Ray v. Nansel

• Decision Date: 29 August 2002
• Docket Number: No. 01-780.,01-780.
• Citation: 2002 MT 191,53 P.3d 870,311 Mont. 135
• Parties: Jerry T. RAY, Plaintiff and Appellant, v. Gayle B. NANSEL and Paul G. Bromenshenk, as co-trustees under The Last Will and Testament of Gerald Bromenshenk, Darlene F. Bromenshenk, Zimmerman Family Limited Partnership, and John Does 1 Through 10, Defendants, Respondents and Cross-Appellants.
• Court: Montana Supreme Court

53 P.3d 870

2002 MT 191

311 Mont. 135

Jerry T. RAY, Plaintiff and Appellant, v. Gayle B. NANSEL and Paul G. Bromenshenk, as co-trustees under The Last Will and Testament of Gerald Bromenshenk, Darlene F. Bromenshenk, Zimmerman Family Limited Partnership, and John Does , Defendants, Respondents and Cross-Appellants.

No. 01-780.

Supreme Court of Montana.

Submitted on Briefs March 21, 2002.

Decided August 29, 2002.

Jon E. Doak, Doak & Associates, P.C., Billings, Montana, For Appellant.

Reneé L. Coppock and James R. Hintz, Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Billings, Montana, For Respondents/Cross-Appellants.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Jerry T. Ray appeals from a Judgment of the Thirteenth Judicial District Court, Yellowstone County. Gayle B. Nansel, Paul G. Bromenshenk, Darlene F. Bromenshenk, the Zimmerman Family Limited Partnership and John Does 1 through 10 (collectively, the "Defendants") cross-appeal from the District Court's Memorandum and Order. We affirm in part and reverse in part.

¶ 2 The following issues are dispositive of this appeal:

¶ 3 1. Did the District Court err in concluding that Ray had failed to prove a prescriptive easement over the Bromenshenk Property?

¶ 4 2. Did the District Court err in concluding that Ray had failed to prove a prescriptive easement over the Zimmerman Property?

¶ 5 3. Did the District Court err in reducing the award of the Defendant's attorneys' fees?

¶ 6 4. Did the District Court err in disallowing costs claimed by the Defendants?

BACKGROUND

¶ 7 This dispute revolves around Ray's use of a wastewater ditch (the "Wastewater Ditch") over the Defendants' properties in Yellowstone County, Montana. In November 1988, Ray acquired land (the "Ray Property") from William Deines and William Deines, Jr. (collectively, the "Deines"). The Deines still own property (the "Deines Property") that abuts the southern boundary of the Ray Property.

¶ 8 The Zimmerman Family Limited Partnership owns property (the "Zimmerman Property") that is roughly to the southeast of the Ray Property. Their property borders the eastern edge of the Deines Property. They leased this property to John Zimmerman during the time encompassed by this dispute. Gayle B. Nansel, Paul G. Bromenshenk and Darlene Bromenshenk collectively own property (the "Bromenshenk Property") to the east of and adjacent to the Zimmerman Property.

¶ 9 Before Ray acquired his property, the Deines grew crops on the Ray Property from 1975 until approximately 1989. When irrigating these crops, the Deines created wastewater, which drained along the Wastewater Ditch. The ditch originated on the Ray Property, traveled along the northern edge of the Deines Property and then crossed the Zimmerman and Bromenshenk properties. It finally drained into a larger irrigation ditch on the Bromenshenk Property.

¶ 10 Each year, after the Deines were finished irrigating, John Zimmerman would close the Wastewater Ditch during the first or second week of August. He would do this by plowing over the ditch on the Zimmerman Property. The following spring, the Deines would re-pull the ditch along substantially the same route. The Bromenshenks did not close the ditch across their property, so the Deines did not need to re-pull it each year. This arrangement was largely a matter of neighborly accommodation.

¶ 11 When Ray began farming and irrigating his land, however, the relationship between John Zimmerman and Ray quickly eroded. Apparently John Zimmerman opened the Wastewater Ditch in 1990 and possibly again in 1991. In 1992, Ray pulled the Wastewater Ditch across the Zimmerman Property. To prevent a conflict with John Zimmerman, Ray asked an on-duty Yellowstone County Sheriff Deputy to accompany him while he pulled the ditch.

¶ 12 On May 4, 1993, the Defendants' attorney sent Ray a letter revoking permission to use the Wastewater Ditch across the Zimmerman Property. Despite the letter, Gary Zemlicka, who was working at the direction of Ray, pulled the Wastewater Ditch across the Zimmerman Property in 1993. Ray ran wastewater across the ditch at least twice that year. Zemlicka also pulled the Wastewater Ditch across the Zimmerman Property in 1994 and 1995.

¶ 13 During this time, John Zimmerman confronted Zemlicka about pulling the Wastewater Ditch and informed him that Ray did not have permission to pull the ditch. Zemlicka occasionally discovered that someone had obstructed the culvert leading onto the Zimmerman Property. Each time Zemlicka discovered an obstruction, he or Ray would remove the obstruction and continue running water through the ditch.

¶ 14 Ray again pulled the Wastewater Ditch across the Zimmerman Property in 1996. That August, John Zimmerman plugged the culvert leading onto the Zimmerman Property. As a result, Ray again called a Yellowstone County Deputy Sheriff. A deputy responded, but refused to intervene. He informed Ray and John Zimmerman that their dispute was a civil matter and that they should contact their attorneys.

¶ 15 In September, Ray again attempted to flow water through the Wastewater Ditch. Because of the obstruction, however, the water flooded the Zimmerman Property. Upon seeing this, Paul Bromenshenk pulled a new ditch south into another wastewater ditch to avoid further flooding.

¶ 16 On January 20, 2000, Ray sued the Defendants to quiet title to a prescriptive easement across the Zimmerman and Bromenshenk Properties. Ray also claimed that the Defendants had obstructed the easement and sought damages, an injunction to restore the ditch and attorney's fees. The Defendants counterclaimed to quiet title to their properties and to obtain trespass damages and an injunction. Before trial, however, the parties agreed to dismiss their respective damages claims.

¶ 17 The District Court held a trial on March 26 and 27, 2001. On May 30, 2001, the court held that Ray did not have a prescriptive easement across either the Zimmerman or Bromenshenk Properties. It also granted the Defendants an injunction restraining Ray from running wastewater across their lands and held that they were entitled to costs and attorney's fees.

¶ 18 The Defendants then filed a Memoranda of Costs & Disbursements. Ray objected to the fees and costs claimed. The court held a hearing on July 13, 2001, and, on August 2, 2001, entered a judgment granting the Defendants certain costs and attorney's fees. Ray appealed the court's judgment and the Defendants cross-appealed the court's award of attorney's fees and costs.

STANDARD OF REVIEW

¶ 19 We review the findings of a district court sitting without a jury to determine if the court's findings were clearly erroneous. See Rule 52(a), M.R.Civ.P. A district court's findings are clearly erroneous if substantial credible evidence does not support them, if the trial court has misapprehended the effect of the evidence or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. See Guthrie v. Hardy, 2001 MT 122, ¶ 24, 305 Mont. 367, ¶ 24, 28 P.3d 467, ¶ 24. Additionally, we must view the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court's findings. See Guthrie, ¶ 24.

¶ 20 We review a district court's conclusions of law to determine whether those conclusions are correct. See Guthrie, ¶ 24.

ISSUE ONE

¶ 21 Did the District Court err in concluding that Ray had failed to prove a prescriptive easement over the Bromenshenk Property?

¶ 22 An easement is a nonpossessory interest in land that gives a person the right to use the land of another for a specific purpose. See Ruana v. Grigonis (1996), 275 Mont. 441, 447, 913 P.2d 1247, 1251; Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982, 985. To establish a prescriptive easement, a claimant must establish open, notorious, continuous, uninterrupted, exclusive and adverse use for five years. See § 70-19-404, MCA; Renner v. Nemitz, 2001 MT 202, ¶ 13, 306 Mont. 292, ¶ 13, 33 P.3d 255, ¶ 13. The claimant must prove these elements by clear and convincing evidence. See Renner, ¶ 13.

¶ 23 We have consistently followed the rule that open, notorious, continuous, uninterrupted and exclusive use raises a presumption that the use was also adverse. See Albert v. Hastetter, 2002 MT 123, ¶ 20, 310 Mont. 82, ¶ 20, 48 P.3d 749, ¶ 20. A claimant's failure to prove any element for the full prescriptive period is fatal to the entire claim. See Grimsley v. Estate of Spencer (1983), 206 Mont. 184, 196, 670 P.2d 85, 91-92. Although its reasoning was wrong, the District Court correctly held that Ray's use of the Wastewater Ditch was not adverse during any period of his use.

¶ 24 In reaching its conclusion, the court explained that Ray had entered upon the Bromenshenk Property no more than three times to maintain the Wastewater Ditch. Such use, the court reasoned, did not provide actual or presumed notice of a hostile claim of right. The District Court, therefore, concluded that Ray's use of the Wastewater Ditch over the Bromenshenk Property was not open, notorious and adverse during any period of his use.

¶ 25 The court improperly focused on Ray's entry onto the Bromenshenk Property. Ray is not seeking an easement to walk across the Bromenshenk Property. He is seeking an easement to flow water through the Wastewater Ditch on the Bromenshenk Property. The proper focus, therefore, is whether Ray's efforts to drain wastewater through the ditch were open, notorious or adverse.

¶ 26 Use is "open and notorious" when it gives the landowner actual knowledge of the claimed right, or is of such a character as to raise a presumption of notice. See Albert, ¶ 21; Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 17, 293 Mont. 212, ¶ 17, 974 P.2d 650, ¶ 17. Furthermore, when deciding the issue of adverse use, the court must determine whether the owner of the servient estate...