882 priority date. Louis Smith and Sam Beck own land in the Upper and Lower Fred Burr Creek drainages, between the respective ranches of plaintiffs and defendants. Louis Smith and Sam Beck also have decreed rights from Cottonwood Creek. Bob and Joyce Olsen, Louis Smith and Sam Beck together import more than 3,500 miner's inches of Cottonwood Creek water into the drainage area of Lower Fred Burr Creek channel. The ranches of Louis Smith and Sam Beck are uphill from the Olsens' land and any waste, drainage and return flow waters from irrigation on these ranches flow into the Lower Fred Burr Creek channel and are available for use by plaintiffs. The District Court found that plaintiffs, Robert and Joyce Olsen, had appropriated and diverted sixty miner's inches of this water with a 1954 priority date. The court found that plaintiffs Lars and Mary Ann Olsen appropriated and diverted fifty miner's inches with a priority date of 1965.

In 1872, defendants' predecessor, Grant, appropriated and diverted 250 miner's inches of Upper Fred Burr Creek waters. Grant's successor filed a declaration of water right in 1885 in the county office of the clerk and recorder in conformance with statutory law. Upper Fred Burr Creek is a high mountain stream whose principal flow occurs in the spring. Defendants' irrigated lands are located on steep hillsides with shallow topsoil laying over coarse rock and gravel. Successful growing of crops on this land requires repeated flood irrigation.

The District Court found that 1.5 miner's inches per acre were required to successfully irrigate this land. There is seldom sufficient water in Upper Fred Burr Creek to irrigate all of defendants' land. Thus, Beck and his predecessor have consistently used the entire amount of Upper Fred Burr Creek waters available for irrigation and stock water purposes, except in times of flood.

The District Court found that the defendant and his predecessors had appropriated and diverted 250 miner's inches from Upper Fred Burr Creek with a priority date of 1872, and 1,010 miner's inches from Upper Fred Burr Creek with a priority date of 1915.

Plaintiffs filed suit in 1979, alleging wrongful use of the waters of Fred Burr Creek by defendants and alleging that plaintiffs had superior rights to the water, at least to the waters in excess of 250 miners inches. Plaintiffs asked for an adjudication of rights to the waters of Fred Burr Creek and appointment of a water commission to measure and distribute the water in accordance with the court's decree. Defendants in their answer claimed superior rights to all waters of Fred Burr Creek. The case was heard by Judge Boyd, who entered a decree in April of 1983. The decree awarded defendants 1,260 miner's inches from Upper Fred Burr Creek. Plaintiffs Robert and Joyce Olsen were awarded sixty miner's inches from Lower Fred Burr Creek channel, and plaintiffs Lars and Mary Ann Olsen were awarded fifty miner's inches from Lower Fred Burr Creek channel.

The plaintiffs' first issue on appeal is whether the findings of fact and conclusions of law of the District Court are supported by substantial credible evidence. We first address a subsidiary issue raised by plaintiffs: Did the District Court err in adopting verbatim much of the proposed findings of fact and conclusions of law tendered by the respondents?

In the past this Court has discouraged the trial court's wholesale adoption of proposed findings and conclusions of the prevailing party. In re Marriage of Wolfe (Mont.1983), 659 P.2d 259, 261, 40 St.Rep. 211, 213; Tomaskie v. Tomaskie (Mont.1981), 625 P.2d 536, 538-39, 38 St.Rep. 416, 419. However as we stated in Kowis v. Kowis (Mont.1983), 658 P.2d 1084, 1088, 40 St.Rep. 149, 154: "[W]here ... findings and conclusions are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and are supported by the evidence, they will not be overturned simply because the court relied upon proposed findings and conclusions submitted by counsel." Here, the findings and conclusions of the trial court were comprehensive and pertinent to the issues presented for decision, providing a solid basis for the court's decision.

The remaining question is whether the findings and conclusions of the District Court are supported by substantial credible evidence.

The court found that the Fred Burr Creek drainage actually consisted of two separate streams, Upper Fred Burr Creek and Lower Fred Burr Creek channel. The court also determined that Upper Fred Burr Creek is not a tributary to Lower Fred Burr Creek channel. These findings provided the basis for the court's eventual decree of water rights to the parties. In particular, the plaintiffs maintain that findings of fact six and seven, quoted below, are clearly erroneous and require reversal.

"6. That from the totality of the evidence as confirmed by the Defendants' expert, Charles C. Bowman, Upper Fred Burr Creek is a natural stream arising in a hilly area easterly from the Andrew A. Beck property, flowing in a well-defined channel through the Beck property until it disappears into the ground, except in times of flood, at or near the Beck farmstead, occupied by the McQuearys as their residence.

"7. The Lower Fred Burr Creek channel is a separate source of water supply from Upper Fred Burr Creek and arises generally in the North Half of Section 27 of Township 8 North, Range 9 West where it flows as an intermittent stream in a northwesterly direction."

The standard of review long employed by this Court requires only that the findings and conclusions of the District Court be supported by substantial credible evidence. In re Marriage of Pickering (Mont.1984), 678 P.2d 1146, 1147, 41 St.Rep. 617, 618, "Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings." Jensen v. Jensen (Mont.1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930.

The challenged findings of the trial court are largely, although not entirely, based upon the testimony of the respondents' expert witness, Charles C. Bowman. Bowman is a retired professor of agricultural engineering from Montana State University who...