Unruh v. Tash

• Decision Date: 29 June 1995
• Docket Number: No. 94-439,94-439
• Citation: 52 St.Rep. 425,896 P.2d 433,271 Mont. 246
• Parties: Elmer UNRUH, Plaintiff, Respondent, Cross-Appellant, v. William TASH and Tash T Diamond Livestock, Inc., Defendants and Appellants.
• Court: Montana Supreme Court

Page 433

896 P.2d 433

271 Mont. 246

Elmer UNRUH, Plaintiff, Respondent, Cross-Appellant, v. William TASH and Tash T Diamond Livestock, Inc., Defendants

and Appellants.

No. 94-439.

Supreme Court of Montana.

Submitted on Briefs Feb. 9, 1995.

Decided May 23, 1995.

Rehearing Denied June 29, 1995.

[271 Mont. 247] Jon Metropoulos, Helena, for appellants.

W. Cecil Jones, Thomas R. Scott, Dillon, for respondent.

NELSON, Justice.

This is an appeal and cross-appeal from a Fifth Judicial District Court, Beaverhead County, order granting the defendant's motion for summary judgment in a prescriptive easement action. We reverse and remand.

The following are issues on appeal and cross-appeal:

APPEAL

1. Did the District Court err in denying attorney fees to the defendant William Tash (Tash) pursuant to § 70-17-112, MCA?

CROSS-APPEAL

1. Did the District Court err in granting summary judgment in favor of Tash, finding a prescriptive easement for the use of the ditch and a prescriptive right to overflow water onto a portion of plaintiff Elmer Unruh's (Unruh's) land?

2. Did the District Court err when it failed to have a record of the summary judgment hearing?

3. Did the District Court err in adopting Tash's Findings of Fact, Conclusions of Law, and Order verbatim?

FACTUAL BACKGROUND

The plaintiff, Unruh is the owner of 12.6 acres of real property located in the SE 1/4 NE 1/4 Section 33 Township 7 South Range 9 West M.P.M., purchased in 1989. The defendant Tash owns property immediately east of plaintiff's property, with both properties adjoining each other with a border running north-south for approximately 932 feet. The object of this litigation is a lateral ditch which adjoins the Van Camp ditch, a major ditch which forms the western border of the plaintiff, Unruh's property. The Van Camp ditch carries water from the Beaverhead River to several ranches, including Tash's ranch. The only written information affecting the lateral ditch and its current placement is a 1944 agreement between predecessors of the plaintiff and defendant and a sale deed between the plaintiff's remote predecessor and the State. The Van Camp ditch was realigned in 1944 pursuant to a written agreement between Emily Tash, Edna Wheat, and Norman and Blanche Downing (Unruh's remote predecessors). The agreement provided for an easement to the grantees (Wheat and Tash) for the purpose of constructing, maintaining and repairing said ditch. Moreover, the easement provides that the parties may carry, conduct and convey the waters flowing or to flow therein to the lands of the grantees. As a result of realigning the Van Camp ditch, the lateral ditch had to be "continued" to connect to the realigned Van Camp ditch. The newly located lateral ditch consisted of portions of the old lateral ditch and a portion of the old Van Camp ditch.

In 1954, the State of Montana bought land from the Downings for the purpose of relocating Highway 278. The result of the highway construction was that the headgate of the lateral ditch had to be relocated and a new lateral ditch built. A special consideration in the Bargain and Sale Deed stated that "[h]eadgate at Sta [Station] 2284 + 60, approximately, to be removed by contractor, and to be replaced by owner (Tash Ranch Co.)." A new headgate was installed and the new lateral ditch was built using a portion of the original lateral ditch and a small portion of the old Van Camp ditch.

Testimony regarding use of the lateral ditch is in the form of several affidavits. According to the affidavit of Herb Wheat, who has lived in the area since 1913, the lateral ditch has been in use as long as he can recall, with an overflow of water at the northeastern end of the ditch. Gerald Jones' affidavit states that since 1970, he has leased land and the Van Camp ditch from Herb Wheat and he recalls the use of the lateral ditch in the 1970s. He could not testify to its use in the last 10 years but had no real reason to check the ditch during that time period. However, he had no reason to feel the ditch had been abandoned.

Bill Ballard stated in his affidavit that the water in the lateral ditch had been used by Tash in the past in a manner which caused some overflow onto both Tash's and Unruh's lands. Finally, Jim Allen also stated that the lateral ditch was in use when he managed a horse ranch which included Unruh's land In his amended complaint filed on May 21, 1991, the plaintiff asserted that: 1) the ditch in contention was abandoned by Tash's predecessors in the April 20, 1944 document; 2) that the ditch had not been used for over ten years and consequently, the right to use the ditch had been extinguished; and 3) any right of the defendant to use the ditch was by consent and the plaintiff has since revoked his consent to use of the ditch by defendant.

from 1979 to 1989 and the water in the lateral ditch was used by Tash in a manner which included overflow on both Tash's and Unruh's properties.

Tash contended that he possessed a prescriptive easement to use the ditch in question and use it in the manner in which he had used it for over twenty years (i.e. overflowing the ditch) when water was available and needed. He further has contended that his right to use the ditch was not by license or consent. He asserted that if the Downings, Unruh's predecessor in interest, had given a license for such use, the license had been extinguished in 1972 when the property was conveyed and use of the ditch from 1972 to 1977 was adverse to the new owners and therefore, if a prescriptive easement had not been acquired previously, it had been acquired between 1972 and 1977. Also, Tash states that Unruh recognized Tash's ownership rights in the ditch when he "ceased [his] attempted realignment of the ditch and sought [Tash's] permission to place a culvert in the original ditch."

In an order dated July 10, 1991, the District Court concluded that Tash had an easement to use the ditch in the manner in which it had been used in the past, allowing the water to overflow the ditch onto Unruh's property. Moreover, the District Court concluded that Tash had not abandoned any right to use the ditch. Further, the District Court, although stating that the above holding disposed of the matter, also concluded that the plaintiff had failed to meet his burden of proving that the overflow of water was the proximate cause of his damages. Finally, the District Court concluded that the damages sought by the plaintiff were too speculative since his proposed business was a new business.

Following the entry of summary judgment in favor of Tash, Tash requested an award of attorney fees. In a memorandum filed April 1, 1992, the District Court denied Tash's motion for an award of attorney fees, stating that there was no encroachment or impairment of the easement by Unruh's actions nor did Unruh limit Tash's access to his ditch easement. Finally, the District Court concluded that "adjudication of contested rights in a ditch easement does not constitute encroachment or interference and does not impair the ditch owner's rights." This appeal by Tash and a subsequent cross-appeal by Unruh followed.

STANDARD OF REVIEW

Our review of a summary judgment motion is the same as that of the District Court; it is a de novo review. Roe v. Corbin Water Users' Ass'n. (1994), 267 Mont. 503, 885 P.2d 419. Summary judgment is proper only when there are no genuine issues of material fact existing and the moving party is entitled to judgment as a matter of law. Roe, 885 P.2d at 420.

DISCUSSION

CROSS-APPEAL ISSUE ONE--SUMMARY JUDGMENT

Unruh asserts that the District Court erred in granting summary judgment to Tash, concluding that Tash had a prescriptive easement to the ditch in question and a prescriptive right to overflow the ditch. Tash contends that "Unruh does not and cannot seriously contest that the elements of open, notorious, continuous use for five years have been established." Tash argues that adversity is the only issue in the instant case.

To establish an easement by prescription, the party claiming an easement "must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. The statutory period is five years." The burden is on the party seeking to establish the prescriptive easement. "All elements must be proved in a case such as this because 'one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it'."

"To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land." "If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use."

Public Lands Access Assn, Inc. v. Boone & Crockett Club Foundation, Inc. (1993), 259 Mont. 279, 283-84, 856 P.2d 525, 527. (Citations omitted.) The elements of a prescriptive easement were defined in Rappold v. Durocher (1993), 257 Mont. 329, 849 P.2d 1017, as follows:

"Open and notorious" is defined as "a distinct and positive assertion of a right hostile to the rights of the owner and must be brought to the attention of the owner." "Continuous" means "it is necessary to have use made often enough to constitute notice of the claim to the potential servient owner." "Uninterrupted" means "use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right."

"An Exclusive use means that the claimants' right to use the right of way is independent of a like right of way in another."

Rappold, 849 P.2d at 1019. (Citations omitted.)

We now apply the factual information provided to determine whether there are any genuine issues of material fact as to Tash's claim to...