Wareing v. Schreckendgust

• Decision Date: 13 December 1996
• Docket Number: No. 95-553,95-553
• Citation: 280 Mont. 196,930 P.2d 37
• Parties: Lee WAREING and Donna Wareing, Plaintiffs, Counter-Defendants and Respondents, v. Clyde SCHRECKENDGUST, Defendant, Counterclaimant and Appellant.
• Court: Montana Supreme Court

Page 37

930 P.2d 37

280 Mont. 196

Lee WAREING and Donna Wareing, Plaintiffs Counter-Defendants and Respondents, v. Clyde SCHRECKENDGUST, Defendant, Counterclaimant and Appellant.

No. 95-553.

Supreme Court of Montana.

Submitted on Briefs Aug. 1, 1996.

Decided Dec. 13, 1996.

Dirk A. Williams, Church, Harris, Johnson & Williams, Missoula, for Appellant.

Walter E. Congdon, Congdon Law Office, Missoula, for Respondents.

NELSON, Justice.

This is an appeal from the Twenty-First Judicial District Court, Ravalli County. Following a bench trial, the District Court awarded Plaintiffs, Lee and Donna Wareing, a prescriptive ditch easement across Schreckendgust's property, costs and attorney fees. Additionally, the District Court ordered the parties to equally share the costs of replacing the ditch culvert crossing Defendant Schreckendgust's property. Defendant Schreckendgust appeals. We affirm.

We restate the issues on appeal as follows:

1. Must the elements of a prescriptive easement be proved by a preponderance of evidence or by clear and convincing evidence?

2. Did the District Court err in concluding that Wareings established all elements of their prescriptive ditch easement claim?

3. Under the doctrine of estoppel, are Wareings precluded from asserting a prescriptive easement right against Schreckendgust after they acquired an express ditch easement from a neighboring landowner over property previously owned by Schreckendgust?

4. Did the District Court err when it failed to expressly limit the scope of Wareings' prescriptive ditch easement both as to location and method of maintenance?

5. Is Schreckendgust entitled to attorney fees under § 70-17-112, MCA?

6. Should this case have been remanded for a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Lee and Donna Wareing, (Wareings) own real property situated in a portion of the SE1/4 of Section 11, Township 10 North, Range 20 West, P.M.M., Ravalli County, Montana, lying east of the right of way of Montana Rail Link. They acquired their property in 1960. Defendant Clyde Schreckendgust (Schreckendgust) owns real property situated in the W1/2 of Section 11, Township 10 North, Range 20 West, P.M.M., Ravalli County, Montana. Schreckendgust acquired his property from his father in 1962. Wareings' property lies east of Schreckendgust's property. See Appendix A for a map of the relevant portions of the parties' properties. This map is an overlay on the relevant township map derived from the Water Resources Survey, Ravalli County, Montana, State Engineer's Office (Helena, Montana, June 1958) (Map 31).

Wareings' property is irrigated by water flowing from One Horse Creek through the "Samuel Miller Ditch" (ditch) that crosses various properties, including property owned by Schreckendgust. Specifically, the ditch crosses two lots owned by Schreckendgust, described as Florence Orchard Homes Lots 19 and 20. Between these lots and Wareings' property is Florence Orchard Homes Lot 38, previously owned by Schreckendgust, but acquired by Steve Schertenleib in 1988. Also between the parties' properties lies a Ravalli County road, U.S. Highway 93 and the Montana Rail Link railroad right-of-way.

As it crosses Schreckendgust's Lots 19 and 20, the irrigation ditch flows through a concrete culvert under an old airstrip. As the ditch crosses Florence Orchard Homes Lot 38, it enters an underground pipeline installed by Schertenleib. After exiting Lot 38, the irrigation ditch, through a series of culverts, crosses under a Ravalli County road, U.S. Highway 93 and the Montana Rail Link railroad right-of-way to reach Wareings' property.

Samuel Miller is Wareings' original predecessor in interest for most of their affected property. Samuel Miller conveyed his property to Ambrose Miller in 1897, and Ambrose Miller in turn conveyed the property to William E. Gleason and Lorenzo A. Gillett in 1898. After Gillett conveyed his interest in the property to Gleason in 1913, Gleason sold various parcels of the property to others. In the 1940s and 1950s, Ed Martin owned the After 1904, but long prior to 1957, the present "Samuel Miller Ditch" was installed and/or extended to what is now Wareings' property. Gleason used the ditch to convey irrigation water from the 1930s on, and, subsequently, Ed Martin used the ditch continuously to irrigate his property during the 1940s and 1950s. Finally, Wareings have used the ditch for irrigation purposes since 1960. During this period of use, Wareings maintained the ditch by shovel and hand cleaning. Neither Wareings, nor their predecessors-in-interest, expressly sought Schreckendgust's permission to use the ditch. Instead, they notified Schreckendgust when they intended to run water through the ditch. Such notification was a neighborly custom in the area.

bulk of the property. In 1960, Wareings acquired their property from Ed Martin.

In 1947, Schreckendgust built an airstrip on his property. Where the airstrip crossed the ditch, Schreckendgust installed, at his own expense, a reinforced concrete culvert in the ditch. Lee Wareing testified that in April 1990 he called Schreckendgust in Florida to complain that the 80-foot long culvert, located below Schreckendgust's airstrip, was obstructed by boulders and other debris. Schreckendgust declined to personally have the culvert cleaned and told Wareing to do whatever he needed and so Wareing had his ranch foreman do the work. To clean the culvert, Wareings' worker found it necessary to knock holes in the top of the culvert to clear the obstructions. After this initial cleaning, vandals broke out more sections, thereby obstructing the culvert again, which led Wareings' worker to break out more top pieces to successfully clear the culvert. After returning to his property, Schreckendgust found it necessary to replace the broken culvert.

Wareings initiated this law suit against Schreckendgust through an application for temporary restraining order and preliminary injunction dated August 13, 1991. Wareings alleged that Schreckendgust's replacement of the airstrip culvert would take some days to complete and would interrupt water flow through the ditch and Wareings would be without water for irrigation and livestock. Schreckendgust prevailed on his motion to quash the temporary restraining order and successfully defended against Wareings' application for a preliminary injunction on October 18, 1991. Schreckendgust then filed an answer and counter-claim on July 17, 1992. In his answer, Schreckendgust raised several affirmative defenses and denied all allegations set out in Wareings' application for temporary restraining order and preliminary injunction. In his counter-claim, Schreckendgust sought damages for destruction of the concrete culvert on his property, damages for trespass, a decree quieting title to Lots 18-24, 33-36, 39 and 40, Florence Orchard Homes, Ravalli County, and an order enjoining Wareings from entering Schreckendgust's real property.

On December 19, 1994, this case was heard by bench trial in the Twenty-First Judicial District Court, Ravalli County, Montana. Immediately prior to testimony being given during trial, the parties stipulated that Wareings could file their complaint wherein Wareings alleged that they, either by prescription, specific grant or reservation, held an easement for the ditch crossing Schreckendgust's property. Furthermore, the District Court considered Schreckendgust as having denied all allegations in the complaint. On May 15, 1995, the District Court entered its Findings of Fact, Conclusions of Law and Order. The District Court concluded that Wareings had established a prescriptive easement for an irrigation ditch across Schreckendgust's property and awarded them costs and attorney fees. Additionally, the District Court held that each party was responsible for fifty percent of the cost of replacing the culvert located on Schreckendgust's property. Finally, after considering Schreckendgust's objection to certain costs and attorney fees, the District Court entered its final Opinion, Order and Judgment on October 30, 1995. Therein, the District Court offset certain costs and attorney fees and directed Schreckendgust to pay Wareings a reduced net amount of costs and attorney fees. From these judgments, Schreckendgust appealed.

For reasons set forth in our discussion of Issue 1, on May 14, 1996, we remanded this case to the District Court with instructions to

reconsider its decision applying the clear and convincing burden of proof. On June 10, 1996, the District Court filed its Amended Findings of Fact and Conclusions of Law. On June 18, 1996, we granted counsel for the respective parties the opportunity to file supplemental briefs with regard to the District Court's Amended Findings of Fact and Conclusions of Law. Counsel for the parties did so. We now consider both the initial issues on appeal as well as the issues raised in the supplemental briefs.

STANDARD OF REVIEW

Our standard of review for a district court's findings of fact is provided by Rule 52(a), M.R.Civ.P., which in part provides:

Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

We have adopted the following three-part test to interpret this rule:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that "[A] finding is 'clearly erroneous' when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed."

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