                              No. 82-448

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1983



WILLIAM GRIFFEL,
               P'laintiff and Appellant,

     -vs-
COVE DITCH COMPANY,
               Defendant and Respondent.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Stillwater,
                The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

     For Appellant:
               Lee Overfelt; Overfelt Law Firm, Billings, Montana
                                                              7


     For Respondent :
               Joseph M. Bradley, Laurel, Montana



                              Submitted on Briefs:    August 18, 1983
                                           Decided:   January 5, 1984




                              Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
        In an action for damages for crop loss with a counter-
claim for injunctive relief, the Stillwater County District
Court denied plaintiff damages and granted defendant injunc-
tive relief against plaintiff.            We modify the injunctive
judgment and as modified, we affirm.
        In 1958 Griffel acquired certain farm property from
James Anhin in Stillwater County, Montana.           Included in the
purchase was 39.18 shares of stock in the Yellowstone Ditch
Company.      Cove Ditch Company provides water to shareholders
of Yellowstone pursuant to a contract dated January 25, 1906.
The 1.906 contract required that the Yellowstone Ditch Company
and all its shareholders turn over to the Cove Ditch Company
the     ownership,    operation    and    maintenance     of    the   old
Yellowstone Ditch and a right-of-way along the entire length
of the canal so Cove coul-d enlarge the canal to serve its own
shareholders.       In return, shareholders of Yellowstone would
receive the amount of water they received prior to the con-
tract free of charge.
        The contract obligates the Cove Ditch Company to use
all proper diligence and reasonable care to keep the requi-
site amount of water flowing in the ditch, but specifically
exempts Cove from furnishing such amount of water during
periods of extreme low water in the Yellowstone River or when
unavoidable     accidents occur.         The   1906 contract     further
obligates the Cove Ditch Company to maintain the level of the
water    in   the   ditch   at   the   same height   as    in   the old
Yellowstone Ditch, so that the water could flow through the
headgates of the Yellowstone shareholders as then located or
as constructed after the date of the contract by mutual
consent.
       The Cove Ditch Company employs a ditch rider or ditch
superintendent to manage and operate the ditch, to maintain
the ditch, and to adjust water diversion by shareholders in
times of low water.      Cooperation is required from all sha-re-
holders to ensure the availability of water.
       Since 1959 Griffel has attempted to irrigate a particu-
lar portion of his property higher in elevation than the
ditch itself.      Evidence indicates that this property had not
been previously irrigated on a regular basis.
       Griffel has     utilized   two methods   to   irrigate this
property.       First of all, he placed a check or dam on the
ditch to raise the level of water behind the check higher
than normal-. This allowed water to flow to the higher lands
by   gravity.     The check is constructed of several boards
placed in the water vertically, supported by a horizontal log
placed across the ditch.          There is testimony that would
indicate this method has not been used by any of Griffelfs
predecessors.
       When Griffel used the check system, water would back up
the ditch, increasing pressure therein and causing seepage
through the banks.      Also, the flow downstream would be re-
duced, affecting the irrigation of farms below the check.
       Cove's ditch superintendent is responsible for water
delivery    to    shareholders of   both   Yell.owstone   and   Cove.
Therefore, he would remove some of the boards in Griffel's
check to improve the flow in the ditch.
       The second method by which Griffel would irrigate was
by pumping.       He would pump water to land both lower and
higher than the ditch.     This occurred without permission from
Cove and sometimes this method was used simultaneousl-y with
the check system.   The ditch superintendent testified that he
thought Griffel was pumping after he made his rounds attempt-
ing to conceal such activity.
      In his deposj-tion, Annin stated that his irrigation
method was essentially by gravity flow and that he only
attempted to pump to the higher lands on several occasions
but it was ineffective.   He further stated that he understood
that pumping required separate permission from Cove.
     According to the 1906 contract, Griffel's 3 9 . 1 8 shares
of Yellowstone stock entitles him to approximately 400 miners
inches of water.    Testimony indicates that by utilizing each
method to irrigate higher lands, he was taking considerably
more than his contractual allotment, especially when checking
and pumping were simultaneous.
      It should be noted that on the concrete supports of the
headgate, there are two marks, one above the other.        The
ditch superintendent testified that he never let the water
level behind Griffel's check go below the lowest mark, usual-
ly it was left between the two marks.     Frank Wodnik, a pro-
fessional irrigation engineer, testified that if the water
level was maintained at the lower mark Griffel would receive
over 400 inches of water, even more if his lateral ditches
were clean and unobstructed.     This witness further testified
that Griffel could irrigate all but two acres of the property
in question with a water level set at the lower mark and
properly maintained lateral ditches.
     Griffel brought the present action alleging that Cove
had a duty to deliver him approximately 400 miners inches of
water and has failed to do so.    He argues that Cove has also
failed to maintain the ditch and provide necessary water
checks, pumps, power and equipment.         Because of Cove's fail-
ure to perform its duty, Griffel contends that he has not
been able to adequately irrigate his land between 1968 and
1973, causing substantial crop loss.              He alleges injury
between these years. From 1974 to the present, Griffel has
received sufficient water for irrigation.
       The action was initially brought in 1973 seeking damag-
es in the amount of $20,000.           Griffel's original counsel
retired, and his new counsel filed an amended complaint on
June 3, 1980, demanding $104,621 plus punitive damages.              By
stipulation the request for punitive damages was dropped.
Cove subsequently filed a counterclaim and third party com-
plaint against Griffel and Yellowstone.           The action against
Yellowstone was dismissed.
       The case was tried on April 12 and 13, 1982, before the
Honorable Diane G. Barz of the Thirteenth Judicial District.
The District Court held that use of the check and open pipes
and pumps to irrigate lands above and below the ditch results
in a diversion of water in an amount greater than the 400
miners inches allowed under the contract.             This change in
diversion and amount diverted is a violation of the 1906
contract.    The court further held that Cove has provided
Griffel with water pursuant to the contract and thereby has
not   breached   any   of   its   duties   to   him   under   the   1906
contract.
       The court enjoined Griffel from checking the ditch
higher than the lowest mark on the headgate and from placing
and removing the check without prior notice to Cove.            He was
further barred from pumping water from the ditch and irrigat-
ing lands above the ditch without prior consent and approval
from Cove.
        From this ruling Griffel appeals and raises four issues
for our consideration:
        1.   Did the District Court err in determining that Cove
did not breach any duties to Griffel according to the 1906
contract and that it wa.s Griffel who violated the terms of
the contract?
        2.   Did the District Court err by prohibitin.9 Griffel
from pumping without the consent and approval of Cove?
        3.   Did the District Court err by prohibiting Griffel
from irrigating land higher       in elevation than the ditch
without consent and approval of Cove?
        4.   Did Griffel acquire a riqht to pump from Cove ditch
by adverse possession?
        First, Griffel argues that the findings and conclusions
of the District Court regarding the breach of contract are
not supported by the evidence.       Some are even contrary to
undisputed evidence.
        Cove, on the other hand, contends that substantial
evidence supports the finding that Griffel was never denied
water and Cove did not cause him any crop loss.         Further,
there is substantial evidence indicating that Griffel re-
ceived more than his contractual share of water when he used
the check and pumped from the ditch.
        The scope of review for District Court findings and
conclusions sitting without a jury is well settled in Mon-
tana.    In Cameron v. Cameron (1978), 179 M0n.t. 219, 587 ~ . 2 d
939, reviewing this area of la.w,we stated:
              "'This Court's function in reviewing
              findings of fact in a civil action tried
              by the district court without a jury is
              not to substitute its judgment in place
              of the trier of facts but rather it is
              "confined to determining whether there is
              substantial credible evidence to support"
            the findings of fact and conclusions of
            law.   Hornung v. Estate of Lagerquist,
            155 Mont. 412, 420, 473 P.2d 541, 546.'
            Olson   v.  Westfork   Properties, Inc.
            (1976), 171 Mont. 154, 557 P.2d 821, 823,
            33 St.Rep. 1133.
            "Although conflicts may exist in the
            evidence presented, it is the duty of the
            trial judge to resolve such conflicts.
            His findings will not be disturbed on
            appeal where they are based on substan-
            tial though conflicting evidence, unless
            there is a clear preponderance of evi-
            dence against such findings. [Citations
            omitted.]" 587 P.2d at 944-945.
     On the question of substantial evidence, we have held:
            "'Substantial evidence' is evidence such
            'as will convince reasonable men and on
            which such men may not reasonably differ
            as to whether it establishes the [pre-
            vailing party's] case, and, if all rea-
            sonable men must conclude that the
            evidence does not establish such case,
            then it is not substantial evidence. '
            Morton v. Mooney (1934), 97 Mont. 1, 33
            P.2d 262, 265; Staggers v. USF&G (1972),
            159 Mont. 254, 496 P.2d 1161, 1163. The
            evidence may be inherently weak and still
            be deemed 'substantial' and substantial
            evidence may conflict with other evidence
            presented. Campeau v. Lewis (1965), 144
            Mont. 543, 398 P.2d 960, 962." 587 P.2d
            at 944-945.
     With respect to determining the credibility of witness-
es, we have ruled that determination of the weight given to
the testimony is the primary function of the trial judge
sitting without a jury and not that of this Court.
at 945; Hellickson v. Barrett Mobile Home Transport, Inc.
(1973), 161 Mont. 455, 507 P.2d 523.
     All   of the above principles were reiterated in the
recent case of Turley v. Turley (Mont. 1982), 649 P.2d 434,


     The present   case   is based   upon   the   1906 contract.
Thus, in light of the principles stated above, we must deter-
mine whether there is substantial evidence supporting the
District Court's interpretation of the contract and conclu-
sions based thereon.
       The contract between Cove and Yellowstone provided that
shareholders of     Yellowstone would     receive    free water      in
proportion to their respective interest in Yellowstone in
return for property rights allowing Cove to enlarge the
existing ditch.     The contract established a method by which
the total flow rate could be calculated before expansion of
the ditch.    From this Yellowstone shareholders would receive
their respective share of water.       The total flow rate prior
to enlargement was 3 1 0 3 . 2 8 miners inches.   Griffel had 3 9 . 1 8
shares of Yellowstone stock which entitled him to approxi-
mately 4 0 0 miners inches of water.
      The District Court essentially found that by damming
the ditch to a level higher than that of his predecessors and
by irrigating high ground not historically irrigated Grif£el
has increased the amount of water diverted in violation of
the 1 9 0 6 contract.   The court also held that Griffel's rights
are not impaired by limiting the level of water behind the
check to the lower of the two marks on the concrete support.
Finally, the District Court found that Cove has not breached
any of its duties or responsibilities under the contract.
      We hold the District Court was correct in finding that
Griffel had violated the terms of the contract by utilizing
the check and pumps, as there is substantial evidence that he
was taking considerably more than the 4 0 0 inches to which he
was entitled under the contract.         Also, we hold that the
court was correct in finding Cove did not violate the terms
of the contract, as there is substantial evidence that Cove
supplied Griffel at all times with his allotment of water.
      As previously mentioned, the testimony of Frank Wodnik
indicates that Griffel's diversion system could carry over
400 inches of water when the ditch is checked to the lower
mark, if his lateral ditches were properly maintained.      In
fact, with properly maintained ditches, he could irrigate all
of the property in question except two acres with 400 inches
of water.   Wodnik further testified that backing the water up
to the highest mark provides Griffel with substantially more
than 400 miners inches.
      Wes Thatcher, ditch superintendent for Cove, testified
that he never lowered the water level below the lower mark on
the concrete supports which provides enough water to flow
into Griffel's diversion pipes.   He also stated that most of
the time he allowed the water level to be maintained between
the higher and lower marks.   His testimony further indicates
that Griffel was never denied water and that when he backs
the water up to the higher mark, Griffel gets 500 inches or
better.
      Jim Meyers leased the property in question from Annin
during the years immediately preceding Griffel's purchase of
such property.   He testified that Cove had never denied him
water nor caused him any crop loss.
      The above testimony is substantial evid-ence supporting
the District Court's conclusion that Griffel, through his
irrigation methods, was taking more water than allotted to
him in the contract, thus violating the contract.    The above
testimony also supports the conclusion that Cove did not
breach any duties owing to Griffel.
      We recognize that there is conflicting evidence that
does not support the District Court's conclusions.    However,
we will not sit in the place of the District Court and
resolve such conflicts.        Moreover, such conflicting evidence
does     not   form    a   preponderance   supporting   a   contrary
conclusion.
         Next Griffel contends that the contract does not pro-
vide that flood irrigation be the sole method of irrigation.
Hence, as long as Griffel only diverts his 400 inches of
water, his actual method of diversion is immaterial under the
contract and the District Court erred in prohibiting him from
pumping without Cove's consent.
         Cove argues that restrictions on Griffel's practices
are reasonable and do not deprive him of his proper share of
water.     In fact, checking the ditch to the lower mark allows
Griffel to receive at least 400 inches of water by flood
irrigation; thus, there is no error in prohibiting Griffel
from pumping.
         Resolution of this issue depends upon whether according
to the contract or Montana law Griffel can change his method
of diversion.         First, the contract does not specifically
establish a method         for shareholders to utilize to divert
their share of water from the ditch.        Any term that arguably
implies such conclusion would possibly reflect the state of
the art in 1906 but does not create a covenant in this re-
gard.     Further, the existing law at the time Griffel alleges
injury did not prohibit a change in the method of diversion
but prohibited a change in point of diversion or change of
use that could injure other appropriators.         Section 89-803,
R.C.M.    1947; see e.g., Thompson v. Harvey (1974), 164 Mont.
133, 519 P.2d 963.

         We hold that Griffel should not be prohibited from
pumping his entitlement from Cove Ditch.       The contract uncon-
ditionally allows Griffel 400 miners inches of water and he
should be able to divert such water by whatever method is
most feasible for his purposes.          A contrary interpretation
would foreclose utilization of future technological advances
in water diversion and irrigation techniques.        Thus, as long
as he only takes his contractual allotment of water, Griffel
should not be prohibited from pumping from the ditch, and the
District Court erred in so ruling.
        Griffel also argues that the District Court erred by
prohibiting him from irrigating acreage above the canal.       The
contract does not speak to what acreage can be irrigated.
        Cove asserts that those lands have not historically
been irrigated and doing so requires more water than Griffel
is entitled     to.   This, in effect, deprives shareholders
downstream of their fair sha.re of water.
        As with the method of diversion, there is no provision
in the contract indicating what land a shareholder can irri-
gate.    Further, a change in use of water, under then existing
law, was allowable under section 89-803, R.C.M.      1947.   Howev-
er,    such   change could not    injure the rights of others.
Thompson, supra; Spaeth v. Emmett (1963), 142 Mont. 231, 383
P.2d 812; McIntosh v. Graveley (1972), 1.59 Mont. 72, 495 P.2d.
186; Thrasher v. Mannix     &   Wilson   !1933), 95 Mont. 273, 26
P.2d 370; Lokowich v. City of Helena (1913), 46 Mont. 575,
129 P. 1063; Hansen v. Larsen (1911), 44 Mont. 350, 120 P.
229.
         In this case, the evidence showed that Griffel was
trying to irrigate land that had not historically been irri-
gated.     In essence, he was attempting to change the use of
his water.      Furthermore, his lateral ditches taking in di-
verted water were in such condition tha.t to irrigate the
a-creage in question he was required to take a quantity of
water greater than his contractual allocation.              This wa.s
accomplished by using the check or by pumping.          Frank Wodnik
testified that these lands could only be irrigated by damming
the water up to the highest mark on the headgate.            In sum,
this change of use would require Griffel to take more water
than he was entitled.
         Moreover, there is substantial evidence to support the
District Court finding that the use of the check to dam the
water to the highest mark deprives downstream users from
water.     Phillip Fox, farmer and a member of Cove's board of
directors stated that when "Griffel puts his check in, the
water drops in the ditch behind the check, and everybody down
the   line, especially        the   lower end, they don't   get any
water. "
         Injury   is   also   caused   to   landowners upstream when
Griffel uses the check.             Thatcher testified that the in-
creased pressure on the ditch caused by backed up water
behind the check causes seepage into the property of upstream
landowners.
      We hold that the testimony discussed above is substan-
tial evidence supporting the District Court's finding that
Griffel's changed use         (irrigating acreage higher that the
ditch) causes injury to other water users by checking the
ditch higher than normal a.nd pumping water in excess of his
entitlement.      Consequently, the District Court did not abuse
its discretion by prohibiting Griffel from irrigating proper-
ty situated above the canal to the extent where he would
misuse the check or pump or divert more than 400 inches of
water.     The District Court, however, cannot prevent irriga-
tion of acreage higher than the canal if Griffel only diverts
his contractual entitlement of 400 miners inches.
      Finally, Griffel argues that he acquired a right to
pump out of the ditch by prescription.   This issue is moot
since we have decided that as long as he only diverts his
contractual allotment of water, he cannot be prohibited from
pumping from the ditch.
     We modify the District Court judgment to allow Griffel
to pump from the ditch and to irrigate acreage higher than
the ditch so long as he takes no more than his contractual
allotment.   As so modified, the judgment of the District
Court is affirmed.




                               s M! 4
                                d (1 &
                                  Chief Justice



We concur:
