Smith v. Krutar

• Decision Date: 15 July 1969
• Docket Number: No. 11316,11316
• Citation: 457 P.2d 459,153 Mont. 325
• Parties: Elmer SMITH and Mabel Smith, husband and wife, Plaintiffs and Appellants, v. Roy C. KRUTAR and Mary E. Krutar, husband and wife, Defendants and Respondents.
• Court: Montana Supreme Court

Page 459

457 P.2d 459

153 Mont. 325

Elmer SMITH and Mabel Smith, husband and wife, Plaintiffs and Appellants, v. Roy C. KRUTAR and Mary E. Krutar, husband and wife,

Defendants and Respondents.

No. 11316.

Supreme Court of Montana.

Submitted May 17, 1969.

Decided July 15, 1969.

Malcolm MacCalman, argued, Donald J. Beighle, argued, Deer Lodge, for appellants.

Raymond J. Fox and Michael M. Nash, Raymond J. Fox, argued, Missoula, for respondents.

HASWELL, Justice.

This is an appeal by plaintiffs from a judgment for defendants in an action seeking an injunction and damages in connection with defendants' use of waters from three streams. The case was tried in the district court of Powell County without a jury.

Basically this case involves the ownership of disputed water rights in the North Fork of the Blackfoot river and two smaller tributaries, Dry Creek and Spring Creek. The parties herein are adjoining landowners.

In 1938 a decree entered by this same district court in Cause #2259 (Jacobson, et al., v. Copenhaver, et al.), adjudicated certain water rights involving the same river and creeks here in dispute. By this decree plaintiffs' predecessors in interest received certain rights to the water in the North Fork of the Blackfoot river, from which plaintiffs received their water rights. Defendants' predecessors in interest, after having been served in that prior adjudication, withdrew their answer and refused to further plead, their default was entered, and a default judgment was entered against them. As a consequence defendants' predecessors in interest received no water rights under that adjudication.

Defendants, by warranty deed executed in 1949, obtained their lands and a 1/10th interest in the Ryan-Healey ditch, which ditch carries water diverted from the North Fork of the Blackfoot river for purposes of irrigation. Plaintiffs, by warranty deed executed in 1954, obtained their lands and the right to 900 miner's inches of water from the North Fork of the Blackfoot river carried by the Ryan-Healey ditch. In dispute here is defendants' claimed right to 100 miner's inches of water also carried by the Ryan-Healey ditch.

The district court's findings of fact and conclusions of law are set out briefly as follows: (1) that the defendants are the owners of a 1/10th interest in and to the Ryan-Healey ditch; that by reason of the adverse use of waters therein, defendants are the owners of 100 miner's inches of the water of the North Fork of the Blackfoot river; (2) that the plaintiffs are the owners of the right to 900 miner's inches of the water of the North Fork of the Blackfoot river conveyed by and through the Ryan-Healey ditch; (3) that the rights of defendants and plaintiffs are of equal priority; (4) that plaintiffs are estopped from denying that defendants have any interest in the Ryan-Healey ditch; (5) that the defendants are the owners of 600 miner's inches of the water of Spring Creek and Dry Creek, which were appropriated and diverted on June 26, 1932 by defendants' predecessors; (6) that plaintiffs are the owners of 1,000 miner's inches of the water of Dry Creek, which were appropriated and diverted on June 1, 1945 by plaintiffs' predecessors; and (7) that the parties are subject to and bound by the decree and judgment in Cause #2259, supra, adjudicating the waters of the North Fork of the Blackfoot river to the same extent as if they were original parties to said decree.

The district court also denied the claim of plaintiffs for special and punitive damages as well as plaintiffs' request for an injunction enjoining defendants from interfering with their use of the waters in question.

Basically, the questions presented on this appeal are as follows: (1) whether defendants are entitled to 100 miner's inches of water conveyed by the Ryan-Healey ditch from the North Fork of the Blackfoot river; (2) whether the lower court's ruling that defendants are entitled to the 100 miner's inches of water constitutes a collateral attack on the judgment rendered in Cause #2259, supra, because it establishes a new and different right of equal priority and amends existing rights fixed by that cause; (3) whether plaintiffs have a right to 1,000 miner's inches of water from Spring Creek; (4) whether plaintiffs have a right prior to that of defendants to the use of the water from Dry Creek; (5) whether plaintiffs have a right to damages; and (6) whether plaintiffs are now foreclosed from this appeal by their failure to except to the findings of fact and conclusions of law entered by the district court.

Of prime importance to this appeal is the question of whether defendants are entitled to 100 miner's inches of water in question. We hold they are not. However, defendants have proposed several theories upon which to establish this right, and upon which the lower court based its findings of fact and conclusions of law, which require discussion.

The first, and basic theory, is that defendants had established a right to the water by adverse user of that water for the required statutory time period. Defendants sought to show such adverse user during three distinct periods of time: (1) prior to the decree entered in Cause #2259; (2) from 1938 to 1949, and (3) from 1954 to 1962.

In King v. Schultz, 141 Mont. 94, 100, 375 P.2d 108 (1962), this Court reiterated the repeatedly established rule that in this state the one claiming rights by adverse possession has the burden of proving every element of his claim. Further, in that case, this court stated:

'It is equally well settled that in order to acquire a right by adverse user or prescription it is essential that the proof must show that the use has been (a) continuous for the statutory period which in this state is (five) years (section 93-2513, R.C.M. 1947); (b) exclusive (uninterrupted, peaceable); (c) open (notorious); (d) under claim of right (color of title); (e) hostile and an invasion of another's rights which he has a chance to prevent.'

Developing case law in this state provides three basic prerequisites for establishing adverse user: (1) that the claimant used water at a time when plaintiff had need of it; (2) that he used it in such a substantial manner as to notify plaintiff that it was being deprived of water to which it was entitled; and (3) that during all of that period, plaintiff could have maintained an action against him for so using the water. King v. Schultz, supra, 101.

As to the contention that defendants established their claim of adverse user during the period prior to the entry of the court decree in Cause #2259, the doctrine of res judicata prevents them from establishing any water rights to the water conveyed by the Ryan-Healey ditch. In Smith v. Baxter, 148 Mont. 291, 294, 419 P.2d 752 (1966), this Court held that four elements must exist if the plea of res judicata is to be sustained. These criteria are:

'(1) the parties or their privies must be the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the subject-matter and to the issues between them.'

Upon a review of the decree and judgment entered in Cause #2259, we find these four criteria clearly met. The predecessors in interest of the parties now before this Court were represented, and the issues involved there identical to those now in dispute.

Looking to the contention that defendants established adverse user during the period 1938 to 1949, the evidence offered by the defendants fails to show that the use of the water by their predecessors in interest was hostile to the rights of plaintiff's predecessors in interest, or that it was under a claim of title. Rather, the evidence shows if anything, that the use of the water by defendants' predecessors in interest was permissive in nature. This hardly substantiates a claim of adverse user.

During the period 1954 to 1962, the date of the trial, the use of the water by defendants, as shown by the evidence, was anything but peaceable or uninterrupted. The testimony of plaintiffs and defendants demonstrates that during this whole time plaintiffs attempted to prevent defendants from using water being conveyed by the Ryan-Healey ditch, and had on many occasions destroyed pipes and headgates placed on the ditch by the defendants. Again, defendants have failed to carry the burden of proving adverse user, and therefore their claim must of necessity fail.

A second theory presented by defendants to secure the right to the use of the 100 miner's inches of water is that since they have an undisputed 1/10th interest in the ditch, they therefore have a right to the use of 1/10th of all the water flowing in that ditch. This they have calculated to be 100 miner's inches of water. In...