GRIMSLEY v SPENCER
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NO. 82-417 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 MAY GRIMSLEY, DAVID GRIMSLEY, EVA OXARART, LILLIAN BOOS, and FAYE SEEL, Plaintiffs and Appellants, ESTATE OF WILLIAM R. SPENCER, Deceased, Defendants, Respondents and Cross-appellants. APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Phillips, The Honorable B. W. Thomas, Judge presiding. COUNSEL OF RECORD: For Appellants: Leaphart Law Firm, Helena, Montana For Respondents: Robert L. Johnson, Lewistown, llontana - - - Submitted on Briefs: Decided : Filed: :jc 1 \; - $83 Clerk - June 16, 1983 October 6 , --- Mr. J u s t i c e L . C . Court. This Gulbrandson d e l i v e r e d an is appeal from a t h e Opinion of decision of the the District C o u r t of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t , P h i l l i p s C o u n t y , t h e H o n o r a b l e B. Thomas W. presiding D i s t r i c t J u d g e and w a t e r j u d g e , in his capacity as decreeing a f i r s t r i g h t t o t h e p l a i n t i f f s t o t h e u s e o f 500 m i n e r ' s i n c h e s o f w a t e r o f Dog C r e e k i n s o u t h e r n P h i l l i p s C o u n t y a n d a n e a s e m e n t f o r a n i r r i g a t i o n system i n conjunction with that right; denying p l a i n t i f f s a p r e s c r i p t i v e r i g h t t o t h e remaining w a t e r s of the creek; and denying injunctive relief against the defendants f o r engaging i n c e r t a i n a c t i v i t i e s with r e s p e c t t o t h e c r e e k and p l a i n t i f f s ' appeal from that portion prescriptive right cross-appeal from plaintiffs. For to of 1,000 the the i r r i g a t i o n system. the decree miner grant denying inches. I s of Plaintiffs a Defendants 500 m i n e r ' s r e a s o n s s t a t e d below, them inches we to affirm the j u d g m e n t of t h e l o w e r c o u r t w i t h r e s p e c t t o b o t h a p p e a l s . Plaintiffs six-year legal and defendants dispute over have the been use of embroiled waters in from a Dog C r e e k , w h i c h i s l o c a t e d n e a r t h e Sun P r a i r i e community i n southern P h i l l i p s tract of land, County. designated S e c t i o n 2 2 , Township 24N., originally owned defendants. The p l a i n t i f f s own a by as the Northeast Range 3 1 E . William R. Quarter of The t r a c t was M.M. Spencer, 160 a c r e a relative of Spencer e n t e r e d t h e a r e a a s a s q u a t t e r p r i o r t o 1 8 9 9 , made a d e s e r t e n t r y c l a i m on t h e t r a c t i n 1 9 0 1 , a n d s u c c e s s f u l l y proved-up in 1905. Spencer remained on the l a n d u n t i l 1 9 2 4 , when t h e t r a c t was l o s t i n a f o r e c l o s u r e action. The land was subsequently purchased by Sherman Grimsley, family a r e l a t i v e of p l a i n t i f f s , since irrigable, 1924. and and h a s been i n t h e i r Substantially hay crops have all been of the harvested land is thereon c o n t i n u o u s l y s i n c e 1901. Defendants own two tracts of land adjacent to the p l a i n t i f f ' s t r a c t o n t h e n o r t h and e a s t . Dog C r e e k is a n intermittently the located to the The w a t e r s o f described flowing east of stream a r i s i n g plaintiffs' in and defendants' land. t h e creek flow westerly through o r near lands. Generally, the t h e c r e e k f l o w s from m e l t i n g snow a n d e a r l y r a i n s i n March a n d A p r i l , from r a i n . Larb H i l l s , and a g a i n i n J u n e O c c a s i o n a l l y , i t w i l l f l o w a t o t h e r times d u r i n g t h e y e a r from heavy r a i n s . Its w a t e r s a r e run-off surface waters. On A p r i l miner's 22, 1899, William claimed 500 i n c h e s o f w a t e r f r o m Dog C r e e k t h r o u g h t h e u s e o f a dam a n d d i t c h , f o r t h e p u r p o s e o f of Spencer R. the Northeast appropriation, Quarter. i r r i g a t i n g t h e 160 a c r e s He a s r e q u i r e d by law. filed His a notice n o t i c e was of filed w i t h t h e c l e r k and r e c o r d e r o f V a l l e y C o u n t y ( w h i c h a t t h a t time included April 80, the area now known as P h i l l i p s County) 22 and was r e c o r d e d i n Book 6 o f Water R i g h t s , p a g e r e c o r d s of V a l l e y County. Be proceeded diligently t o d i v e r t and a p p l y h i s claim t o t h e N o r t h e a s t Q u a r t e r . t h e evidence produced a t t r i a l , of on From it is c l e a r t h a t i r r i g a t i o n the t r a c t has continued v i r t u a l l y without i n t e r r u p t i o n s i n c e 1901. The dam a n d d i t c h c o n s t r u c t e d by S p e n c e r , improved and maintained by Sherman Grimsley and and the p l a i n t i f f s , a r e l o c a t e d o n t h o s e t r a c t s owned by d e f e n d a n t s . D e f e n d a n t s a l s o make u s e o f t h e waters o f Dog C r e e k , r e l y i n g on c l a i m s f i l e d subsequent t o S p e n c e r ' s i n 1916 and 1 9 2 0 . Although been measuring evidence creek, estimated devices have produced capacity never at the of trial Dog used Creek the that suggested on the channel was approximately 1,500 m i n e r ' s inches. county A road runs from north to south along the e a s t l i n e of t h e Northeast Quarter, e f f e c t i v e l y separating the properties of plaintiffs and defendants and cutting a c r o s s Dog C r e e k a t a b o u t t h e p o i n t w h e r e W i l l i a m S p e n c e r and t h e p l a i n t i f f s h a v e d i v e r t e d t h e w a t e r s o f F o r many y e a r s , 1954, t h e road however, just r a n through t h e creek. the creek. In t h e county c o n s t r u c t e d a high grade a c r o s s t h e creek n e a r the diversion point. three culverts, o n e t o h a n d l e t h e Dog C r e e k c h a n n e l a t t h e north end of south end to the grade, and accommodate two The c o u n t y i n s t a l l e d smaller c u l v e r t s on the plaintiffs' water the right. P l a i n t i f f s c o n n e c t e d t o t h e s o u t h e r l y c u l v e r t s by a d j u s t i n g t h e i r d i t c h from t h e c r e e k e a s t o f t h e h i g h g r a d e t o w a r d t h e west t o t h e m i d d l e c u l v e r t , and w e s t a g a i n away f r o m t h e culvert t o the Northeast Quarter. Under t h i s system, p l a i n t i f f s a r e s e r v e d by t h e m i d d l e c u l v e r t . of excess flow, Dog Creek c u l v e r t and s p r e a d s o u t , water in part, flows the D u r i n g times toward the north flowing southwest toward the Northeast Quarter. Between 1924 and 1948, Sherman Grimsley and the p l a i n t i f f s c o n s t r u c t e d h o l d i n g and s p r e a d i n g d i k e s t o manage and a l l o c a t e t h e w a t e r s o n t h e i r lands. P l a i n t i f f s have always used a l l t h e w a t e r s flowing i n t o t h i s system u n t i l t h e i r needs a r e s a t i s f i e d , a f t e r which any e x c e s s w a t e r s a r e released and allowed to f l o w on to l a n d s owned by their neighbors, who h a v e come t o d e p e n d upon the excess flow. T h i s s y s t e m , w h i c h is a p p a r e n t l y known t o a l l r e s i d e n t s o f t h e Sun P r a i r i e Community, h a s g e n e r a l l y worked w e l l s i n c e W i l l i a m S p e n c e r f i r s t d i v e r t e d Dog C r e e k o v e r e i g h t y y e a r s ago. The s e e d s o f t h e c u r r e n t d i s p u t e a p p e a r t o h a v e b e e n planted after c o n s t r u c t i o n of t h e h i g h g r a d e i n 1954. A p r o c e s s o f s i l t i n g commenced i n t h e p l a i n t i f f s ' d i t c h o n t h e east side of the middle culvert, and s t a r t e d t o grow i n t h e s i l t e d a r e a . weeds eventually I n 1971, one of the d e f e n d a n t s , Vance S p e n c e r , c u l t i v a t e d t h e a r e a t o e r a d i c a t e the weeds, and replanted efforts the had northward planted area the away in from of grass wit11 1972. effect diverting During and alfalfa. Unfortunately, the middle tract. plaintiffs' it water culvert, the Spencer's in which period He the ditch serves 1974 to the 1976, p l a i n t i f f s , on a t l e a s t two s e p a r a t e o c c a s i o n s , a t t e m p t e d t o e n t e r t h e a r e a and r e p a i r t h e d i t c h , but defendants denied I n l a t e 1 9 7 6 and e a r l y 1 9 7 7 , them e n t r y . the p l a i n t i f f s e n t e r e d t h e l a n d d e s p i t e d e f e n d a n t s ' o b j e c t i o n s and r e s t o r e d the ditch. otherwise completed, Defendants did i n t e r f e r e with however, the not resist t h e work. run-off this Before waters had entry repairs or were g o n e down the c h a n n e l c r e a t e d by Vance S p e n c e r ' s c u l t i v a t i o n a n d away f r o m the middle c u l v e r t . plaintiffs T h e r e was no a d d i t i o n a l r u n - o f f were u n a b l e to irrigate and raise and t h e their usual c r o p i n 1976. From e v i d e n c e p r o d u c e d a t t r i a l , i t a l s o a p p e a r s t h a t d u r i n g t h e y e a r s between 1972 t o 1976, p l a i n t i f f s t r i e d t o resolve their problems by installing barriers across the up-stream the end o f t h e n o r t h c u l v e r t i n an a t t e m p t t o r a i s e water level culvert. the and force the flow back to the Vance S p e n c e r removed t h e s e b a r r i e r s , same p e r i o d the culvert, middle but during i n s t a l l e d and removed s i m i l a r b a r r i e r s t o o s t e n s i b l y t o a p p o r t i o n t h e water between t h e par ties. The led to disagreements the filing of o r i g i n a l complaint, between this plaintiffs law suit in and defendants 1977. In their p l a i n t i f f s sought t o enjoin defendants f r o m d i v e r t i n g a n y w a t e r s f r o m Dog C r e e k a n d f r o m c h a n g i n g the channel punitive of the damages defendants' creek. for They the also diminished 1976 actual and crop and hay a l l e g e d l y w i l l f u l and o p p r e s s i v e b e h a v i o r w i t h respect t o the exercise of p l a i n t i f f s ' claim sought for damages importantly, was plaintiffs waived sought water use, before a but the trial. decree that More were they e n t i t l e d t o 500 m i n e r ' s i n c h e s o f t h e Dog C r e e k f l o w , b a s e d on W i l l i a m S p e n c e r ' s 1899 c l a i m , e x c e s s of t h a t claim (approximately 1,000 miner's based prescriptive on Plaintiffs also m a i n t e n a n c e of land. sought to of the statutory for filed the allegations and amended raised Department invited easement eventually more a f f irmative claims, The the (An all plaintiffs. later, an over all flow in inches) period. construction and t h e d i v e r s i o n s y s t e m l o c a t e d on d e f e n d a n t s ' Defendants denying use and of further pleadings, specific but i t was Natural intervene, answer, an answer claims filed defenses disallowed Resources but declined and generally made over four and by by the years asserted the court. ) Conservation and w a i v e d receipt was of c l a i m i n g no s u b s t a n t i a l i n t e r e s t i n t h e outcome o f t h e p r o c e e d i n g s . After nearly pre-trial five conferences, unsuccessful judgment, attempt years of offers by additional of pleading, settlement, defendants to an and obtain summary t h e case f i n a l l y came t o t r i a l i n March 1 9 8 2 . The c o u r t heard testimony from both s i d e s concerning t h e n a t u r e of claims o n t h e w a t e r s . t h e d i s p u t e and p l a i n t i f f s ' additional briefing, After t h e c o u r t e n t e r e d f i n d i n g s of f a c t and law and e n t e r e d a d e c r e e on J u l y 28, c o n c l u s i o n s of 1982. The t r i a l c o u r t d e c r e e d t h a t p l a i n t i f f s h a d a r i g h t t o 500 miner's April i n c h e s of 1899, 22, Dog C r e e k water, w i t h a p r i o r i t y d a t e o f and an maintain the diversion. not acquired a easement on defendants' land to The c o u r t f o u n d t h a t p l a i n t i f f s h a d prescriptive right to w a t e r s i n e x c e s s o f 500 m i n e r ' s i n c h e s . any amount of the Further, the court c o n c l u d e d t h a t t h e r e was i n s u f f i c i e n t e v i d e n c e t o show t h a t defendants future, would and interfere therefore with denied p l a i n t i f f s' the request right for in the injunctive relief. In its findings and memorandum accompanying the d e c r e e , t h e c o u r t e l a b o r a t e d on i t s c o n c l u s i o n s w i t h r e s p e c t t o t h e award o f water rights. The c o u r t c o n c l u d e d t h a t p l a i n t i f f s had f a i l e d t o e s t a b l i s h a l l o f t h e i r p r e s c r i p t i v e claim. evidence that plaintiffs' h o s t i l e t o t h a t of that they had Specifically, use of defendants'. used use water of any the elements of t h e c o u r t found no excess waters Plaintiffs did when that defendants defendants' not was show and their or their predecessors had predecessors' h a y c r o p s s u f f e r e d f r o m a n y l a c k o f water f o r the prescriptive period; it; and that defendants or their predecessors could have maintained a cause of action against plaintiffs for their use of the water. Moreover, the court found no evidence that plaintiffs had put any of the excess water to beneficial use on the land -- an important element of all appropriations, whether by prescription or not. Plaintiffs moved to amend the findings and conclusions and to request a new trial, principally to present new evidence concerning the irrigation needs of the Northeast Quarter. there was Following a hearing, the court concluded that no basis to amend its earlier findings and conclusions and no statutory grounds for a new trial, and denied plaintiffs' motions. On appeal, plaintiffs allege that the trial court erred by denying them a prescriptive right to 1,000 miner's inches of water from Dog Creek. Specifically, they assert that the element of hostility is not required under the allegedly unique facts of this case, and that the evidence before the trial court clearly preponderates in favor of a finding that plaintiffs made waters in Dog Creek. beneficial use of - the all Defendants cross-appeal from the award of the 500 miner's inches, arguing that there is no evidence in the record to support such an award, and requesting that plaintiffs be limited to exactly one miner's inch per acre on their tract, or 160 miner's inches. THE REQUIREMENT OF HOSTILE USE When plaintiffs filed their initial complaint, they followed the theory that their prescriptive claim to the 1000 miner's inches could be granted only upon a successful showing of all the elements of prescription. However, during the course of trial and on this appeal, plaintiffs altered their theory, insisting that proof of all elements -- especially a showing of hostile or adverse user -- is not necessary. To support this proposition, plaintiffs rely exclusively on our decision in Cook v. Hudson (1940), 110 Mont. 263, 103 P.2d 137, wherein, according to plaintiffs, we held that the mere uninterrupted use of water for the statutory period is sufficient to vest clear title in the user, without a showing of hostility. former decision to see if such We now turn to our a holding is readily discernable. In that case, the plaintiff, Cook, filed an action to determine whether he or the defendant Hudson owned prior rights to the waters of Grove Creek in Stillwater County. Hudson answered on several grounds, but most importantly, argued that Cook's title was insufficient by virtue of a break in the claim of predecessors in interest. title between two of Cook's In addition, Hudson claimed a prescriptive right to the waters, predicated upon a showing that he and his predecessors had a record of continuous, notorious, and exclusive use over the adverse to Cook and his predecessors. statutory period Cook, supra, 110 Mont. at 268, 282, 103 P.2d at 139, 144. The trial court, sitting with a jury, indulged a series of presumptions concerning ownership and possession, and concluded that there was no fatal break in the claim of plaintiff's title, and that defendant had not gained a right by prescription. 110 Mont. at 272-83, 103 P.2d at 141-46. With respect to the Cook title, however, plaintiffs in the immediate case point to the following language in opinion to support their argument concerning hostile use: the "On the question of prescriptive right, as applied in favor of the plaintiff's [Cook's] title, it is our opinion that Magee's [Cook's predecessor] undisturbed possession for a period of time in excess of the time necessary to acquire title by prescription, standing alone, was sufficient to vest clear title in him." 110 Mont. at 281, 103 P.2d at 145. (emphasis added) cited sections 6817 and 6818, R.C.M. 1935 We then [now sections 70-19-406 and 70-19-405, MCA], presumably to bolster this conclusion. The former statute provides that occupancy of property for any period confers a title sufficient against all except the state and those who have title prescription, accession, transfer, will, or succession. by The latter refers to obtaining title by prescription to property occupied for the statutory period. With reference to the former statute on simple occupancy, we then had this to say concerning Cook's title to the water rights arising from Grove Creek: "The only vital question that seriously affects plaintiff's title to the prior right initiated by Grant [one of Cook's predecessors] is the break in the record title heretofore mentioned The right gained by Magee by his occupancy of the right to use of the water in accordance with section 6817. [70-19-406, MCA] cannot be successfully challenged after so long a time, and we can disregard any question as to whether Magee acquired [his predecessor's] right grounded on the Grant appropriation and still, within all recognized rules of law and equity, hold that Magee, upon his squatter's taking possession of the claim, using the waters at all times without let or hindrance as shown by the record, and bringing the land on which the water was used to patent, established a first right to the waters of Grove Creek against all others. . . . . . . ... "The clear preponderance of the evidence is to the effect that no one questioned the exercise of the first right to the waters of the creek by any owner or occupant of the land described in the complaint from and after Grant made the appropriation in 1892, until the defendant invaded the right of the plaintiffs in 1937 which resulted in this lawsuit. " 110 Mont. at 281-2, 103 P.2d at 145-46. From the above language, plaintiffs in the immediate case conclude that they have acquired title to 1,000 miner's inches of Dog Creek by virtue of uninterrupted use of these waters between 1901 use -- -- the time the waters were first put to and the mid-1970's -- the period when plaintiffs and defendants began feuding over the waters. The requirement of hostile or adverse use is mitigated by virtue of the long period of uninterrupted use. the only authority cited argument. We re-emphasize that Cook is by plaintiffs to support their And, at least one commentator has interpreted Cook to establish a new rule permitting a party to gain a prescriptive right. See Note, Water Riqhts: Prescriptive Right to the Use of Water in Montana, 3 Mont.L.Rev. 135, 139 (1942). After carefully considering plaintiffs' argument, the trial court concluded that it did not read Cook to relieve plaintiffs from the burden of establishing hostile use. concur with the trial court's judgment. plaintiffs have misconceived the Cook We We believe that decision both in itself and within the entire context of Montana water law. At the outset, we note that Cook, unlike plaintiffs in the immediate case, never asserted a prior right to the waters by prescriptive use. Rather, he sought to uphold his right only by a showing that he had title to the water right in conjunction with title to his land. 110 Mont. at 268, 103 P.2d at 139. See, Cook, supra, Furthermore, although it is not entirely clear from the opinion, it does not appear that Cook's water right arose on the defendant's land, as is the situation in the case before us. A careful review of the opinion reveals that Cook was found to have title by occupancy and a chain of oral conveyances. was an indication mentioned that his water in an early Although there right had not been conveyance between two of his predecessors in interest, this Court indulged a series of statutory presumptions respecting possession and ownership and held that the water right had always been part of the interest in the land eventually acquired by Cook. Elont. at 272-283, 103 P.2d at 141-46. See, 110 Therefore, we do not believe that Cook can be read to support plaintiff's theory, as neither Cook nor this Court really maintained he was attempting to preserve his right by that a claim by prescription. This observation, however, still does not explain the above-quoted language from Cook suggesting that a plaintiff like Cook could acquire a prescriptive right to the use of water with only a showing of continuous and uninterrupted use. Within the context of the whole opinion, we think the choice of language both unfortunate and confusing, and while there may be a simple explanation for it, we do not feel at liberty to comment on what our brethren really meant by this language forty-three years ago. do an injustice to the need Such second-guessing would for certainty in the law. Instead, we assume, for the purpose of argument, that the language represents prescription. a new rule of law concerning After making such an assumption, however, we reject any such rule as contrary to long-standing precedent both within our jurisdiction and in our sister states that adhere to similar principles of water law. Initially, we note that our decisions concerning acquisition of rights by prescription have always required any party alleging prescription to satisfy every element of the claim, including hostile or adverse user, and that a failure to satisfy any element is fatal to the entire claim. See, e.g., Smith v. Krutar (1969), 153 Mont. 325, 329-30, 457 P.2d 459, 461-62; King v. Schultz (1962), 141 Mont. 94, 100, 375 P.2d 108, 111; Havre Irrig. Co. v. Majerus (1957), 132 Mont. 410, 415, 318 P.2d 1076, 1078; Lamping v. Diehl (1952), 126 Mont. 193, 203, 246 P.2d 230, 235; Irion v. Hyde (1938), 107 Mont. 84, 88, 81 P.2d 353, 355; Verwolf v. Low Line Irrig. Co. (1924), 70 Mont. 570, 577, 227 P. 68, 70; Custer Con. Mines Co. v. City of Helena (1916), 52 Mont. 35, 44, 156 P. 1090, 1094; Smith v. Duff (1909), 39 Mont. 374, 378, 102 P. 981, 982; Bullerdick v. Hermsmeyer (1905), 32 Mont. 541, 544, 81 P. 334, 338; Talbott v. Butte City Water Co. (1903), 29 Mont. 17, 26, 73 P. 1111, 1113. In addition, we note that those western states adhering to the prior appropriation doctrine have also so held. v. Olson (1934), 94 Colo. 186, 29 P.2d Stillwell (1898), 12 Colo.App. 43, 54 P. See, e.g., Kountz 627; Church v. 395; Gilbert v. Smith (1976), 97 Idaho 735, 552 P.2d 1220; Determination of Relative Rights In and To the Waters of Franktown Creek (1961), 77 Nev. 348, 364 P.2d (1937), 94 Utah 20, 66 P.2d 1069; Hammond v. Johnson v. Wyoming 894; Campbell Development Co. (1940), 55 Wyo. 347, 100 P.2d 124, 102 P.2d 745. Thus, any rule relieving plaintiffs of the burden of satisfying any element of the prescriptive claim would be contrary to the weight of precedent in Montana and other western states. The mere claiming fact that the claimant a under is a plaintiff difference with prior right makes no respect to the requirements for satisfying prescription. Montana has not yet squarely addressed the law of prescription under these particular facts, but other prior appropriation states have never held that plaintiffs, claiming under prior right, need satisfy fewer or completely different elements. See, e.g., Campbell, supra, wherein the Wyoming Supreme Court held that: "the mere use of water, however long continued, does not give rise to a title by prescription. The plaintiffs [who were claiming title on the basis of prior rights] were, in addition, bound to show an invasion in a substantial manner of the rights of the [defendant], and the extent of that invasion during a continuous prescriptive period." 55 Wyo. 347, 102 P.2d at 748. The closest this Court has come to a specific consideration of a plaintiff's claim is apparent in O'Connor v. Brodie (1969), 153 Mont. 129, 454 P.2d 920. In that decision, the plaintiff, who had established a prior prescriptive right to waters associated with a ditch in the trial court, did not have to relitigate that claim on appeal, determination of our whether ruling plaintiff prescriptive right in the ditch. we said being that, "the evidence had confined to a established a Nevertheless, in dictum, relative to [proof of a prescriptive right in] the water line and diversion system would amply support specific conclusion [sic] that plaintiffs were owners of the water right by reason of title by prescription." 153 Mont. at 135, 454 P.2d at 924. Because O1Connor was required to prove a prescriptive right in the system by establishing all elements of prescription, we deduce that he would have been required to make a similar showing for the water right itself. To allow a plaintiff, or any party for that matter, the opportunity to obtain title to water rights by a showing of mere uninterrupted use would do a disservice to the sound precepts of western water law. Ideally, all water rights should be obtained in as orderly a manner as is humanely possible. Prescription does maintenance of an orderly system. not contribute the Stone, Problems Arising Out of Montana's Law of Water Rights, 27 Mont.L.Rev. (1965). to 1, 17 Indeed, we recognize that, with respect to water rights based on claims made after July 1, 1973, acquisition of title by prescription is not permitted. 85-2-301, MCA. See, section We think this observation is akin to the time-honored proposition that one claiming title to property under adverse possession must bear a heavy burden to show that his use of the property is continuous, hostile, actual, notorious, and exclusive to the owner of record, for 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. Water rights are much too precious to forego without a showing of hostile or adverse use. No use of water by the plaintiffs in this case can be said to be hostile or adverse to the defendants unless such use actually deprived the defendants of the water when they actually had need of it. Otherwise, the defendants would lose something shared with plaintiffs under conditions where sufficient water was available for everyone ' s use. In summary, we hold that the weight of authority demands that any party attempting to claim title to a water right must satisfy every element of the prescriptive claim. To the extent that Cook may have announced a different rule, then, we expressly disapprove opinion or of interpretations arising any language in that therefrom which would articulate such a different rule. On appeal, plaintiffs have apparently not argued in the alternative that, given a legal requirement to show hostility, sufficient proof of hostile or adverse use was established before the trial court. plaintiffs cannot claim a This being the case, prescriptive additional 1,008 miner's inches of Dog Creek. right to an If plaintiffs wish to claim any or all of these waters, they will have to adhere to the requirements of sections 85-2-301, MCA, et seq., relating to applications for appropriation. THE OUESTION OF BENEFICIAL USE As noted previously, the failure of plaintiffs to establish adverse user defeats their entire claim to the 1,000 miner's inches. Therefore, we need not address the issue of whether plaintiffs proved beneficial use of the same sum. Nevertheless, defendants have cross-appealed as to the award of the first 500 miner's inches from Dog Creek, claiming there is no evidence to support beneficial use of that sum by the plaintiffs. Before turning to this issue, however, we address plaintiffs' argument that defendants are somehow estopped from challenging the award of 500 miner's inches on appeal. Plaintiffs claim that defendants have always recognized the validity of a prior right to 500 miner's inches in plaintiffs, and that a challenge to this right is estopped on appeal. Specifically, plaintiffs refer to certain sections of a motion for summary judgment made by defendants during the course of pre-trial proceedings. In an a£fidavit supporting the motion, defendant Vance Spencer stated that he "always recognized Grimsley right . . ." the prior 500 inch Similarly, in a memorandum supporting the motion, defendant's attorney stated that, "[dlefendant Vance Spencer's affidavit establishes clearly that plaintiffs have a recorded 500 inch water right in Dog Creek . . ." Finally, plaintiffs point to certain statements in requests for admissions filed by defendant's attorney which impliedly recognize a "recorded 500 inch Grimsley right . . . Plaintiffs argue that these statements from the " pleadings, taken together, indicate recognition of the right and prevent defendants from asserting otherwise on appeal. That a party is bound by his pleadings needs no further elucidation. See, Fey v. A. A. Oil Corp. (1955), 129 Mont. 300, 285 P.2d 578. Upon a thorough examination of all the pleadings, as well as the statements of attorneys at trial, we believe that, contrary to plaintiffs' argument, the 500 inch claim was generally in dispute from the beginning. Defendants' initial answer to plaintiffs' complaint contained a general denial of all of plaintiffs1 claims, which assertion of the 500 inch right. included an Clearly, the claim to that much water was material to the proceedings, and the effect of an answer generally denying the claims of a plaintiff has the effect of putting every material allegation in dispute. Davis v. Sullivan Furthermore, (1936), pre-trial 1 0 3 Mont. memoranda 452, P.2d ra o submitted indicate d e f e n d a n t s were w i l l i n g n o t t o c o n t e s t p l a i n t i f f s ' 500 miner's other aspects constitute their inches of if plaintiffs the lawsuit. admissions. counsel took were And, great These during pains 1292. willing that claim t o to statements settle do not trial, refer to d e f e n d a n t s and to plaintiffs' " c l a i m " a s s i m p l y t h a t and n o t h i n g more. Moreover, t h e conduct o f p l a i n t i f f s ' a t t o r n e y a t t r i a l and the analysis of the trial court contained in the f i n d i n g s o f f a c t f u r t h e r persuade u s t h a t d e f e n d a n t is n o t t h e case. now c h a n g i n g h i s l e g a l t h e o r y o f defendants' plaintiffs' summary concern judgment -- materials We note that -- t h e were f i l e d i n e a r l y 1979. focus of Pleadings s u b m i t t e d a n d a r g u m e n t s made by d e f e n d a n t s a f t e r 1 9 7 9 make i t a b u n d a n t l y c l e a r t h a t t h e 500 i n c h claim was i n d i s p u t e . Y e t w e f i n d no i n d i c a t i o n i n t h e r e c o r d t h a t p l a i n t i f f s d i d n o t know a b o u t d e f e n d a n t s ' a r g u m e n t s . indication that plaintiffs change i n s t r a t e g y . ever N e i t h e r is t h e r e any objected to this alleged A d m i t t e d l y , t h e a s s e r t i o n by d e f e n d a n t s t h a t p l a i n t i f f s were n o t e n t i t l e d t o a l l of t h e 500 i n c h claim w a s p e r h a p s m o s t c l e a r l y s t a t e d i n a n amended a n s w e r stricken by the court as improperly memorandum a c c o m p a n y i n g i t s d e c r e e , that, filed. But in its the t r i a l court stated " e x c e p t f o r t h e a f f i r m a t i v e claim o f d e f e n d a n t s t o a p r e s c r i p t i v e r i g h t t o t h e u s e of water n o t b e n e f i c i a l l y used by p l a i n t i f f s , i t a p p e a r s t h a t i s s u e s r a i s e d by d e f e n d a n t s [ i n t h e amended a n s w e r ] a r e t r i a b l e u n d e r t h e g e n e r a l d e n i a l o f t h e o r i g i n a l answer." trial court constitutes We think further t h i s o b s e r v a t i o n by t h e evidence that defendants f u l l y intended t o d i s p u t e p l a i n t i f f s ' c l a i m t o t h e f i r s t 500 i n c h e s o f w a t e r i n Dog C r e e k . I n any e v e n t , d e f e n d a n t s were n o t i n a l e g a l p o s i t i o n to admit creek. the t h a t p l a i n t i f f s had a "right" t o waters the trial court sustained their b u r d e n would true the P l a i n t i f f s had a burden t o p r o v e t h a t t h e y had p u t o r i g i n a l Spencer claim t o a b e n e f i c i a l use, when in right. was Defendants c o n t e s t t h e p r i o r i t y of satisfied that plaintiffs the claim ever could certainly and o n l y ripen choose any c l a i m t o t h e w a t e r s , could a l s o o p t n o t t o d i s p u t e t h e g r a n t i n g of had into a not to and t h e y 500 m i n e r ' s i n c h e s i n exchange f o r a s e t t l e m e n t , b u t t h e s e o p t i o n s d i d n o t r e l i e v e p l a i n t i f f s of their b u r d e n t o show b e n e f i c i a l use t o obtain a right. Construing a l l t h e p l e a d i n g s , s t a t e m e n t s of counsel a t t r i a l , and o b s e r v a t i o n s o f t h e t r i a l c o u r t t o g e t h e r , w e f i n d no reason to believe that defendants are now taking a p o s i t i o n c o n t r a r y t o t h e i r a p p r o a c h b o t h b e f o r e and d u r i n g trial. Defendants have never d i s p u t e d t h a t p l a i n t i f f s have a p r i o r r i g h t t o some o f t h e w a t e r s o f Dog C r e e k , a n d t h a t a p p e a r s t o b e t h e s u b s t a n c e of the motion for summary the defendantst position i n judgment in 1979. Defendants' a s s e r t i o n t h a t p l a i n t i f f s a r e n o t e n t i t l e d t o t h e sum o f 5 0 0 i n c h e s o f t h e w a t e r s o f Dog C r e e k is n o t a new i s s u e . They a r e e n t i t l e d t o q u e s t i o n now, a s t h e y d i d d u r i n g t r i a l a n d i n t h e i r subsequent p o s t - t r i a l b r i e f s , t h e award o f t h a t sum t o t h e p l a i n t i f f s by t h e t r i a l c o u r t . This is an equity case. In examining the trial c o u r t ' s decree, we a r e e n t i t l e d t o review a l l q u e s t i o n s of f a c t a r i s i n g upon t h e e v i d e n c e i n t h e r e c o r d , and d e t e r m i n e t h e same, a s w e l l a s q u e s t i o n s o f l a w , a new t r i a l o r t h e t a k i n g o f below be o r d e r e d . we however, favor of f u r t h e r evidence i n the c o u r t S e c t i o n 3-2-204(5), have .the u n l e s s f o r good c a u s e always trial indulged court's I n s o doing, MCA. certain presumptions W e determinations. do in not s u b s t i t u t e our judgment f o r t h a t of t h e t r i a l c o u r t ; r a t h e r , we determine whether support the lower 1983), (Mont. 657 court's P.2d 1316. By substantial findings. 608, U n i v e r s a l Tavern Corp. 1314, is there 40 Bagnell St.Rep. 58; ( 1 9 7 8 ) , 1 7 9 Mont. "substantial evidence 36, evidence," v. Lemery Shanahan 39, we to v. 585 P.2d mean that e v i d e n c e which : " w i l l c o n v i n c e r e a s o n a b l e men a n d o n w h i c h s u c h men may n o t r e a s o n a b l y d i f f e r it establishes the as to whether p l a i n t i f f ' s case, and, i f a l l r e a s o n a b l e men m u s t c o n c l u d e t h a t t h e e v i d e n c e d o e s n o t e s t a b l i s h s u c h c a s e , t h e n i t is n o t s u b s t a n t i a l evidence. The e v i d e n c e may be i n h e r e n t l y weak and s t i l l b e deemed 'substantial' [ c i t a t i o n s omitted]." ... O l s o n v. 158, Westfork 557 P.2d court's Properties, 821, findings 823. unless We there Inc. will ( 1 9 7 6 ) , 1 7 1 Mont. not overturn the 154, trial is a clear preponderance o f e v i d e n c e a g a i n s t them, and w e w i l l r e v i e w t h e e v i d e n c e i n a l i g h t most favorable t o the prevailing party. Cameron ( 1 9 7 8 ) , 1 7 9 Mont. 2 1 9 , 2 2 8 , 587 P.2d Clearly, justify the a prior Creek was, to evidence presented right to any q u a n t i t y of say the least, very sparse. c o u r t f o u n d t h a t 500 m i n e r ' s i n c h e s i n W i l l i a m S p e n c e r ' s 1 8 9 9 claim for i r r i g a t i o n purposes. by -- 9 3 9 , 945. plaintiffs water Yet to f r o m Dog the trial -- t h e amount s p e c i f i e d was " r e a s o n a b l y r e q u i r e d " The c o u r t b a s e d the following "circumstances": Cameron v. i t s d e c i s i o n on . "a That is the quantity for which William R. Spencer filed on April 22, 1899, from which this Court infers that experience as of that date led Spencer to specify that quantity. "b. The soil in the area is permeable to moderately permeable, from which the Court infers that more than the usual one-inch per acre is reasonably required for penetration. "c. The Dog Creek flow comes fast when it comes, and 'dies quick, so that the water must be so used as to give the soil a maximum soaking when the water is available. "d. A strong flow of water is required to cover the 160 acres by means of the dike and ditch system of the Grimsleys." Findings of Fact No. 13. decree and In its memorandum accompanying the findings, the court reiterated these circumstances to justify the award. With respect to the first circumstance, we note initially that this, by itself, does not support the award. Statements made in notices of appropriation, while important to establishing a prima facie case for the sum of water claimed, are not entirely dispositive for the purpose of transforming the amount claimed into a right. Holmstrom Land Co. v. Meagher County Newland Creek Water Dist. (Mont. 1979), 605 P.2d 1060, 1065, 36 St.Rep. 1403, 1408-09, Irion v. Hyde (1938), 107 Mont. 84, 95-96, 81 P.2d 353, 358. Moreover, the trial court's inference is not supported by the evidence. As the court noted in another finding of fact, Spencer did not cultivate hay until 1901, nearly two years after the notice of appropriation was filed. There is no evidence in the record to indicate what experience he had in 1899, and whether he could justify a claim of 500 miner's inches for use on a hay crop that would not even be developed until two years later. Based on the available evidence, however, we cannot say that the remaining circumstances fail to support the trial court's decree. witnesses, although inherently The testimony of the several lay admittedly very unreasonable as general, to warrant is not reversal. so We recognize that a scientific evaluation of the soil and the requirements for cultivation is lacking, but we have often recognized that the claims and observations of those who work the land may be more important than the assessements of expert technicians. As we said in Federal Land Bank v. Morris (1941), 112 Mont. 445, 453, 116 P.2d 1007, 1010, ". . . the testimony of the men on the land, who know the soil, the kind of crops that can be raised on it, and who have spread the water and dug into that soil, and watched the effect during the entire growing season, brings in evidence of considerable weight [as opposed to the opinions of experts]." Here, there is substantial evidence, based on the observations of key witnesses, that the water applied to plaintiffs' land helped produce some of the best blue-joint hay in the Sun Prairie community, and that soil conditions and waterflow patterns warranted application of about 500 miner's inches of Dog Creek water, each time the water was available, in order to insure an annual crop. We are unwilling to disparage these observations, based as they are on years of experience in working and irrigating the land. Defendants have not pointed to anything in the court's findings of fact that is "clearly erroneous" within meaning of Rule 52(a), M.R.Civ.P., save the the facts surrounding the first circumstance for justifying the award. W e find that this error is insignificant in the context of all of the trial court's findings. Accordingly, the judgment of the trial court awarding priority of 500 miner's inches to plaintiffs and denying a prescriptive right to the remaining 1000 m i n e p inches is affirmed. Justice & We concur: P, v Chief Justice h ~ -
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