                                                                                             June 4 2013


                                           DA 12-0383

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 148



GENE CHARLES ROLAND and
MELINDA FAITH ROLAND,
Trustees of the Roland Family Trust
Dated March 4, 1994,

              Plaintiffs and Appellants,

         v.

FRED ALLEN DAVIS, SR. and
BARBARA DAVIS,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DV 09-282
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Stephen R. Brown, Elena J. Zlatnik, Garlington, Lohn & Robinson, PLLP;
                        Missoula, Montana

                For Appellee:

                        Dustin M. Chouinard, Markette & Chouinard, P.C.; Hamilton, Montana


                                                    Submitted on Briefs: March 20, 2013
                                                               Decided: June 4, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Appellants Gene Charles Roland and Melinda Faith Roland, Trustees of the Roland

Family Trust Dated March 4, 1994 (collectively “Roland”) appeal from the order of the

Twenty-First Judicial District, Ravalli County, in favor of Appellees Fred Allen Davis, Sr.

and Barbara Davis (collectively “Davis”) regarding a dispute over the existence of a ditch

easement. We affirm.

¶2     We address the following issue on appeal:

¶3     Whether the District Court properly determined that Roland had no ditch easement

across property owned by Davis?

                  PROCEDURAL AND FACTUAL BACKGROUND

¶4     Roland began buying property in Ravalli County in 1991. Roland purchased a 50-

acre parcel from Roger and Beverly Russ (collectively “Russ”) in 1993. The warranty deed

for this 50-acre parcel from Russ contains no express mention of water rights, ditch

easements, or appurtenances.      Roland nevertheless believed that a water right from

Bunkhouse Creek came with the property. Roland further believed that a ditch easement

existed to transport the water from Bunkhouse Creek to his property. The parties completed

and filed a water right transfer certificate as part of the closing documents.

¶5     Roland never has irrigated any of the 50-acre parcel. He has used the 50-acre parcel

for grazing of cattle and horses. Roland participated in a U.S. Forest Service fire reduction

program sometime in the mid-2000s. The program encouraged property owners to remove

new growth and undergrowth in an effort to reduce the chances of wildfire. Roland removed

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new growth and undergrowth from the entire 50-acre parcel. Roland left trees growing in the

newly created meadows with the expectation that he later would harvest the trees as a cash

crop.

¶6      Davis purchased real property from Russ in 1994. The Davis property lies adjacent

to, and directly west of, the 50-acre parcel owned by Roland. The Smith Ditch historically

had crossed the Davis property. No ditches were observable on the Davis property at the

time of the purchase in 1994. No water rights from Bunkhouse Creek attached to the Davis

property.

¶7      An existing road provides Davis with access to the house on his property from the

public road. Davis applied a “road base” to the access road to the property. Davis did not

widen the access road or remove any culverts. Davis replaced one culvert that had collapsed

where Bunkhouse Creek crosses the access road. Davis found no other culverts that would

indicate the presence of any ditch remnants on the property.

¶8      Davis took advantage of the same fire reduction program offered by the U.S. Forest

Service in the mid-2000s. Davis observed for the first time traces of an old ditch across the

property after the tree thinning work. The tree thinning work also revealed that someone had

filled a portion of an old ditch.

¶9      A 1958 Ravalli County Water Resources Survey (Water Resources Survey) depicts

the Smith Ditch traversing from Bunkhouse Creek to a “place of use” on the 50-acre parcel

now owned by Roland. The point of diversion for the water right associated with this ditch,

known as the Bunkhouse Creek Water Right, lies on Bitterroot National Forest. Water
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historically diverted from this point traveled southeasterly across Bitterroot National Forest

land, across the Davis property, and onto the 50-acre parcel now owned by Roland.

¶10    A 1957 field note from the Water Resources Survey indicates that the water right

from Bunkhouse Creek was in use via the Smith Ditch for irrigation of a 20-acre place of use

on the 50-acre parcel owned by Roland. Russ, Roland’s predecessor-in-interest to the 50-acre

parcel, filed a statement of claim on the Bunkhouse Creek Water Right in 1982 to irrigate a

total of 30 acres. A 1994 preliminary decree from a Water Master of the Montana Water

Court issued as part of the general statewide water adjudication process for the Bitterroot

River Basin included the statement of claim. The Montana Water Court later reduced the

place of use to 20 acres in 2004 following hearings and stipulations.

¶11    Roland attempted to reopen use of Smith Ditch after the Water Court’s ruling. Roland

and Davis could not agree on whether a ditch easement existed across the Davis property.

Roland eventually filed a complaint against Davis on May 19, 2009, that sought preliminary

and permanent injunctive relief, declaratory judgment, and damages. Davis denied the

allegations and filed a counter-claim to quiet title. The District Court eventually reduced the

trial to the following issues: (1) whether Roland has a ditch easement across the Davis

property; (2) whether Davis had interfered with Roland’s ditch easement; (3) the amount of

damages that Roland may have suffered as a result of Davis’s interference; and (4) Davis’s

counter-claim to quiet title.

¶12    Karl Uhlig, a water resource specialist, provided expert testimony and reports

regarding the status of any easement for Roland. Tracey Turek did the same for Davis. The
                                              4
experts made separate site visits, researched DNRC water rights records regarding Smith

Ditch and Bunkhouse Creek, and reviewed available maps, USDA aerial photographs, and

the 1958 Water Resources Survey. Turek also researched various deeds related to the Davis

property and the 50-acre parcel owned by Roland.

¶13    Neither expert could identify any definitive point of diversion at Bunkhouse Creek.

Neither expert found physical evidence of any sort, such as head gate ruins, old boards, or an

old rock pile, that might have served as a point of diversion. The experts instead attempted

to identify the point of diversion through the use of an overlay from the Water Resources

Survey that depicted the Smith Ditch in the 1950s.

¶14    Uhlig’s site visit map depicts the route of Smith Ditch from the likely point of

diversion on Bunkhouse Creek, across U.S. Forest Service Land, across the Davis property,

and across the 50-acre parcel owned by Roland. Uhlig’s map depicts the Smith Ditch in

three separate color schemes to designate the following sections: (1) sections evident on the

ground; (2) sections not evident on the ground; and (3) trace ditch locations.

¶15    The section of Smith Ditch that traverses U.S. Forest Service land and the western

portion of the Davis property appears evident on the ground and largely intact. Even on the

U.S. Forest Service land, however, the ditch has washed out in several spots, a large boulder

blocks the entire ditch in one spot, and trees several inches in diameter grow in the ditch.

Fire reduction work in the mid-2000s revealed the ditch between the boundary of the U.S.

Forest Service land and Bunkhouse Road on the western edge of the Davis property.



                                              5
Bunkhouse Road completely severs the ditch and the parties found no remnants of any

culvert there.

¶16    The ditch appears to split into an upper and a lower lateral at some point before it

enters the Davis property. The Bunkhouse Road severs both laterals. Trees four to eight

inches in diameter grow in the remnants of the two laterals and along the banks.

¶17    Roland’s access road again severs the ditch on the 50-acre parcel owned by Roland.

Roland installed the access road for fire prevention purposes within a year or two after

purchasing the parcel in 1993. The ditch appears more evident on the 50-acre parcel to the

east of the access road.

¶18    The District Court found that Smith Ditch “could be restored with a few days’ work.”

This work would involve the installation of a new head gate at the point of diversion,

reconstruction of several sections, cleaning growth and debris from the ditch, and installation

of culverts at the points where the access roads and Bunkhouse Road cross. The District

Court further found, however, that the 1957 field note from the Water Resources Survey

represents the last evidence of use of Smith Ditch for irrigation.

¶19    A USDA aerial photograph from 2009 shows the road system that blocks the ditch.

The place of use on the 50-acre parcel appears as a 20-30 year old pine forest. A 1995

USDA aerial photograph depicts a similar scene. The place of use in the 1995 photograph

appears “somewhat tree-covered.” A 1979 USDA aerial photograph likewise depicts the

same road network. The place of use appears as “an open cleared area” in 1979.



                                              6
¶20    Davis’s predecessor-in-interest constructed the access road across the Davis property

before 1979. This same road still provides access to Davis’s house. As a result, the District

Court found that the construction of this access road before 1979 had halted use of Smith

Ditch as a conveyance of irrigation water from Bunkhouse Creek to the 50-acre parcel

owned by Roland. The District Court further found that Roland’s predecessor-in-interest had

abandoned Smith Ditch before 1979 when he constructed this access road. The District

Court concluded that Roland retains no ditch easement across Davis’s property. Roland

appeals.

                               STANDARD OF REVIEW

¶21    We review for clear error a district court’s findings of fact. Boyne USA, Inc. v.

Spanish Peaks Dev., LLC, 2013 MT 1, ¶ 28, 368 Mont. 143, 292 P.3d 432. Clear error exists

if substantial credible evidence fails to support the findings of fact, if the district court

misapprehended the evidence’s effect, or if we have a definite and firm conviction that the

district court made a mistake. Boyne USA, ¶ 28. We review for correctness a district court’s

conclusions of law. Boyne USA, ¶ 28.

                                      DISCUSSION

¶22    Whether the District Court properly determined that Roland had no ditch easement

across property owned by Davis?

¶23    Roland contends that any water rights appurtenant to the 50-acre parcel passed to him

upon his purchase from Russ in 1993. He cites the Court’s decision in Adams v. Chilcott,

182 Mont. 511, 518, 597 P.2d 1140, 1145 (1979), to support the general proposition that
                                             7
water rights accompany the land “if the property is transferred without an express reservation

of the appurtenant water rights.” We agree that any water rights associated with the 50-acre

parcel passed to Roland.

¶24    Roland further argues that he also received a ditch easement “by operation of law”

upon transfer of the property to provide a delivery system of the appurtenant water rights.

This Court long has recognized, however, that ditch easements and water rights represent

separate and distinct property rights. Mildenberger v. Galbraith, 249 Mont. 161, 166, 815

P.2d 130, 134 (1991). Indeed, “[o]ne may own a water right without a ditch right, or a ditch

right without a water right.” Connolly v. Harrel, 102 Mont. 295, 300, 57 P.2d 781, 783

(1936).

¶25    Roland acknowledges that the warranty deed that memorialized the transfer from Russ

to him in 1993 contains no mention of any express easement. Roland argues on appeal,

however, that he received an “implied easement” from existing use. Roland points out that

the same person formerly owned both the Davis property and the 50-acre parcel now owned

by Roland. The former owner irrigated the place of use on the 50-acre parcel with water

transported through the Smith Ditch across the Davis property.

¶26    Roland needed to prove the following three elements at trial in order to establish an

easement by implication: (1) separation of title; (2) a use that is apparent and continuous at

the time the property is divided; and (3) reasonable necessity of the easement for the

beneficial enjoyment of the land granted or retained. Albert G. Hoyem Trust v. Galt, 1998

MT 300, ¶¶ 22-23, 292 Mont. 56, 968 P.2d 1135. Roland satisfies the first factor as the
                                              8
Davis property and the 50-acre parcel owned by Roland remained under common ownership

until 1993.

¶27    We address in more detail the second factor. With respect to the apparent nature of

the ditch, Roland argues that Davis should have discovered the ditch easement through

“reasonable inspection.” Discovery upon reasonable inspection represents the “minimum

standard that must be met” to establish apparent use. Hoyem Trust, ¶ 23. This reasonable

inspection, according to Roland, takes two forms. First, the 2008 deed from Russ to Davis

conditioned the title “SUBJECT TO all . . . easements . . . apparent on the premises.”

Roland argues that the mere presence of the “subject to” language in the deed “provides

constructive notice of the possible existence of an easement or other encumbrance.”

¶28    We generally have required the constructive notice provided by these “subject to”

provisions in deeds to be accompanied by evidence on the ground, or on a plat, of a potential

easement or encumbrance. For example, in Burleson v. Kinsey-Cartwright, 2000 MT 278, ¶¶

20-21, 302 Mont. 141, 13 P.3d 384, cited by Roland, the party opposed to the easement had

constructive notice of an easement provided by the “subject to” provision in the deed and

actual notice of the existence of an easement when she had inspected the property before

purchase. The undisputed evidence in the record indicated that “all roads, including summer

access roads, were developed and in place before any tract of land within the subdivision was

sold.” Burleson, ¶ 21. Consequently, the objector’s on-site inspection of the property before

she purchased the property had converted the constructive notice provided by the deed into

actual notice of the easements. Burleson, ¶ 21.
                                             9
¶29    The second form of reasonable inspection urged by Roland involves the reality of the

property at the time of the purchase in 2008, irrespective of the language in the deed. Roland

contends that Davis admitted that portions of the ditch and remnants of the ditch remained

visible at the time of the trial. He further cites the reports and expert testimony of Uhlig and

Turek that included discussion of existing portions of the ditch. By comparison with

Burleson, however, Davis testified that he saw no evidence of any ditches on the property

when he inspected it before purchase in the winter of 1994. He admitted to having seen

some remnants of ditches after the snow had melted in the spring. Trees grew in the ditch

remnants and no water ever flowed. More ditch remnants became visible on Davis’s

property only after Davis had completed the tree thinning program.

¶30    More importantly, with respect to the continuous use of the alleged easement, the

District Court found that the 50-acre parcel owned by Roland had not been irrigated “at least

since 1979.” The court cited first the series of USDA aerial photographs that showed forest

gradually covering the place of use on the 50-acre parcel. The court also relied upon the fact

that the roadway system across the Davis property and the 50-acre parcel prevented use of

Smith Ditch to transport irrigation water from Bunkhouse Creek to the place of use on the

50-acre parcel. The District Court found that the roadway system “was constructed prior to

1979, was in use prior to purchase by the parties of their respective properties, and remains

in use today.” The court finally determined that the roadway system had “obliterated

portions of the Smith Ditch.”



                                              10
¶31    Davis argues further that the Smith Ditch was in use “[a]t no time during the Russes’

ownership of the property.” Russ did not acquire the Davis property or the 50-acre parcel

until 1981. The District Court specifically found that the place of use on the 50-acre parcel

had not been irrigated since at least 1979. The roadway system that obstructed use of Smith

Ditch had been constructed before 1979. Substantial evidence in the record supports these

findings of the District Court. Boyne USA, ¶ 28.

¶32    Roland argues that mere nonuse proves insufficient to establish intent to abandon an

easement. We agree. The Court in Shammel v. Vogl, 144 Mont. 354, 362, 396 P.2d 103, 107

(1964), affirmed a determination by the district court that an easement holder had not

abandoned the easement. The Court acknowledged that abandonment involves a voluntary

act that requires “a concurrence of act and intent.” Shammel, 144 Mont. at 359, 396 P.2d at

106. The testimony presented in the record related “exclusively to establishing periods of

nonuser” with no evidence of intent. Shammel, 144 Mont. at 362, 396 P.2d at 107.

¶33    Roland’s claim of an implied easement means that he must do more than simply

demonstrate that his predecessor-in-interest did not intend to abandon Smith Ditch. Roland

must establish apparent and continuous use of Smith Ditch at the time that he purchased the

50-acre parcel from Russ in 1993. Hoyem Trust, ¶ 23. The District Court found that no

water had flowed through Smith Ditch “at least since 1979.” Unlike the mere nonuse in

Shammel, Roland’s predecessor-in-interest actually had created the impediments to the use

of Smith Ditch through the installation of the roadway system. No functioning ditch existed

when the Russ took title to the property in 1981.
                                             11
¶34    Roland failed to present evidence that Russ, or another predecessor-in-interest, took

any steps to undo these impediments to the use of the Smith Ditch before Russ split the 50-

acre parcel and the Davis property. Russ did not install new culverts to allow water to pass

through the ditch at the numerous points where it crossed the roadway system. Russ did not

remove trees that blocked the ditch. And Russ did not clear any trees from the place of use

of the irrigation water on the 50-acre parcel.

¶35    Roland cites only to the fact that Russ filed a statement of claim in 1982 for water

rights from Bunkhouse Creek with a place of use on the 50-acre parcel now owned by

Roland. Ditch easements and water rights represent separate and distinct property rights.

Mildenberger, 249 Mont. at 166, 815 P.2d at 134. Nothing contradictory arises from the fact

that Roland may own a water right from Bunkhouse Creek without a ditch right to transport

the water to its place of use on his 50-acre parcel. Connolly, 102 Mont. at 300, 57 P.2d at

783.

¶36    Substantial evidence supports the District Court’s determination that Roland failed to

establish continuous use of the Smith Ditch easement at the time that Roland purchased the

50-acre parcel from Russ in 1993. The deed that transferred the 50-acre parcel contains no

mention of the Smith Ditch easement. Roland failed, in turn, to establish that he had received

an implied easement for the use of Smith Ditch when he purchased the property. Hoyem

Trust, ¶¶ 22-23. Roland’s failure to establish that he had received an implied easement

relieves us of the need to evaluate whether Roland’s predecessor-in-interest intended to

abandon the Smith Ditch easement.
                                             12
¶37   Affirmed.

                           /S/ BRIAN MORRIS


We concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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