                                                                                  08/23/2016


                                       DA 15-0600
                                                                              Case Number: DA 15-0600

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2016 MT 204


CHRISS MACK and CAROLYN MACK,

          Plaintiffs and Appellees,

     v.

JIMMY ANDERSON, GLENDA ANDERSON,
KRISTIE ANDERSON, JOHN ANDERSON,
GLENDA F. ANDERSON and ROWDY ANDERSON,

          Defendants and Appellants.

_______________________________________

ROWDY ANDERSON and JOHN ANDERSON,

          Cross-claim Plaintiffs,

     v.

TRACEY TUREK d/b/a TUREK WATER RIGHT
RESEARCH, LLC a Montana limited liability
company, and J-5 CONSTRUCTION,

          Cross-claim Defendants.



APPEAL FROM:        District Court of the Twenty-First Judicial District,
                    In and For the County of Ravalli, Cause No. DV 2014-231
                    Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

            For Appellants:

                    Raymond P. Tipp, Tipp Buley, Missoula, Montana

                    Terry Wallace, Attorney at Law, Missoula, Montana

            For Appellees:

                    David B. Cotner, Datsopoulos, MacDonald & Lind, P.C., Missoula,
                    Montana
                                 Submitted on Briefs: June 8, 2016

                                            Decided: August 23, 2016

Filed:
         __________________________________________
                           Clerk




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Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Jimmy Anderson, Glenda Anderson, Kristie Anderson, John Anderson, Glenda F.

Anderson, and Rowdy Anderson, (collectively the Andersons) appeal from the Findings

of Fact and Conclusions of Law of the Montana Twenty-First Judicial District Court,

Ravalli County. The District Court concluded in its Order that Chriss and Carolyn Mack

(Macks) shall have access to install a headgate at the point of diversion (POD) for

Headgate No. 103 in South Burnt Fork Creek; that the Macks shall be provided access to

the same POD, and along the course of the Mack Ditch across Andersons’ property to

install the headgate at POD No. 103; that the Temporary Restraining Order (TRO),

stipulated to by the parties and Order on May 19, 2014, shall remain in full force and

effect; and that the District Court may still award the Macks all of their reasonable

attorney fees and costs under § 70-17-112, MCA. We affirm.

                                         ISSUES

¶2     The Andersons raise several issues on appeal which we consolidate and restate as

follows:

¶3     Did the District Court exceed its jurisdiction by ruling on the merits of the parties’

dispute?

¶4     Did the District Court exceed its jurisdiction by establishing or changing the POD

for the ditch in dispute?

¶5     Did the District Court usurp the Andersons’ right to a jury trial regarding the

existence of an irrigation ditch which crosses Andersons’ property?



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                  FACTUAL AND PROCEDURAL BACKGROUND

¶6    The Anderson and Mack families both own property in the South Burnt Fork

Creek Watershed in Ravalli County, Montana.        The Macks own a 160-acre section

adjacent to the Andersons, who individually own several adjoined five-acre parcels along

with a forty-acre parcel. The Mack property has fully adjudicated water rights in the

South Fork Burnt Creek which are not at issue in the case. The water rights are “high

water” rights which provide water for a limited time each year to the Mack property

when there is high runoff in the creek. The Macks’ water right claims, 76H 125130-00

and 76H 125131-00, have an attached map that depicts the general location of Headgate

103 and a ditch crossing the Andersons’ property to the Mack property. While the record

reflects some confusion regarding the name of the ditch, we will refer to the ditch as

“Mack Ditch” for clarity. The water right claims set forth the legal description for the

headgate in the SW1/4NW1/4SW1/4 of Section 4, Township 8 North, Range 19 West.

The Macks’ water rights POD was assigned the designation of Headgate 103.

¶7    After purchasing the property in 2002, the Macks performed yearly maintenance

on their irrigation ditch from South Burnt Fork Creek from the POD continuously

through 2012. In 2014, the Macks hired Tracey Turek to oversee maintenance on the

ditch to prepare for the high water season.       During this maintenance, the Macks

discovered that a dam existed on the ditch that diverted South Burnt Fork water to a pond

on the Andersons’ property. Ms. Turek contacted the Andersons about removal of the

blockage and received a hostile response. As a result, the Macks filed a complaint on




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May 8, 2014, against the Andersons alleging violations of § 70-17-112, MCA, and

seeking a temporary restraining order and preliminary injunction.

¶8     On May 9, 2014, Judge Haynes issued a TRO restraining the Andersons from

interfering with the Macks’ access to the Mack Ditch including their related rights under

§ 70-17-112, MCA, and ordered a show cause hearing for May 20, 2014. The parties

subsequently entered into a Stipulation on May 16, 2014, that the TRO should remain in

effect until further court order. The court upheld the stipulation on May 19, 2014, and

vacated the show cause hearing.

¶9     Under the May 19, 2014 Order, Ms. Turek, with a work crew and the assistance of

Dan Claggatt, water commissioner for South Burnt Fork Creek, initiated maintenance on

the Mack Ditch. While the work was ongoing Jimmy Anderson allegedly threatened to

harm Ms. Turek and anyone working on the Mack Ditch.                On May 27, 2014, the

Andersons filed a Motion to Dismiss the Macks Complaint. The motion claimed that the

Mack Ditch did not exist on the Anderson property.          The Andersons also filed a

complaint with the Bitterroot Conservation District alleging the Macks failed to get a 310

permit prior to conducting maintenance on the ditch.        The Bitterroot Conservation

District determined Macks must obtain a permit and mitigate the disturbance to the Mack

Ditch, including an improved control structure at the head of the ditch. When the Macks

and Ms. Turek attempted to comply with the Bitterroot Conservation District mitigation

order, they were stopped by the Andersons. The Andersons also obstructed the ditch with

a load of gravel near the headgate.




                                            5
¶10    In an effort to resolve the issue, the District Court held hearings to take evidence

and ascertain whether the Macks were entitled to a preliminary injunction. The Macks

presented evidence showing that the physical location of Headgate 103 and the legal

description set forth in the Statement of Claim contained a discrepancy. The Statement

of Claim included an attached map, which was not to scale, showing the ditch POD in the

SWNWSW Section 4, Township 8 North, Range 19 West. The physical location of the

headgate is in the NESWSW Section 4, Township 8 North, Range 19 West. Ms. Turek

testified that the legal land description was listed in error. The Andersons contended this

was because the Mack Ditch was not on their property but was in the SWNWSW section

as listed on the Statement of Claim.          The Macks presented extensive evidence

demonstrating the land description was in error, including the “Amended and Updated

Decree of Distribution of the Waters of the Burnt Fork Watershed, Ravalli County,

Montana” issued by the Ravalli County District Court in 1978 (1978 Decree). The 1978

Decree included a map that located and numbered the various PODs in the drainage

including Headgate 103, which was located in the NESWSW Section 4, Township 8

North, Range 19 West. Based upon this information, the Macks amended the Statement

of Claim to correct this error on April 10, 2015.

¶11    The District Court issued its Findings of Fact, Conclusions of Law, and Order on

September 16, 2015. The court found that the Macks were entitled to the preliminary

injunction, and that the Macks or their agents must be provided access to the POD in the

NESWSW Section 4, Township 8 North, Range 19 West, and along the course of the

Mack Ditch for the purpose of installing the headgate and for repair and maintenance


                                             6
purposes. The court also indicated that the Macks demonstrated a likelihood they would

prevail on the merits and reserved the issue of an award of attorney fees and costs

allowed under § 70-17-112, MCA. Andersons appeal.

                              STANDARDS OF REVIEW

¶12    District courts are vested with a high degree of discretion to maintain the status

quo through injunctive relief. Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319

Mont. 132, 82 P.3d 912. This Court will not disturb a district court’s decision to grant or

deny a preliminary injunction unless a manifest abuse of discretion is shown. Cole v. St.

James Healthcare, 2008 MT 453, ¶ 9, 348 Mont. 68, 199 P.3d 810 (citing Sweet Grass

Farms, Ltd. v. Bd. of Cnty. Comm’rs, 2000 MT 147, ¶ 20, 300 Mont. 66, 2 P.3d 825). “A

‘manifest’ abuse of discretion is one that is obvious, evident or unmistakable.” Shammel,

¶ 12. If the district court issues an injunction based on conclusions of law, we review

those conclusions for correctness. Cole, ¶ 9.

                                    DISCUSSION

¶13    Did the District Court exceed its jurisdiction by ruling on the merits of the parties’
       dispute?

¶14    Preliminary injunctions are governed by § 27-19-201, MCA, which provides in

five subsections the circumstances under which an injunction may be granted.

Arguments at the District Court were directed toward subsections (1) and (2), which

provide that a preliminary injunction may be issued:

              (1) when it appears that the applicant is entitled to the relief
       demanded and the relief or any part of the relief consists in restraining the
       commission or continuance of the act complained of, either for a limited
       period or perpetually;


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              (2) when it appears that the commission or continuance of some act
       during the litigation would produce a great or irreparable injury to the
       applicant.

¶15    We note that the subsections of § 27-19-201, MCA, are disjunctive, and findings

that satisfy one of the five factors are sufficient to support a preliminary injunction.

Sweet Grass Farms, ¶ 27 (citation omitted). For the injunction to issue, the applicant

must show that he “has a legitimate cause of action, and that he is likely to succeed on the

merits of that claim,” and must also show that an injunction is an appropriate remedy.

Sandrock v. DeTienne, 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 (citing Cole,

¶ 15). “[A]n applicant for a preliminary injunction must establish a prima facie case, or

show that it is at least doubtful whether or not he will suffer irreparable injury before his

rights can be fully litigated.” Sandrock, ¶ 16 (citation omitted). “Upon the requisite

showing, a preliminary injunction is issued to maintain the status quo pending trial,

which has been defined as ‘the last actual, peaceable, noncontested condition which

preceded the pending controversy.’”          Sandrock, ¶ 16.        Finally, regarding the

determination of a preliminary injunction, “[w]e have consistently held that a district

court should not resolve the ultimate merits of the case when initially analyzing the

propriety of a preliminary injunction.” City of Whitefish v. Bd. of Cnty. Comm’rs of

Flathead Cnty., 2008 MT 436, ¶ 18, 347 Mont. 490, 199 P.3d 201 (citation omitted).

¶16    The Andersons challenge the District Court’s factual findings and legal

conclusions arguing that the court adjudicated matters beyond the preliminary injunction

and reached the merits of the case. The Macks respond that the Andersons have failed to

identify any language in the Order which improperly reached the merits of the case while


                                             8
defending Judge Haynes’ position that the court reserved judgment on the merits without

prejudice to the ultimate resolution of the case.

¶17    The District Court held four hearings to gather evidence regarding the ditch

easement and headgate location in an attempt to determine the status quo or “the last

actual, peaceable, noncontested condition which preceded the pending controversy.”

Sandrock, ¶ 16. Because the Andersons’ defense in the matter was based on the premise

that the Macks lacked ditch rights through the Andersons’ property, not that the

Andersons were interfering with the Macks’ irrigation ditch rights, the District Court

needed to inquire whether the Macks were likely entitled to the relief they requested as

applicants for an injunction. This determination included whether the Macks possessed

water rights, and if so, how the water is delivered to the Mack property.

¶18    While the Andersons characterize this inquiry as a final adjudication on the merits,

it is clear from the District Court Order that the court’s findings were not a final

determination. The court concluded in the Order that “it is likely that the Macks will

succeed on their claims against Defendants.” Regarding the prescriptive easement the

District Court noted “[t]he Macks have established the strong likelihood they will

succeed on the merits” and listed its reasoning for the initial determination. Finally, the

court found that the status quo to be maintained in this case is the Macks’ ability to make

beneficial use of their undisputed South Burnt Fork Creek water right by way of the

historic diversion point and route of the Mack Ditch. The court established this as the

status quo, imposed the injunction, and added that a determination on the merits would

follow as part of the proceedings.


                                              9
¶19      The court determined that the Macks made a proper showing for an injunction,

including a showing that they are likely to succeed on the merits. The court was also

careful to state, both during the hearing and in its order, that it was reserving judgment on

the ultimate issues of the case. Sandrock, ¶ 24. The Andersons have not identified

language in the court’s order that reached the merits of the case. Instead, their arguments

are directed at their dissatisfaction with the court’s determination of the status quo of the

current controversy.

¶20      The District Court gathered evidence and carefully untangled the issues of the case

to establish the status quo prior to the request for preliminary injunction. The District

Court made proper findings and clearly reserved final adjudication on the merits in the

Order.     The preliminary injunction determination was not an abuse of the court’s

discretion.

¶21      Did the District Court exceed its jurisdiction by establishing or changing the POD
         for the ditch in dispute?

¶22      Andersons argue that the District Court brushed aside the Water Court’s exclusive

jurisdiction to determine points of diversion under § 85-2-234(6)(g), MCA, and created a

new POD for Headgate 103. Macks respond that no place of use or means of diversion

was changed under the court’s findings and Order.

¶23      It is well established that ditch or easement rights are separate and distinct

property rights from a water right. Connolly v. Harrel, 102 Mont. 295, 57 P.2d 781

(1936). Jurisdiction to interpret and determine existing water rights rests exclusively

with the water court. Mildenberger v. Galbraith, 249 Mont. 161, 166, 815 P. 2d 130, 134



                                             10
(1991); § 3-7-501, MCA. Conversely, district courts are granted authority to supervise

the distribution of water through ditches and other distribution means concerning water

rights which have already been adjudicated. Baker Ditch Co. v. District Court, 251

Mont. 251, 255, 824 P.2d 260, 262-63 (1992); § 85-2-406(3), MCA.

¶24   The District Court in these proceedings was tasked with the responsibility for

interpreting the 1978 Decree and the location of Headgate 103 referenced within the 1978

Decree, as it was the place of diversion for Macks’ claimed ditch right which was the

water distribution method in dispute. The 1978 Decree had a map depicting the physical

location of Headgate 103 within the NESWSW Section 4, Township 8 North, Range 19

West. The Andersons presented the District Court with evidence that had been submitted

to the Water Court, in the form of Statements of Claim 76H 125130-00 and

76H 125131-00, which indicated a different location for the Headgate 103 and which

tended to defeat Macks’ ditch claim under the 1978 Decree because it placed Macks’

POD in SWNWSW Section 4, Township 8 North, Range 19 West. In order to assess the

weight to be attributed the Statements of Claim evidence, the District Court considered

Macks argument that the Statements of Claim contained an error in the location of the

POD, as well as evidence presented by Turek, two water commissioners, Mack, and

documentary evidence. Presentation of this evidence spanned four days. The District

Court ultimately concluded that the 1978 Decree depicted the POD as claimed by Mack

and rejected Andersons’ argument that the Statements of Claim altered that which had

been set forth in the 1978 Decree. That the District Court concluded the Macks’ water

rights claims contained an error is inconsequential, except for the fact that it


                                          11
demonstrated the court weighed and considered the evidence presented in an effort to

distribute the water pursuant to the 1978 Decree. The District Court did not change the

physical location of a POD, which is the province of the Water Court, but rather

interpreted the location of the POD as depicted in the 1978 Decree, following

consideration of evidence which had also been submitted to the Water Court.

¶25    The District Court therefore was careful not to tread upon the jurisdiction of the

Water Court while maintaining its obligation to determine whether a preliminary

injunction was necessary to protect the Macks’ ditch rights. The considerations are often

discreet and demonstrate the difficulty for a district court in managing distribution

controversies concerning water.

¶26    Did the District Court usurp the Andersons’ right to a jury trial regarding the
       existence of an irrigation ditch which crosses Andersons’ property?

¶27    The Andersons’ final argument is that the District Court determined the merits of

the dispute regarding the Mack Ditch. The Andersons argue this conclusion took away

their right to a jury trial. However, this argument fails to recognize the plain language of

the District Court’s Order. Judge Haynes clearly acknowledged in the Order that the

court’s determinations were to preserve the status quo and that the rights of the parties

would be determined at trial. The Order specifically directs the parties to file status

reports within 90 days and make requests at the time for a trial setting “to permanently

decide and finalize any remaining contested issues.” The District Court anticipated

further litigation of the issues, including a final determination regarding rights on the

Mack Ditch. The Andersons’ argument that their right to a jury trial was usurped by the



                                            12
court’s status quo determination is incorrect. The District Court’s conclusions of law

were correct and the court clearly reserved the merits of the case for a jury as requested

by the Andersons.

                                    CONCLUSION

¶28    The District Court made proper findings and clearly reserved final adjudication on

the merits in the Order and the preliminary injunction determination was not an abuse of

the court’s discretion.


                                                /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER




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