               IN THE SUPREME COURT OF THE STATE OF MONTANA




PERCY A. MLELKE and DEBORAH G.
MIELKE ,
              Plaintiff and Respondents,


DALY DITCHES IRRIGATION DISTRICT AND
BOARD OF COMMISSIONERS OF DA.LY DITCHES
IRRIGATION DISTRICT,
              Defendants and Appellants,


DALY DITCHES IRRIGATION DISTRICT AND
ROARD OF COMMISSIONERS OF DALY DITCHES
IRRIGATION DISTRICT,
              Third-Party Plaintiffs and Appellants,


THE STATE OF MONTANA and DEPARTMENT OF NATURAL
RESCURCES AND CONSERVATION OF THE STATE OF MONTANA,
                Third-Party Defendznts and Appellants.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Ravalli,
                The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECOFD:
         For Appellant:
                Larry Persson argued for Daly Ditches, Hamilton,
                Montana
                Candace West argued for Dept. Natural Resources,
                Helena, Montana
         For Respondent :
                Jeffrey H. Langton argued for Mielke, Hamilton, Montana



                                   Submitted:   December 9 ,    198N

                                     Decided:   January 1 6 , 1 9 8 7


Filed:    JAN 16 1987
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


     The    Daly   Ditches    Irrigation District, the        State of
Montana     and    the    Department    of     Natural   Resources   and
Conservation (DNRC) of the State of Montana appeal herein
from a final decision of the District Court, Fourth Judicial
District, County of Ravalli, which held that the plaintiffs
Percy and Deborah Mielke have a first priority water right
for irrigation from Gird Creek on the basis of adverse use.
     We determine under the facts of this case that the
Mielkes have failed to establish the requisite elements to
acquire the prescriptive water right which was accorded to
them by the District Court.
     The plaintiffs Mielkes are residents of Ravalli County,
Montana, and own farm lands of which 98.44 acres produce
crops by irrigation.        They obtained irrigation water through
a lateral ditch owned by them and a headgate on Gird Creek
which diverted water from the creek through their lateral.
Gird Creek is a part of the Daly Ditch Irrigation District
system.
        In July, 1983, the Daly Ditches Irrigation District
locked the headgate through which Mielkes diverted water from
Gird Creek to irrigate their lands.            This caused the Mielkes
to commence an action in District Court against the defendant
Dal-y Ditches Irrigation District.             In their complaint, the
Mielkes alleged that they were the owners by appropriation of
200 inches of water from Gird Creek and they asked for an

injunction against the inference by the District with their
water    right.     The    District    filed    its answer, generally
denying     the    allegations    of     the     complaint,    pleading
affirmatively that the water rights have been transferred by
a predecessor so as to sever the water rights from the land
and counterclaiming against. the Mielkes for fees for the 1983
irrigating season.
     The   Mielkes        responded      to    the   counterclaim      and
affirmative defenses by           general     denial, and by    alleging
affirmatively     that     they    had   an    adverse   use   right    to
irrigation water     for     98.44    acres.      The Mielkes    further
contended that Contract No. 90, which provided water to the
Mielkes at the rate of $1.25 per acre-foot was perpetual in
its terms and that the State had wrongfully raised the fees
during the period the State operated the project.
     The State of Montana and the DMRC were brought into the
action as third party defendants by the District on a claim
of indemnity.
     The Daly Ditches Irrigation District (sometimes referred
to as the Daly Ditch Project) is a water project located in
Ravalli County.     The project consists of several irrigation
ditches and systems designed to supply water to irrigable
lands near   Hamilton, Montana, on             the   east   side of    the
Bitterroot River.        Historically, the Daly Ditch Project came
into existence as a result of the acquisition of lands and
water rights around the turn of the century by the Butte
copper king, Marcus Daly.
    Mielkes' present farm lands were first described as part
of lands passing by patents issued to Winfield Sherrill and
Jacob Sherrill, dated 1889 and 1895, respectively.              In 1888,
Jacob Sherrill filed        in the county records a notice of
appropriation for 600 miner's            inches of water       from Gird
Creek, claiming an original appropriation date of 1864.
        In June, 1890, Winfield Sherrill and the Estate of Jacob
Sherrill conveyed title to the land with the appropriated
water right to James C. Flanner.             In September, 1890, Flanner
conveyed title to the land and the water right to James W.
Hamilton.     Hamilton, in turn, conveyed the same to Marcus
Daly in October, 1890.
       In December, 1901, the Estate of Marcus Daly conveyed
the various ditch and water rights acquired during Daly's
lifetime (includ-ingthe waters of Gird Creek) to Ravalli Land
and    Irrigation Company.            On    the    same date, the       estate
conveyed many parcels of land               (including what is now the
Mielkes'     property)    to     Ritterroot         Stock   Farm,       another
corporation.       The    land       deed    to    Bitterroot     Stock    Farm
specifically     excepted      and    reserved       therefrom    all     water
rights, water ditches and rights-of-way for ditches which
attached to or were part of the lands conveyed.                     In legal
effect, then, Daly's lands were conveyed to the Bitterroot
Stock Farm.      The water rights, ditches and easements for
ditches, which were formerly held by Daly a.s appurtenant to
the lands were separated and conveyed to Ravalli Land and
Irrigation Company.
       In 1920 and 1934, John Kalberer (Mielkes' predecessor in
interest) purchased land from the Ritterroot Stock Farm.                    At
the same time, he also entered into water contracts with the
Ra-valli Land and Irrigation Company for the purchase of water
to irrigate his purchased lands.                  The water contracts were
designated as Contract or Account No. 90.
       In 1946, Mielkes purchased the lands from Kalberer, and
took    from him an assignment of Contract No.                    90 for the
irrigation water.        Mielkes currently irrigate 98.44 acres.
Under    Contract No.     90 with          Ravalli Land     and    Irrigation
Company, Mielkes purchased (after Plielkes sold off 10 acres)
water to irrigate 50 acres.
     While Kalberer was still the owner of the lands, in
1943, Ravalli Land and Irrigation Company had conveyed all of
its right, title and interest in its water rights, d.itches,
easements, headgates and other structures to the State of
Montana.     The State, under the Water Conservation Board (now
DNRC) took over all the water company's water contracts as
part of the Daly Ditch Project.     The State had come into the
picture as a part of a depression-era effort to establish
public     work   programs    through   the     encouragement     of
construction of public works.       On April 23, 1943, Ravalli
Land and Irrigation Company executed a deed, dated October I-,
1942, conveying all      of   the Ravalli     Land   and   Irrigation
Company's right, title and interest in the Daly Ditch project
to the State Water Conservation Board.         From that date, the
Water Conservation Board, and its successor DNRC, undertook
operation of the Daly Ditch Water Project and continued to
perform the water contracts with purchasers such as Mielkes
through the 1982 irrigation season.
        Prior to 1942, the Estate of Margaret Daly (holder of
about 1,250 acres) and the Bitterroot Stock Farm (holder of
about 2,700 acres), as successors in interest of Marcus Daly,
had not contracted with Ravalli Land and Irrigation Company
for the purchase of water though these holders had continued
to use water from the project on lands not sold by the Stock
Farm.     At the time of the take-over by the State and. prior
thereto, the Estate of Margaret Daly and the Bitterroot Stock
Farm negotiated contracts with Ravalli Land and Irrigation
Company similar to the water purchase contracts held by other
water users on the project beginning February 1, 1942.
      This project was the only state-owned water project that
the State directly operated, maintained and repaired.                In
this it was unique among all the other projects owned by the
State, as other state projects were operated and maintained
by the various vrater users associations.            The Daly Ditch
Project, however, was never self-supporting; that is, it was
never paid for wholly by the water users.           From 1943, until
the project was given up by the State, the debts exceeded
credits by some $600,000.
      In 1979, the legislature directed the DNRC to dispose of
the Daly Ditch Project and to cancel and write off accounts
receivable carried on the books of the Department.                 The
legislature further directed that if the DNRC was not able to
dispose of the project as provided by law, then the Daly
Ditch Project should be abandoned prior to January 1, 1983.
By    quitclaim   deed     dated   December   23,   1982,   the   DNRC
transferred all of its right, title and interest in and to
the    Daly    Ditch     Project   to   the   Rava-lli Water      Users
Association.      By quitclaim deed dated December 31, 1982,
Ravalli Water Users Association transferred all of its right,
title and interest in and to the Daly Ditch Water Project to
the Daly Ditches Irrigation District.          That District, which
is the defendant in this case, is now the operator of the
Daly Ditch Project.
      The water contract assigned by John Kalberer to Percy A.
Mielke is one of the water contracts taken over by the State
of Montana as a result of the transfer from the Ravalli Land
and Irrigation Company to the State Water Conservation Board.
The State of Montana furnished water continuously to Mielkes
under Contract No. 90 from 1946 through 1982 by means of the
Daly Ditch Project.       Mielke terminated his payments as billed
in 1980, though he had previously paid in every year since
1946.   The Mielkes received water for irrigation from the
project for the irrigation seasons of 1981 and 1982, but made
no payment.    By letters dated in 1982, the Mielkes asserted
that they were not claiming contract water but were claiming
water under an 1864 water right and therefore they had no
obligation to pay any further water charges under the water
contract.
     The    Mielkes   had   originally   petitioned   to   join   the
Irrigation District, but have since withdrawn their petition
and refused to join the District.        Rased on their refusal to
join the District           their failure      make payments, the
Irrigation District locked the headgate that diverts water to
the Mielkes' property.       By stipulation, during the pendency
of this litigation, irrigation waters have been supplied to
the Mielkes.
     The payments by Mielkes under Contract No. 90 have never
exceeded charges for water in excess of 50 acre units.            The
District Court found:
     60. The Mielkes and their predecessors have never
     paid any amount to anyone, nor have they or their
     predecessors ever been billed for any irrigation
     used over and above the 50 acre units. Therefore,
     the Mielkes have had the free and unencumbered use
     of irrigation water since the Spring of 1946 and
     their predecessors had and enjoyed such status
     prior to that date. Assuming Mielkes' total water
     use is 200 miner's inches for 98.44 acres, the
     amount of water used on 48.44 acres thereof is 49%
     of the total or 98 miner's inches.
     The District Court entered judgment for Mielkes on the
basis of adverse use for 93 (sic) miner's inches as a first
priority right in Gird Creek, for up to four flood irrigation
applications, for seven days each, on their lands between May
1 and September 30 of each year.         This is the judgment from
which appeal is taken.
     Since    the    basis   of   the District Court        judgment is
adverse use, we will discuss further facts pertaining to such
judgment as    found by      the court from the evidence as we
discuss the legal issues here.
     The acquisition of title by adverse possession or title
by prescription is a common law development associated with
the ownership and possession of land.          At first ownership and
possession    went     hand-in-hand.         The   common    law   early
recognized that one could be the owner of land and be only in
constructive possession of it.         There evolved the principle
that constructive possession follows title and can only be
overcome or defeated by actual possession adverse thereto.
     In Verwolf v. Low Line Irrigation Co. (1924), 70 Mont.
570, 578, 227 P. 68, 71, we said that a water right, a right.
to the use of water, while it partakes of the nature of real
estate, is not land in any sense, and that the right to the
use of water for irrigation or other lawful purposes may be
lost by one and acquired by another by prescription.                 In
determining whether a water right is gained by prescription,
it is usually necessary for the courts to apply principles
that developed out of statutes or case law relating to the
adverse use of real estate.
    A title acquired by prescription is sufficient against
all, S 70-19-405, MCA, and our statutes recognize two ways
for the acquisition of such title.       One may claim adverse use
founded on an instrument or judgment, S 70-19-407, MCA, or by
actual occupancy under claim of title not founded on an
instrument or       judgment.      Section    70-19-409, MCA.       The
difference seems to be that occupancy under a claim founded
on instrument or judgment, subject to statutory limitations,
will provide title to the whole tract, whereas occupancy
under a claim not founded under an instrument or judgment
gives title only to the land actually occupied.
     In this case, Mielkes contend their title is derived
under both methods.    They apparently founded a claim of right
under the Sherrill appropriation of 1864, though the legal
title to this appropriation appears to have been severed from
the lands when the Estate of Marcus Daly placed title to the
lands in one corporation, and title to the water rights in
another.     Mielkes have contended before the District Court
and in this Court that despite the documentary separation of
the water rights from the lands, in actual practice since
1901 there has been no actual severance.      Accordingly, the
Mielkes have filed a statement of claim for existing water
rights before the water courts of this State for 200 miner's
inches of Gird Creek for use between May 1 and September 30
of each year based on the 1864 Jacob Sherrill right.    Mielkes
argue that the severance by conveyance of the water rights
did not give rise to any physical change in the quality,
quantity or availability of water used on Mielkes' lands, nor
to their periods or purposes of use.     Ritterroot Stock Farm
had no legal tit1.e to any water rights nor contract for water
after 1901, until 1942, just before the transfer to the
State.     On this basis, Mielkes contend that the transfers by
the Daly interests in 1901 merely severed the title to the
land and water rights but did not sever the use of the water
to which it had been appurtenant, especially as to Gird
Creek.
     The District Court made reference to this argument in
its findings and conclusions, but apparently did not rely on
the same.    If it had determined that the Mielkes' adverse use
of water was founded on an instrument giving rise to color of
title, the result, applying principles derived from adverse
use   in   land     cases, would be    that the Mielkes would be
entitled to 200 miner's inches of water without reduction,
based on a use right.       Instead the District Court reduced the
Mielke claim to 93 (sic) miner's inches, and from that we
must conclude that the District Court, though not clearly
indicating, did not find a title based on adverse use founded
on an instrument or judgment.          In any event, we determine
that any claim of adverse use by the Mielkes in this case
cannot be founded on the Sherrill appropriation which was
severed from the land in the Daly transfers.                The annual
payment by the Kielkes on Contract No. 90 is a recognition of
the para.mount right of the State of Montana to sell the water
as a separate property interest from the land.               For that
reason, we are not concerned with a dispute of fact between
the parties as to whether there are sufficient waters in Gird
Creek to supply 200 miner's inches of water as claimed by the
Mielkes.    The defendan.ts contend that a considerable portion
of the water in Gird Creek is not Gird. Creek water but is
supplemental water transferred by the project from Skalkaho
Creek.     Since we determine that Mielkes have not established
adverse use to 200 miner's inches founded on an instrument or
judgment,     the    resolution   of   the   fact   issue    makes     no
difference.
      We    turn     then   to   determine   whether   Miel.kes      have
established an actual adverse use of the wa.ters under a claim
of title not founded on an instrument or judgment.                   All
parties agree that the elements of proof required to sustain
a claim of prescriptive water rights are:
      1.   A minimum of 5 years contin.uoususe (10 years prior
to 1953);
        2.     Exclusive use by          the claimant       (uninterrupted and
peaceable) ;
        3.     Open use;
        4.     Use under claim of right (or color of title);
        5.     Use    that    is    hostile,    that      is,   an   invasion    of
another's claimed right which the owner has the opportunity
to prevent;
        6.     Use by the claimant of water at a time when the
owner needed the water;
        7.     Use substantial enough to put the owner on notice of
the deprivation; and,
        8.     The owner must have been in position to maintain an
action        to      prevent      the   cl-aimant's usage           through    the
prescriptive period.
        Smith v. Krutar            (1969), 153 Mont. 325, 457 P.2d 459;
Grimsley v. Estate of Spencer (Mont. 1983), 670 P.2d 85, 40
St.Rep. 1585.
     The           facts    found by     the District Court include the
following:
     Mielkes          had,    since the acquisition of               their   lands,
utilized 200 miner's inches of water per year, at least three
to four times during the irrigating season for a period up to
seven days each time.              The other contract user of irrigation
water from Gird Creek was Ritterroot Stock Farm, itself,
which        had     sold   the    Mielke   lands    to    their     predecessor,
Kalberer, and had assigned their rights to him for 60 acres
of irrigation water (of which 10 acre units had later been
disposed)      .      John    Roberts     of   the   Bitterroot       Stock    Farm
testified that the Stock Farm had difficulty obtaining enough
water downstream from Mielkes to fulfill its needs.                             The
Mielkes and the Bitterroot Stock Farm used the water in
rotation,         t h e S t o c k Farm t a k i n g t h e w a t e r when M i e l k e s were

n o t using it.           There was e v i d e n c e t h a t i n most s e a s o n s t h e r e

was    enough w a t e r          f o r both     farms,     a l t h o u g h on one o c c a s i o n

t e s t i f i e d t o by Mielke, t h e Stock Farm had g i v e n up i t s r i g h t

b e c a u s e t h e r e was n o t enough w a t e r l e f t o v e r a f t e r t h e Mielke

usage t o j u s t i f y p a y i n g a n i r r i g a t o r on t h e S t o c k Farm.              The

i r r i g a t i o n u s e by t h e M i e l k e s o f 9 8 . 4 4 a c r e s was open i n t h a t

there       was     a    county      road     alongside        their      acreage       and     the

amount       of     their        irrigation       use    was       open    and     obvious       to

persons t r a v e l i n g along t h a t road, including t h e d i t c h r i d e r s

for    the       District;        moreover,       the    District         h e a d q u a r t e r s was

only    a    short distance              from t h e Mielke          farm.         The    lateral

d i t c h from t h e h e a d g a t e on Gird Creek on M i e l k e s '                   l a n d was

owned       by     the     Mielkes        and    except       on    one     occasion,          they

g e n e r a l l y opened t h e h e a d g a t e t h e m s e l v e s when t h e y needed t o

take water.              Robert Lowery t e s t i f i e d t h a t h i s f a t h e r , Glen

Lowery,      had been a d i t c h r i d e r f o r t h e S t a t e i n t h e e a r l y

years of          i t s operation of            the project,         and h i s f a t h e r had

t o l d him t h a t t h e Mielke r i g h t was t h a t o f " f r e e w a t e r " which

apparently          was     interpreted         t o mean       a    first      right      to    the

w a t e r s o f G i r d Creek.           The f a t h e r a p p a r e n t l y b e l i e v e d t h a t

t h e Mielkes had a w a t e r r i g h t i n G i r d Creek b a s e d on some

color of t i t l e not then explained.

       Equally           apparent       from     the     record,       however,         are     two

F a c t o r s which m i l i t a t e a g a i n s t a t i t l e by p r e s c r i p t i o n i n t h e

Mielkes.          First,        t h e owner o f t h e Daly D i t c h P r o j e c t d u r i n g

a l l of     t h e p e r i o d o f c l a i m e d a d v e r s e u s e was t h e S t a t e o f

Montana.          While t h e B i t t e r r o o t S t o c k Farm may i t s e l f have had

d i f f i c u l t y i n g e t t i n g w a t e r b e c a u s e o f t h e Mielke u s e ,          the

S t o c k Farm was i t s e l f a c o n t r a c t u s e r , and t h e e v i d e n c e f a i l s

to    disclose           that     any    shortage        of    water       which      may      have
occurred for the Stock Farm under its water contract was
brought to the attention of the owner of the project, the
State of Montana.    A substantial question exists whether the
State of Montana as owner had notice that the Mielkes were
claiming adversely to it with respect to the waters in excess
of those provided under Con-tractNo. 90.
     Secondly, for 34 years the plaintiffs paid the State of
Montana what they were annually billed for the use of the
water on their lands under a contract based upon 50 acres.
By payment to the owners of the water right, the plaintiffs
recognized in them a superior right to sell the waters to the
Daly Ditch system.
     In Sherlock v. Greaves (1938), 106 Mont. 206, 216, 76
P.2d 87, 90-91, where the defendants maintained a right to
waters in a ditch by adverse possession, this Court said:
    Since the claim of the defendants, if any, to the
    waters of Crow Creek is not made under an
    a-ppropriation by them, any claim to the use of the
    water as against the plaintiffs, who are not the
    owners of the "Swede Ditch," cannot be adverse to
    the rights of such plaintiffs. The defendants by
    their payment to the owners of that ditch recognize
    in those plaintiffs and their predecessors in
    interest a paramount right, and therefore there was
    no basis for a finding of adverse possession by the
    defendants. (Citing a case.)
     It is, of course, true that the statement of the State's
ditch rider, Lowery, seemed to indica-te his belief that the
Mielkes were entitled to "free water" as of right.      It is
also true that title by prescription can arise from mistaken
assumption of title.    See Calfee v. Duke (Texas 1976), 544
S.W.2d 640.
    However, in this case we have the additional problem
that when the Mielkes took waters from Gird Creek over the
years in this case, they were taking waters admittedly paid
for by them as contract waters, and mixed with waters to
which they now claim adverse use.                 In that regard, the
possession of the Mielkes to the use of the water was not
exclusive, but was in participation with the owner, the State
of Montana.    Title by an adverse use cannot then be gained,
if we apply to this case the principles that are applicable
to   adverse user       of   lands:    "[Wlhen two persons are in
possession the seisin follows the owner.              Where either owned
a better title than the other, the law wil.1 refer the joint
occupancy to the right of such owner."                5 Thompson on Real

Property, S 2547, at 626 (1979).
      The   rule   is    "tha.t in    case   of   a    mixed   or   common
possessj-on of     land by     both   parties to a        suit, the    law
adjud.ges the riqhtful possession to him who holds legal
title, and no length of time of possession can give title by
adverse possession as against the legal title."                 Vider v.
Zavislan (Colo. 1961), 362 P.2d 1.63, 166.            -- Carley v.
                                                      See also
Davis   (Okla. 1969), 452 P.2d        772, 776,        (Mixed or    shared
possession is not the kind of possession that gives rise to
title by prescription).
     We stated in Smith v. Krutar, 153 Mont. at 330, 457 P.2d


     Developing case law in this state provides three
     basic prerequisites for establishing adverse user:
     (1) that the claimant used water at a time when
     the 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.        (Citing Ring v.
     Schultz (1962), 141 Mont. 94, 101, 375 P.2d 1.08,
     111.)
      If the use of property of another was permissive in the
beginning, the use can be changed into a hostile and adverse
use only by the most unequivocal conduct of the user; and the
evidence of adverse use m.ust be strictly construed against
the adverse user, and every reasonable intendment should be
made in favor of the true owner.       Price v. Western Life
Insurance Co. (1944), 115 Mont. 509, 514, 146 P.2d 165, 167.
     There is no showing here that the owner, the State of
Montana, was notified by the Plielkes, that it as owner was
being deprived of water to which it was entitled.   Bitterroot
Stock Farm may have had notice of such use; but notice to
another contract user would not constitute notice to the
State.     The Mielkes' claim to title by prescription to t.he
excess water over their contract supply, therefore, fai1.s.
     The    defendants, State of Montana   and   DNRC   raise a
further issue that a title by adverse possession may not be
acquired against the State.   Mielkes object to the raising of
this issue upon the grounds that it was not considered in the
District Court.    Our search of the record reveals that while
the issue may have been raised in briefs, it does not appear
that the District Court considered the issue.       Because we
have decided the question of title by adverse use on other
grounds foregoing, we have not in this opinion considered the
issue of whether an adverse title under the circumstances of
this case may be acquired. against the State.
     The District Court concluded that Contract No. 90 had
been terminated and was no longer in effect.     No appeal was
taken from that portion of the District Court judgment.
    We reverse the judgment of this cause and remand the
same to the District Court with directions to enter judgment
in favor of the defendants.
We Concur:




      C h i e f Justice
The Hon. Henry Loble, District Judge, dissenting:


     I respectfully dissent.

     The District Court entered judgment in favor of the
Mielkes, on    the basis of adverse use, granting them               93
miner's inches as a first priority right in Gird Creek.             Our
review    is   confined   to   determining     whether      there    is
substantial credible      evidence   to    support   this   decision.
Helehan v. Ueland    (1986), 725 P.2d 1192, 1194, 43 St.Rep.
1679, 1682.    "In so determining, we must view the evidence in
the light most     favorable to the prevailing party."              -
                                                                    Id.
"Further, the evid.ence may conflict with other evidence and
still be deemed 'substantial.'"      -
                                     Id.
     The majority reverses the District Court's judgment on
the basis of "two factors which militate against a title by
prescription in the Mielkes."        First, the majority states
that "a substantial question exists whether the State of
Montana as owner had notice that the Mielkes were claiming
adversely to it with respect to the waters in excess of those
provid.ed under Contract No. 90."     (Emphasis added.)      However,

- record shows that the State had more than adequate
the
notice.    Mielke testified that he irrigated all of his land,
98.44 acres, every year since 1946, using about 200 miner's
inches of Gird Creek water each year.       He paid only for water
sufficient. to irrigate 50 acres [about 107 miner's inches].
Everytime he took water, he - - State what he was going
                            told the
to do.    He opened his own headgate and turned water from Gird
Creek into his ditch without permission.
     Robert Lowery, who was the ditch rider - - State in
                                            for the
the years 1946-1950, testified that his father, who was the
manager of the Daly Ditch Project and also employed by -
                                                       the
State, told him that Mielke was entitled to free water.
Robert Lowery also testified that Mielke was only - pay for
                                                  to

- portion of the water used and the balance - - - free water
a                                           was a
right.   Lowery gave Mielke permission to operate the headgate
in recognition of his free water right.             Lowery only allowed
people     with   a   free    water     right     to   open   their    own
headgates--others operating on a contract right were not
allowed to open their own headgate.             Rased on the record and
the District Court's decision, the term "free water" means
water that Mielke had         a right to use without charge as
contrasted to water he paid for under his Contract No. 90.
     In addition, and as the majority opinion stated, "there
was a county road alongside [Mielkes'] acreage and the amount
of their irrigation use was open and obvious to persons
traveling along that road, including the d-itch riders - -
                                                       for the
District; moreover, the District Headquarters was only a
short distance from the Mielke farm."                  (Emphasis added.)
Specifically, Mielke testified that District Headquarters was
about one-third       of   a mile     from his property       and anyone
driving on the road could. see him, with a shovel, irrigating.
He also testified that State Personnel, including the ditch
riders, drove back and forth on the road.              " [TIhere ain't a
day that goes by that there ain't some of their crew that
goes over."
     In conclusion, the record shows that the State had more
than adequate notice.
     The    second    factor, which, according to the majority
opinion, militates against adverse use is that "plaintiffs
 aid the State    ...      for the use of the water on their lands
under a contract based upon - acres."
                            50                         (~mphasisadded.)
True, "under Contract No. 90           ...   Mielkes purchased        ...
water to irrigate - acres."
                  50              (Emphasis added.)        However,
"Mielkes currently irrigate 98.44 acres."         (Emphasis added.)
Mielke testified that the most water he ever paid the State
for was that sufficient to irrigate - acres.
                                    50                   The ditch
rider, a State emplo ee, testified that:     1)    Mielke was only

- pay - - a portion of the water he used; 2)
to    for                                           the balance of
the water was a free water right; 3)    the free water was in
add-ition to what   Mielke   got under Contract No.        90, and
4)   Mielke had about a 100 inch free water right.          It was
this free water right - a.bout 100 inches, not the purchased
                      of
contract water, that Mielkes claimed on the basis of adverse
possession.   On that basis, the District Court granted such
claim.   Mielkes did not claim a right by adverse possession
to water purchased from the State and used to irrigate 50
acres.   Rather, they claimed a right, by adverse possession
to approximately 100 miner's inches used. to irrigate the
remaining 48.44 acres of their land.       Therefore, the fact
that Mielkes paid for their contract water does not affect
their claim of adverse possession of unpurchased non-contract
water.   Even the majority recognized this fact.      They stated:
" [Mielkes] were taking wa.ters admittedly paid -
                                                for        - -as
                                                           them
contract waters, and mixed with waters - which they -
                                       to           now
claim adverse use."    The majority opinion also referred to
"Mielkes' claim to title by prescription to the excess -
                                                       of
water over their contract supply    . . ."        Furthermore, the
majority questioned whether the State had notice that "the
Nielkes were claiming adversely to it with respect to waters

- excess - those provided under Contract - -
in       of                              No. 90."
     The majority's last argument is that the "possession of
Mielkes to the use of t.he water was not exclusive, but was in
participation with the owner, the State of Montana."            The
majority asserts that when two persons are in possession, the
seisin follows the owner.          In support, they cite Carley v.
Davis    (Okla. 1969), 452 P.2d          772; and Vider v.            Zavislan
(Colo. 1961.), 362         P.2d   163.     The     defendant     in    Carley
testified that his land was his continual place of work until
he put it in Soil Bank and that his cattle were on the land
all one summer.        The plaintiff testified that there had never
been a year since 1944, that he did not have possession of
such tract.       The appeals court affirmed the trial court's
determination that plaintiff's claimed. "exclusive" possession
was     shared    by     others   and    thus,     not    sufficient      for
prescriptive title purposes.
        In Vider, the defendant held             title to the disputed
tracts of land and built his temporary drift fences upon such
land.    The plaintiff had actual or constructive possession of
the land.        Under    such circumstances, the Colorado Court
applied the following rule:
        [I]n case of a mixed or common possession - -
                                                  of land
      by both parties to a suit, the law adjudges the
      rightful hossession to him who holds legal tit.le,
      and. no length of time of possession can give title
      by adverse possession as against the legal title.
      (Emphasis added.)
      These two out-of-state cases cited by the majority are
not applicable to the case at hand.              First, Carley and Vider
adjudicate ownership of land.            The water at issue in this
case was - held in ownership by the State in its role as a
         not
sovereign.       The State obtained the use of this water from
Ravalli Land and Irrigation Co. and sold the - thereof, as
                                             use
a ditch company, in the same manner as its predecessor.                  Only
the - of the water for purposes of sale was a.cquired by the
    use
State.     Norman v. Corbley (1905), 32 Mont. 195, 203, 79 P.
1059,    1060.         Secondly, there    was     no     mixed   or    common
possession, by the Mielkes and the State, of the water at
issue.      Mielkes had exclusive use of the water.                  Mielke
testified that he irriga.ted - of his land every year since
                             all
1946.     There is no evidence that the State also used this
water.
       The District Court concluded that the Mielkes satisfied
all requirements for adverse possession of a water right for
93 miner's inches.            "This Court will not substitute its
judgment for that of the trier of fact.                  We will consider
only     whether    substantial credible           evidence    supports   the
findings and conclusions.                Findings will n.ot be overturned
unless there is a clear preponderance of evidence against
them, recognizing that evidence may be weak or conflicting,
yet still support the findings."                Jensen v. Jensen (Mont.
1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930.                 Further, the
appellant must overcome the presumption that the District
Courtls order is correct.            Jensen v. Jensen (1979), 182 Mont.
472, 597 P.2d          733.   "Finally, a reviewing court is never
justified in substituting its discretion for that of the
trial court."       Marriage of Ward (Mont. 1986), 725 P.2d 1211,
1213, 43 St.Rep.          1825, 1827.        "In determining whether the
trial    court     abused     its    discretion, the question        is not
whether the reviewing court agrees with the trial court, but,
rather, did the trial court in the exercise of discretion act
arbitrarily without the employment of conscientious judgment
or     exceed    the    bounds      of   reason,   in   view   of   all   the
circumstances, ignoring recognized principles resulting in
substantial injustice."             Porter v. Porter (1970), 155 Mont.
451, 457, 473 P.2d 538, 541.
       Because there is substantial evidence supporting the
District Court's decision and because the District Court did
not act arbitrarily, I would affirm its decision granting
Mielkes a water right of 93 miner's inches on the basis of
adverse possession.
     However,    such    decision      brings    UP    another
question--whether adverse possession can be acquired against
the State under the facts of this case.     Mielkes argue that
this issue was not set forth, before trial, a.s a defense and,
therefore, was waived.   The issue was raised in pre-decision
briefs, but it was not ruled upon by the ~istrict Court.
Therefore, I would remand this case for findings of fact and
conclusions of 1-aw on the question of whether such defense
was waived and, if not waived, for findings and conclusions
on whether adverse possession can be obtained against the
State und-er the facts of this case.    See, State v. Shirokow
(Cal. 1980), 605 P.2d 859, 866.


                                  Hon. Henry Loble
                                  Judge, Sitting for
                                  Justice John C.




 Mr. Justice Frank B. Morrison, Jr.:
       I concur in the foregoing dissent of Judge Loble.
