                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44303

JADE MORTENSEN and KYLIE                )
MORTENSEN,                              )
                                        )
      Plaintiffs-Counterdefendants-     )                   Pocatello, September 2017 Term
      Respondents,                      )
v.                                      )                   2017 Opinion No. 128
                                        )
GALUST BERIAN and YVETTE N.             )                   Filed: December 21, 2017
STURGIS,                                )
                                        )                   Karel A. Lehrman, Clerk
     Defendants-Counterclaimants-       )
     Appellants.                        )
_______________________________________ )

       Appeal from the District Court of the Seventh Judicial District of the State of
       Idaho, Madison County. Hon. Alan C. Stephens, District Judge.

       The judgment of the district court is affirmed.

       Dunn Law Office, PLLC, Rigby, for appellants. Robin D. Dunn argued.

       Rigby, Andrus & Rigby Law, PLLC, Rexburg, for respondents. Hyrum D.
       Erickson argued.
                             _____________________

HORTON, Justice.
       Galust Berian filled in a ditch on property owned by Yvette Sturgis. The ditch served
property owned by Jade and Kylie Mortensen. The Mortensens sued Berian and Sturgis seeking
damages and to have the ditch reopened. Berian counterclaimed for trespass. Following a court
trial, the district court ruled in favor of the Mortensons on their claim regarding the ditch and
awarded the Mortensens damages for the cost of repairing the ditch. The district court also found
in favor of Berian on his counterclaim for trespass but awarded only nominal damages. Berian
and Sturgis appealed. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       The Mortensens, Sturgis and Berian own adjacent parcels that were once part of a single
parcel. A previous owner divided the larger parcel and sold two of the three lots to Berian in
1989. In 2004, the Mortensens purchased the remaining lot. In 2011, Berian encountered


                                                1
financial difficulties and one of his lots was repossessed and subsequently purchased by Sturgis.
Sturgis’ lot is situated between the Mortensens’ parcel and that owned by Berian.
       Berian is an artist. Sturgis and Berian entered into an agreement whereby Berian is
providing Sturgis with artwork as payment for Sturgis’ parcel. The agreement also gives Berian
the right to Sturgis’ parcel until payment is complete.
       This dispute relates to a ditch crossing Sturgis’ parcel to the Mortensen property. In
September of 2014, Berian decided to fill in the ditch. After receiving permission from Sturgis to
do so, he hired an unidentified individual to fill in the ditch over the length of the Sturgis
property. The following spring, Mr. Mortensen entered the Sturgis property to perform
maintenance on the ditch only to find that it had been destroyed. Although Berian had posted
“No Trespassing” signs around the perimeter of his property, Mr. Mortenson entered Berian’s
property to confront him about the destruction of the ditch.
       The Mortensens own four shares of capital stock in the Reid Canal Company which
entitles them to receive water from the Reid Canal. After weighing conflicting evidence, the
district court found that the Mortensens had received water from the Reid Canal Company by
way of the ditch across Sturgis’ property and rejected Sturgis and Berian’s claim that the ditch
had been abandoned.
       The district court’s initial findings of fact and conclusions of law briefly addressed
Berian’s counterclaim, stating that it had been “dropped during trial” and therefore would not be
addressed. The Mortensens moved for reconsideration, asking the district court to dismiss
Berian’s counterclaim with prejudice. After a hearing on the motion, the district court issued
amended findings of fact and conclusions of law and a corresponding judgment. The judgment
ordered that the ditch be reopened, awarded Mortensen $1,020 for the cost of repairing the ditch,
and awarded Berian $50 in nominal damages for Mortensen’s trespass. Berian and Sturgis timely
appealed.
                                 II. STANDARD OF REVIEW
       “Following a bench trial, this Court’s review is ‘limited to ascertaining whether the
evidence supports the findings of fact, and whether the findings of fact support the conclusions
of law.’ ” Morgan v. New Sweden Irrigation Dist., 160 Idaho 47, 51, 368 P.3d 990, 994 (2016)
(quoting Borah v. McCandless, 147 Idaho 73, 77, 205 P.3d 1209, 1213 (2009)). “This Court will




                                                 2
not set aside a trial court’s findings of fact unless the findings are clearly erroneous.” Borah, 147
Idaho at 77, 205 P.3d at 1213 (2009).
        “Clear error will not be deemed to exist if the findings are supported by substantial and
competent, though conflicting, evidence.” Pandrea v. Barrett, 160 Idaho 165, 171, 369 P.3d 943,
949 (2016) (quoting State Dep’t of Health & Welfare v. Roe, 139 Idaho 18, 21, 72 P.3d 858, 861
(2003)). If there is evidence in the record that a reasonable trier of fact could accept and rely
upon in making the factual finding challenged on appeal, there is substantial and competent
evidence. Greenfield v. Wurmlinger, 158 Idaho 591, 598, 349 P.3d 1182, 1189 (2015).
       “[T]his Court exercises free review over matters of law and is not ‘bound by the legal
conclusions of the trial court, but may draw its own conclusions from the facts presented.’ ”
Morgan, 160 Idaho at 51, 368 P.3d at 994 (quoting Borah, 147 Idaho at 77, 205 P.3d at 1213).
However, “we will not substitute our view of the facts for the view of the district court.”
Marshall v. Blair, 130 Idaho 675, 679, 946 P.2d 975, 979 (1997). “In view of this role, the trial
court’s findings of fact will be liberally construed in favor of the judgment entered.” Sun Valley
Shamrock Resources, Inc. v. Travelers Leasing Corp., 118 Idaho 116, 118–19, 794 P.2d 1389,
1391–92 (1990).
                                         III. ANALYSIS
   A. The district court’s findings regarding Berian and Sturgis’ claim that the ditch had
      been abandoned are not clearly erroneous.
       Berian and Sturgis ask this Court to review the factual findings of the district court
regarding the abandonment or forfeiture of the ditch and contend that the district court erred “in
its factual analysis and misapplied the law.” Berian and Sturgis claim that the ditch was
abandoned or forfeited under Idaho Code section 42-222(2). Berian and Sturgis claim that there
was evidence that did not support the court’s findings, including testimony from various
witnesses that corroborates their theory that the ditch had been abandoned.
       Neither abandonment nor forfeiture are favored by this Court “and clear and convincing
proof is necessary to support a claim” of either. Crow v. Carlson, 107 Idaho 461, 467, 690 P.2d
916, 922 (1984). “[T]he common law doctrine of abandonment is still viable in Idaho and is
distinguished from statutory forfeiture[,]” requiring each claim to be analyzed separately. Id.
       We first consider Berian and Sturgis’ theory of forfeiture based upon Idaho Code section
42-222(2). This theory simply does not apply to the issue before the district court because such a



                                                 3
claim applies only to water rights, 1 not to ditch rights. As we explained in Mullinix v. Killgore’s
Salmon River Fruit Co., 158 Idaho 269, 346 P.3d 286 (2015), “a ditch right for the conveyance
of water is recognized as a property right apart from and independent of the right to the use
of the water conveyed therein. Each may be owned, held and conveyed independently of the
other.” Id. at 277, 346 P.3d at 294 (emphasis added) (quoting Simonson v. Moon, 72 Idaho 39,
47, 237 P.2d 93, 98 (1951)). Thus, we consider only Berian and Sturgis’ claim that the ditch was
abandoned.
           Whether abandonment has occurred is a question of fact. See Bedke v. Pickett Ranch &
Sheep Co., 143 Idaho 36, 40, 137 P.3d 423, 427 (2006).
                   The word “abandon” is held in this connection to mean “to desert or
           forsake.” It is the relinquishment of a right by the owner thereof without any
           regard to future possession by himself or any other person, but with the intention
           to forsake or desert the right. As to whether or not a water right, the water itself,
           the ditch, canal, or other works, have actually been abandoned or not, depends
           upon the facts and circumstances surrounding each particular case. . . .
Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 555, 208 P. 241, 243 (1922).
Abandonment of a ditch right must be evidenced by a clear, unequivocal and decisive act.
Weaver v. Stafford, 134 Idaho 691, 698, 8 P.3d 1234, 1241 (2000), overruled on other grounds
by Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010). “Mere nonuse of [a ditch] does not
effect an abandonment.” Id. Abandonment “is not dependent necessarily upon length of time but
upon the essential element of intent.” Gilbert v. Smith, 97 Idaho 735, 738, 552 P.2d 1220, 1223
(1976) (discussing water right).
           Berian and Sturgis claim that the district court’s finding that the ditch was not abandoned
is not supported by the evidence and testimony presented at trial. They contend that the trial
court disregarded testimony from various witnesses, including Berian, that contradict the district
court’s finding.


1
    Idaho Code section 42-222(2) provides:
                     All rights to the use of water acquired under this chapter or otherwise shall be lost and
           forfeited by a failure for the term of five (5) years to apply it to the beneficial use for which it was
           appropriated and when any right to the use of water shall be lost through nonuse or forfeiture
           such rights to such water shall revert to the state and be again subject to appropriation under this
           chapter; except that any right to the use of water shall not be lost through forfeiture by the failure
           to apply the water to beneficial use under certain circumstances as specified in section 42-223,
           Idaho Code.
(emphasis added).


                                                              4
       At trial, Berian contended that the only ditch on the property prior to 2013 was one that
he had dug by hand and that Mortensen did not construct the ditch in question until 2013.
Confronted with conflicting evidence, the district court found there was evidence that a ditch
existed and had serviced the Mortensen parcel before and after Berian purchased his property.
The following are the more pertinent of the district court’s specific factual findings:
                The ditch conveying water to the Mortensen property has been in
       existence for many decades and it has not always been well maintained.
       Nevertheless it was able to convey water.
                …
                No evidence was presented that the ditch was abandoned by Mortensen or
       their predecessors in interest. Rather, the evidence showed that the prior owners []
       conducted maintenance on the ditch.
                Aerial photographs show the ditch in the same location in 1992, 2004,
       2011, 2012, 2013, and 2014. No aerial photographs were presented in which the
       ditch does not appear.
                …
                The Mortensens purchased their property in 2004, and used the ditch each
       irrigation season from 2005 to the time it was filled in by Berian.
Having reviewed the record, we find that substantial and competent evidence support each of
these findings, recognizing that the district court’s statement that “[n]o evidence was presented
that the ditch was abandoned by Mortensen or their predecessors in interest” could have been
more accurately stated as follows: “No evidence was presented that Mortensen or their
predecessors in interest intended to abandon the ditch.”
       Significant to our resolution of this claim on appeal (as well as the decision regarding
attorney fees on appeal), the district court made explicit findings regarding Berian’s credibility:
              Berian’s testimony regarding the non-existence of the ditch is not credible
       in light of the aerial photographs, the testimony of several persons with
       knowledge of the existence of the ditch, photographs of the headgate and cement
       ditch headgates on the Sturgis property, Mortensen’s repeated use of Reid Canal
       water prior to 2013, and the inconsistencies of his own testimony.
       “[W]e defer to the trial court’s special opportunity to determine the credibility of the
witnesses who have testified, and to weigh the evidence presented.” Carter v. Carter, 143 Idaho
373, 378, 146 P.3d 639, 644 (2006) (quoting State Dep’t of Health & Welfare v. Roe, 139 Idaho
18, 21–22, 72 P.3d 858, 861–62 (2003)). Thus, we find no merit in Berian and Sturgis’ assertion
that the district court erred by refusing to accept their claim that the Mortensens’ ditch rights
were abandoned.



                                                  5
    B. The district court did not err in awarding only nominal damages for the trespass
       counterclaim.
        Berian was awarded fifty dollars by the district court as nominal damages for Mr.
Mortensen’s trespass, consistent with Idaho Code section 6-202. A prevailing party asserting a
claim of trespass is entitled to “treble the amount of damages which may be assessed therefor or
fifty dollars ($50.00), plus a reasonable attorney’s fee. . . .” I.C. § 6-202. Berian claims that the
district court erred by failing to award adequate damages and by declining his request for an
award of attorney fees.
        The following is the entirety of Berian’s opening brief’s analysis of the adequacy of
trespass damages awarded by the district court and its refusal to award attorney fees:
                The court awarded nominal damages of $50 which seems rather cavalier.
        Very few people, let alone judges, would award $50 if it were their daughter and
        self that were being threatened and subjected to vulgar and profane language on
        their own property by a drunken individual. Mortensen had been drinking alcohol
        to make matters worse and presented great fear in Galust and Julia Berian.
                As an artist who is intent on privacy and concentration, such a distraction
        is devastating. Berian discussed his migraines, inability to work, fear and
        emotional imbalance as a result of the action.
                In essence the district court found that the appellant prevailed on the
        counter-claim but failed to award adequate damages or award fees which are
        available. I.C. § 6-202.
        …
        The appellant should have been granted fees on his counterclaim pursuant to the
        trespass statute of I.C. § 6-202.
The difficulty for this Court posed by Berian’s argument is that he does not identify the standard
of review that we are to apply to his claim of error. At best, he has identified certain facts 2 which
he evidently believes warrant an award of damages in excess of the statutorily-prescribed
nominal damages.
        The standard of review that we apply when reviewing a trial court’s findings of fact as to
the amount of damages proven by a claimant is that of substantial and competent evidence. Such
a factual determination will be upheld on appeal if the findings are supported by substantial and
competent, although conflicting, evidence. Enright v. Jonassen, 129 Idaho 694, 697–700, 931
P.2d 1212, 1215–18 (1997).


2
  We note that Berian does not attempt to identify the locations in the record where the facts upon which he relies
are to be found.


                                                        6
        Berian’s argument appears to ask this Court to give greater weight to certain facts than
did the district court. Unfortunately for Berian, we are not free to do so. “When we review the
record to determine whether substantial evidence exists we are precluded from substituting
our judgment for that of the fact finder as to the credibility of witnesses, the weight of
testimony and the reasonable inferences to be drawn from the evidence.” Schneider v.
Schneider, 151 Idaho 415, 424, 258 P.3d 350, 359 (2011) (emphasis added) (quoting State v.
Bettwieser, 143 Idaho 582, 588, 149 P.3d 857, 863 (Ct. App. 2006)). For this reason, we will not
disturb the district court’s factual finding as to the amount of damages Berian proved.
        Berian’s claim that the district court erred by failing to award attorney fees under Idaho
Code section 6-202 is fatally flawed due to his failure to “identify the applicable standard of
review, much less attempt to apply it.” Cummings v. Stephens, 160 Idaho 847, 853, 380 P.3d
168, 174 (2016). The statute commands an award of “a reasonable attorney’s fee which shall be
taxed as costs, in any civil action brought to enforce the terms of this act if the plaintiff 3
prevails.” I.C. § 6-202 (emphasis added).
        The trespass claimant must prevail. The district court explicitly held that the Mortensens
were the prevailing parties. Berian’s opening brief made no effort to explain why this conclusion
was erroneous. “The determination of who is a prevailing party is committed to the sound
discretion of the trial court, and we will not disturb that determination absent an abuse of
discretion.” Green River Ranches, LLC v. Silva Land Co., LLC, 162 Idaho 184, 188, 395 P.3d
804, 808 (2017) (quoting Bream v. Benscoter, 139 Idaho 364, 368, 79 P.3d 723, 727 (2003)).
        Because Berian has not attempted to explain why the district court’s determination that
the Mortensens were the prevailing parties, our analysis in Cummings is equally applicable to the
present case. Berian’s claim of error fails because he:
        makes no attempt to address the matters we consider when evaluating a claimed
        abuse of discretion. He does not contend that the district court failed to perceive
        the issue as one of discretion, that the district court failed to act within the
        boundaries of this discretion and consistent with the legal standards applicable to
        the specific choices available to it or that the district court did not reach its
        decision by an exercise of reason.
Cummings, 160 Idaho at 853, 380 P.3d at 174.
    C. We award the Mortensons attorney fees on appeal.
3
  The fact that Berian was a counterclaimant, rather than a plaintiff, is of no moment. This Court considers a
defendant who successfully brings a counterclaim for trespass to be a plaintiff for the purposes of awarding fees
under the statute. Greenfield v. Wurmlinger, 158 Idaho 591, 606, 349 P.3d 1182, 1197 (2015).


                                                       7
       Both parties in this appeal have requested attorney fees under Idaho Code section 12-121.
This statute permits courts to “award reasonable attorney’s fees to the prevailing party or parties
when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or
without foundation.” I.C. § 12-121. These conditions “exist when an appellant has only asked the
appellate court to second-guess the trial court by reweighing the evidence or has failed to show
that the district court incorrectly applied well-established law.” Wagner v. Wagner, 160 Idaho
294, 302, 371 P.3d 807, 815 (2016); Snider v. Arnold, 153 Idaho 641, 645–46, 289 P.3d 43, 47–
48 (2012); City of Boise v. Ada Cnty., 147 Idaho 794, 812, 215 P.3d 514, 532 (2009).
       The Mortensons are the prevailing party in this appeal and we find it appropriate to award
attorney fees to the Mortensons under Idaho Code section 12-121.
                                      IV. CONCLUSION
      We affirm the judgment of the district court and award attorney fees and costs on appeal
to the Mortensens.


Chief Justice BURDICK, and Justices JONES, BRODY and Justice Pro Tem DUNN CONCUR.




                                                8
