                                                                                          11/14/2017


                                       DA 16-0629
                                                                                      Case Number: DA 16-0629

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2017 MT 278



JAMES C. QUIGLEY and LINDA M.S. QUIGLEY,

         Claimants, Objectors and Appellants,

RICHARD L. BECK,

         Claimant, Counter-Objector and Appellee,

AVISTA CORPORATION,

         Objector.



APPEAL FROM:         Montana Water Court, Cause No. 76F-75
                     Honorable Russ McElyea, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                     Ryan K. Mattick, Moore, O’Connell & Refling, PC, Bozeman, Montana

           For Appellee:

                     John E. Bloomquist, Bloomquist Law Firm, P.C., Helena, Montana



                                                Submitted on Briefs: September 6, 2017

                                                           Decided: November 14, 2017


Filed:

                     __________________________________________
                                       Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     James C. Quigley and Linda M.S. Quigley (Quigley) and Richard L. Beck assert

conflicting claims of ownership over four water rights for irrigation from Nevada Creek.

After presiding over a trial and conducting a site inspection, the Water Master issued a

report dividing the four rights between Quigley and Beck based on a ratio of the irrigated

acres owned by each party. Quigley filed objections with the Water Court. The Water

Court largely adopted the Water Master’s report. Quigley appeals the Water Court’s

order. We affirm.

¶2     We restate the issues on appeal as follows:

       1. Whether the Water Court erred in its interpretation of the 1909 Geary v.
          Raymond decree;

       2. Whether the Water Court erred in applying the clear error standard to the
          Water Master’s findings of fact.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     Quigley and Beck own adjoining ranches, which John W. Blair once owned as a

single property known as Finn Ranch. Finn Ranch, situated in the Blackfoot River Basin,

included lands in sections 27, 28, 33, and 34 of Township 12 North, Range 9 West. The

lands in sections 27 and 28 now belong to Beck, and the lands in sections 33 and 34 now

belong to Quigley.

¶4     In 1909, when Blair still owned Finn Ranch, the Montana Third Judicial District

Court in Powell County issued a decree in the case Geary v. Raymond (the “Geary

decree”), declaring the water rights of users of Nevada Creek and its tributaries. Among

the rights that the district court decreed to Blair were four water rights for irrigation from


                                              2
Nevada Creek. In 1912, Finn Ranch was split and sold. It has remained in separate

ownership to the present day. No deed transfer for the properties in the ensuing years has

reserved specific water rights as appurtenances to the land.

¶5      Quigley’s predecessor timely filed water rights claims, including four Nevada

Creek claims1 based on the water rights decreed to Blair in the Geary decree. Beck’s

predecessor also filed four water right claims2 for Nevada Creek based on water rights

decreed to Blair in the Geary decree. During its review of claims in preparation for the

Blackfoot River Basin Temporary Preliminary Decree, the Montana Department of

Natural Resources and Conservation (DNRC) noted that the eight claims were based on

the same four water rights and that each party was claiming the entirety of each of the

four rights. As a result, the rights claimed exceeded the total appropriations and the

DNRC attached a “decree exceeded” issue remark to the eight claims from Quigley and

Beck.

¶6      Quigley filed objections against the Beck claims, and Beck filed counterobjections

against the Quigley claims. The claims and objections were consolidated and assigned to

a Water Master for adjudication. After discovery, the Water Master presided over a

two-day trial and conducted a site visit. In his report, the Master concluded that both

Quigley and Beck were successors to a portion of Blair’s four Nevada Creek water rights.

The Master proportionally split the flow rates of each decreed right between Quigley and

Beck based on the historic number of acres irrigated on each property, using the formula


1
    Claim Nos. 76F 108071-00, 76F 108075-00, 76F 108076-00, and 76F 108077-00.
2
    Claim Nos. 76F 117732-00, 76 F 120974-00, 76F 120975-00 and 76F 120976-00.


                                             3
provided in Spaeth v. Emmett, 142 Mont. 231, 383 P.2d 812 (1963). Under this formula,

Beck received 70 percent of the decreed rights and Quigley received 30 percent.

¶7     Quigley filed objections to the Master’s report with the Water Court. After

briefing and a hearing, the Water Court largely adopted the Master’s report.

                              STANDARDS OF REVIEW

¶8     When a case involves a Water Master’s report, “[t]he Water Court reviews the

Master’s findings of fact for clear error and the Master’s conclusions of law to determine

whether they are correct.” Skelton Ranch, Inc. v. Pondera Cnty. Canal & Reservoir Co.,

2014 MT 167, ¶ 25, 375 Mont. 327, 328 P.3d 644. This Court then reviews “the Water

Court’s order de novo, to determine whether it correctly applied the clear error standard

of review to the Master’s findings of fact and whether its conclusions of law were

correct.” Skelton Ranch, Inc., ¶ 26.

¶9     Interpretation of a judgment or decree is a question of law, which this Court

reviews to determine whether it is correct. Granite Cnty. Bd. of Comm’rs v. McDonald,

2016 MT 281, ¶ 5, 385 Mont. 262, 383 P.3d 740.

¶10    Findings of fact are clearly erroneous if (1) substantial evidence does not support

the findings of fact; (2) the fact-finder misapprehended the effect of the evidence; or (3) a

review of the record leaves the court with the “definite and firm conviction that a mistake

has been committed.” Marks v. 71 Ranch, LP, 2014 MT 250, ¶ 12, 376 Mont. 340,

334 P.3d 373; Skelton Ranch, Inc., ¶ 27.




                                             4
                                       DISCUSSION

¶11 1. Whether the Water Court erred in its interpretation of the 1909 Geary v.
Raymond decree.

¶12    Quigley contends that the Water Master and Water Court incorrectly interpreted

the Geary decree as decreeing water rights for irrigation to all of Finn Ranch. Quigley

argues that the water rights could be appurtenant only to the specific lands where Blair

put the water to beneficial use. He thus contends that in order to apply established

appurtenance law to the Geary decree, the decree must be interpreted to have

incorporated Blair’s answer and amended answer, which described more fully where

Blair put his water rights to use.

¶13    The Water Master determined that the Geary decree did not attach the decreed

water rights to specific parcels; rather, the water rights “were made appurtenant to all of

[Blair’s] land as listed in his answer to the complaint.” The Water Master reasoned that

the district court was specific in listing the priority dates and flow rates, and it could have

been equally specific in listing the places of use had it intended such a meaning. The

Water Master concluded that it would be “an exercise in speculation” to match the flow

rates and priority dates listed in the decree with particular parcels mentioned in the

pleadings.

¶14    The Water Court affirmed the Water Master’s interpretation. First, it reasoned that

the decree did not incorporate Blair’s pleadings, because the claim dates and flow rates

alleged in the pleadings were rejected. Second, the references to Blair’s pleadings in the

decree were general, and the decree made similar references to other parties’ pleadings,



                                              5
some of which were less specific than Blair’s pleadings. Further, the decree specified the

point of diversion and ditch for one of the four rights. The Water Court reasoned that the

decree would have specified a point of diversion and ditch for each right if that was the

court’s intention, and that the Master properly rejected attempts to add such new findings

to the decree a century later.

¶15    Interpretation of a prior court decree is an issue of law. Granite Cnty. Bd. of

Comm’rs, ¶ 19. We review a trial court’s interpretation of such a decree to determine

whether it is correct. Granite Cnty. Bd. of Comm’rs, ¶ 19. We interpret judgments “to

have a reasonable intendment; where a judgment is susceptible of two interpretations the

one will be adopted which renders it the more reasonably effective and conclusive and

which makes the judgment harmonize with the facts and law of the case.” Granite Cnty.

Bd. of Comm’rs, ¶ 19 (quoting Gans & Klein Inv. Co. v. Sanford, 91 Mont. 512, 522,

8 P.2d 808, 811 (1932)). The court may “refer to the record in the original case” if a

decree is ambiguous. Harland v. Anderson Ranch Co., 2004 MT 132, ¶ 23, 321 Mont.

338, 92 P.3d 1160. The court should interpret the decree to be consistent with the

established and applicable law. See Granite Cnty. Bd. of Comm’rs, ¶¶ 21-22.

¶16    For a water right to be appurtenant to land it must be used for a beneficial purpose

on that land. See Section 70-15-105, MCA (“A thing is deemed to be incidental or

appurtenant to land when it is by right used with the land for its benefit.”); Castillo v.

Kunnemann, 197 Mont. 190, 196, 642 P.2d 1019, 1024 (1982) (quoting Lensing v. Day &

Hansen Sec. Co., 67 Mont. 382, 384, 215 P. 999, 1000 (1923)) (“[A] water right acquired

by appropriation, and used for a beneficial and necessary purpose in connection with a


                                            6
given tract of land, is an appurtenance.”). A beneficial use includes “the use of water for

the benefit of the appropriator” for agricultural or other uses. Section 85-2-102(4)(a),

MCA.

¶17    Quigley puts great weight on the Geary decree’s language that Blair’s

appropriations were “for the purpose of irrigating the lands belonging to them and

described in the answer of the said John W. Blair.” Quigley argues that the phrase

“described in the answer” incorporates the parts of Blair’s answer where he described

which parcels he irrigated with which claimed water rights.          However, this exact

language is used throughout the decree to introduce each declaration of irrigation rights.

It is not modified to indicate whether a particular party’s pleadings are specific or more

generalized. Read in the broader context of the entire decree, it can hardly be understood

to give Blair’s pleadings heightened importance. The Water Court held, and Beck does

not dispute, that Blair’s pleadings properly are considered in interpreting the decree and

as evidence of historic water use. But the language in the decree on which Quigley relies

does not mandate the interpretation of the decree that Quigley proposes.

¶18    As both the Water Master and Water Court observed, the decree rejected the

appropriation dates and flow rates that Blair alleged in his answer. Quigley argues that

this is not a rejection of Blair’s contentions on where the water was used. We disagree.

The Geary court did take the divisions in Blair’s pleadings into account in the decree.

Blair filed a single answer for claims from his two separate properties, Finn Ranch and

Brazil Ranch. The district court, however, divided his appropriations into two separate

groups, one for each of the two ranches. The court had two separate findings of fact—


                                            7
identified as numerals XIX and XXVI—and two separate conclusions of law—identified

as numbers 24 and 31—separating Blair’s appropriations between the Finn Ranch and the

Brazil Ranch. The decree properly divided the appropriations between the ranches to

account for where the appropriations were being put to beneficial use. Such a division

was in harmony with the law of appurtenance. See MacLay v. Missoula Irrigation Dist.,

90 Mont. 344, 353, 3 P.2d 286, 290 (1921) (citations omitted) (“A water right, legally

acquired, is in the nature of an easement in gross, which, according to circumstances,

may or may not be an easement annexed or attached to certain lands as an appurtenance

thereto. When a water right is acquired by appropriation and used for a beneficial and

necessary purpose in connection with a given tract of land, it is an appurtenance thereto

and, as such, passes with the conveyance of the land, unless expressly reserved from the

grant.”) The appropriations for Blair’s lands in Brazil Ranch were not, and under the law

of appurtenance could not be, appurtenant to Blair’s lands in Finn Ranch and vice versa.

The lands in the two ranches were not in the same “given tract of land.” MacLay,

90 Mont. at 353, 3 P.2d at 290. The law of appurtenance required this much division; it

did not require more.

¶19   A review of Blair’s pleadings and the decree shows that the district court declared

the water rights appurtenant to the irrigated lands of each separate ranch. But the decree

put few restrictions on where Blair could use the water appropriated to Finn Ranch for

beneficial purposes within Finn Ranch itself. For instance, only one of the four rights

from the decree at issue in this case specified a ditch—the Blair-Keiley Ditch—connected

to the right. Further, in the general language of the judgment, the Geary decree stated


                                            8
that the appropriators had “uninterrupted use, enjoyment and possession of the number of

inches of the waters of said Nevada creek and its tributaries according to their respective

priorities, and that they make a reasonable use of the waters allotted to them.” Because

the Geary decree itself did not specify parcels within Finn Ranch where the water right

could be used, the rights were appurtenant to all of the irrigated lands in Finn Ranch.

¶20    We conclude that the Water Master and Water Court correctly interpreted the

Geary decree in the context of the facts of the case and the applicable law. Blair’s

answer, amended answer, and pleadings do not control the place of use of the rights

decreed to Blair. Therefore, the Geary decree itself does not prevent the Nevada Creek

water rights from being made appurtenant to Beck’s lands.

¶21    2. Whether the Water Court erred in applying the clear error standard to the
       Water Master’s findings of fact.

¶22    Quigley argues that, aside from the Geary decree’s declarations, there is

insufficient evidence to support the Water Master’s finding that all four of the Nevada

Creek water rights were appurtenant to all of Beck’s irrigated land.      Quigley contends

that the Water Court misapplied clear error analysis in upholding the Water Master’s

findings. Quigley first argues that Beck did not present sufficient evidence to support a

finding that all four water rights were appurtenant to Beck’s property. Second, Quigley

argues that the Water Master misapprehended the effect of the evidence. Quigley points

to evidence he presented before the Water Master that supports his position that Blair

used one of the four water rights solely on what is now Quigley property, two of the

water rights almost exclusively on what is now Quigley property, and only one of the



                                             9
water rights on what is now Quigley and Beck property. Quigley argues finally that even

if the Water Master did not misapprehend the effect of the evidence, the Court should be

left with a firm conviction that the Water Master committed a mistake because

application of the Spaeth formula to these four rights leaves the Quigley property with

less water than the property has used historically.

¶23    The Water Court reviewed all of the evidence in the record and determined that

the Water Master’s findings were not in clear error.      The Water Court specifically

reviewed the evidence presented by Quigley to which the Water Master had assigned

little weight and determined that (1) there was substantial evidence to support the

Master’s findings; (2) the Master did not misapprehend the evidence; and (3) the

evidence as a whole did not suggest a mistake was made.

¶24    The Water Court may not simply substitute its judgment for the Water Master’s

when reviewing the Master’s factual findings. In re Eldorado Coop Canal Co., 2016 MT

94, ¶ 28, 383 Mont. 205, 369 P.3d 1034 (2016). As a reviewing court, the Water Court

must review the Water Master’s factual findings for clear error. Eldorado, ¶ 28. The

Water Court may replace the Water Master’s findings for one of only three reasons.

First, the Water Court may correct the Water Master’s findings if the findings were not

supported by substantial evidence, which “need not amount to a preponderance of the

evidence, but it must be more than a scintilla.” Skelton Ranch, Inc., ¶ 27. Second, the

Water Court may determine that a finding is clearly erroneous if the Water Master

misapprehended the effect of the evidence. Skelton Ranch, Inc., ¶ 27. Finally, the Water

Court may hold a finding clearly erroneous if, upon review of all of the evidence, it “is


                                             10
left with the definite and firm conviction that a mistake has been committed.” Skelton

Ranch, Inc., ¶ 27 (quoting Heavirland v. State, 2013 MT 313, ¶ 16, 372 Mont. 300,

311 P.3d 813). “Although conflicts may exist in the evidence presented, it is the duty of

the trial judge to resolve such conflicts. Due regard is to be given the trial court’s ability

to judge the credibility of the witnesses.” Interstate Prod. Credit Ass’n v. DeSaye,

250 Mont. 320, 324, 820 P.2d 1285, 1287 (1991).

¶25    Quigley argues that Beck failed to present substantial evidence that each of the

four water rights is appurtenant to Beck’s land. In Castillo v. Kunnemann, we held that

existence of a decree declaring a water right appurtenant to the property before its

division into smaller parcels, along with testimony that the smaller parcel was

traditionally irrigated from the ditch to which the water right was assigned, were enough

to establish appurtenance of the water right to the smaller parcel. Castillo, 197 Mont. at

195-96, 642 P.2d at 1023-24. In this case, there is no dispute that both Quigley’s and

Beck’s lands made up the Finn Ranch previously owned by Blair and to which the Geary

decree applies. As we discussed above, the Geary decree did not separate the water

rights from Nevada Creek for use on specific parcels within Finn Ranch, except for a

notation that one of the rights was to be appropriated through the Blair-Keiley Ditch. In

addition to the decree, Beck presented witness testimony, along with other evidence, that

Nevada Creek traditionally had been used to irrigate his parcels. This is substantial

evidence that the Nevada Creek water rights were appurtenant to Beck’s lands.

¶26    Quigley’s arguments amount to disagreement over the weight that the Water

Master accorded to Quigley’s evidence.        But a conflict in evidence does not prove


                                             11
misapprehension of the effect of that evidence. The Water Master considered all of the

evidence to which Quigley points on appeal: the pleadings and testimony from the Geary

decree; the 1919 affidavit in contempt against a prior owner of Quigley’s land; the 1959

Water Resources Survey (WRS) Field Notes and WRS Map; Water Commissioner

Records; and the witness testimony. The Water Master justified the weight it gave to

each of these pieces of evidence, disregarding only the 1919 affidavit. In its review, the

Water Court reviewed all of the evidence again, including the 1919 affidavit, and

determined that the Water Master had not misapprehended the effect of the evidence.

The Water Court correctly analyzed whether the evidence had been misapprehended.

¶27   Without conclusive evidence to establish appurtenance of any given right to a

specific parcel of land, the Water Master applied the formula established in Spaeth to

assign the claimed rights between the parties. Under the Spaeth formula, when an owner

divides a tract of land, “the appurtenant water right is divided in respective amounts to

each tract measured in proportion as the number of acres irrigated with the water right on

the land conveyed bears to the total number of acres irrigated by the water.” Spaeth,

142 Mont. at 237, 383 P.2d at 815. Successors in interest cannot enlarge a water right

beyond that which was conveyed. MacLay, 90 Mont. at 353, 3 P.2d at 290.

¶28   Quigley’s last argument is that this Court should be left with a firm conviction that

the Water Court made a mistake in determining that the four water rights are appurtenant

to both properties, because under the Spaeth formula he will be apportioned less water

than has been used historically on his property. Quigley points to evidence of the

historical use of Nevada Creek water on his and Beck’s lands. He also asserts that


                                           12
evidence in the record demonstrates that his land needs more water than Beck’s land due

to soil composition.

¶29    The Water Master was called upon to resolve the DNRC issue remark that the

claims exceeded the total decreed appropriation. The DNRC noted that the flow rate

decreed to Blair for these four Nevada Creek water rights had been exceeded in the

Quigley and Beck claims. It is a necessary outcome that at least one party will be

apportioned less water than it previously claimed when the Water Court adjudicates a

“decree exceeded” issue remark. We are not left with a firm conviction that the Water

Master committed a mistake in resolving the issue remark when it apportioned the parties

less water than they originally claimed. Quigley can receive only as much of the water

right to which he was entitled. Further, the Water Court concluded that Quigley failed to

prove by sufficient evidence that the Spaeth formula should be adjusted to allocate flow

rates differently based upon any assertion of duty of water issues, such as soil differences.

Although witness testimony before the Water Master referenced the different

composition of the soils, Quigley provided no further evidence to the Water Master that

quantified the different water requirements of the soils or demonstrated how the Spaeth

formula should be adjusted to account for these differences. The Water Master did not

clearly err in its factual findings and properly applied the formula from Spaeth to divide

the water right given the evidence before it.

¶30    The Water Court correctly applied the clear error analysis to the Water Master’s

findings of fact.




                                                13
                                  CONCLUSION

¶31   The Water Court’s order is affirmed.


                                                  /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




                                             14
