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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: Decided: Filed:

December 9 ,

198N

January 1 6 , 1 9 8 7

JAN 16 1987

Mr. Justice John C. Court.

Sheehy delivered the Opinion of the

The Montana

Daly and

Ditches the

Irrigation District, the of Natural

State of and

Department

Resources

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 The District of filed the its answer, generally complaint, pleading

denying

allegations

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 affirmatively that they

general had an

denial, and by adverse use

alleging 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. Jacob Sherrill filed

In 1888,

in the county records a notice of inches of water from Gird

appropriation for 600 miner's

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 Mielkes' property) The to land and

(including what is now the Stock Farm, another Farm water

Ritterroot deed to

corporation. specifically

Bitterroot therefrom

Stock all

excepted

reserved

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. Under Contract No.

Mielkes currently irrigate 98.44 acres. 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. join the District Rased on their refusal to make payments, the

their failure

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. 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. which appeal is taken. This is the judgment from The

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. possession went hand-in-hand. At first ownership and common law early

The

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, difference. We turn then to determine whether Miel.kes have the resolution of the fact issue makes no

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. 4. 5. Open use; Use under claim of right (or color of title); 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. action The owner must have been in position to maintain an 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 following: Mielkes had, since the acquisition of their lands, facts found by the District Court include the

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

n o t using it. was

enough w a t e r

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 amount was of a county road alongside use was their open acreage and and the to

their

irrigation

obvious

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 only the a District; moreover, the District h e a d q u a r t e r s was The lateral l a n d was they

short distance

from t h e Mielke

farm.

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 ' owned by the Mielkes and except on one

occasion,

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. Lowery, years of 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

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 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. a l l of Montana. 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

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 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 the

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 ,

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. 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 See Calfee v. Duke (Texas 1976), 544

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 Where either owned

possession the seisin follows the owner.

a better title than the other, the law wil.1 refer the joint

occupancy to the right of such owner." Property, S 2547, at 626 (1979). The rule is "tha.t in both case of a

5 Thompson on Real

mixed

or

common law

possessj-on of

land by

parties to a

suit, the

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." Zavislan (Colo. 1961), 362 P.2d 1.63, 166. Davis (Okla. 1969), 452 P.2d 772, 776, Vider v.

-- Carley v. See also
(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 Our is

miner's inches as a first priority right in Gird Creek. review is confined to determining to whether this there

substantial credible Helehan v. Ueland 1679, 1682.

evidence

support

decision.

(1986), 725 P.2d 1192, 1194, 43 St.Rep.

"In so determining, we must view the evidence in favorable to the prevailing party."

the light most

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,

the - record shows that the State had more than adequate 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. for the Robert Lowery, who was the ditch rider - - State in the years 1946-1950, testified that his father, who was the the manager of the Daly Ditch Project and also employed by -

State, told him that Mielke was entitled to free water. Robert Lowery also testified that Mielke was only - pay for to a was a - portion of the water used and the balance - - - free water right. Lowery gave Mielke permission to operate the headgate Lowery only allowed to open their own

in recognition of his free water right. people with a free water right

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 for the traveling along that road, including the d-itch riders - 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 (~mphasisadded.)

50 under a contract based upon - acres."

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 50 for was that sufficient to irrigate - acres. rider, a State emplo ee, testified that: 1) The ditch

Mielke was only the balance of

to for - pay - - a portion of the water he used; 2) the water was a free water right; 3) add-ition to what 4) Mielke

the free water was in 90, and It was

got under Contract No.

Mielke had about a 100 inch free water right.

of this free water right - a.bout 100 inches, not the purchased contract water, that Mielkes claimed on the basis of adverse possession. claim. On that basis, the District Court granted such

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
claim adverse use."

- -as them

to now contract waters, and mixed with waters - which they 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 in of No. 90." - excess - those provided under Contract - 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. Davis In support, they cite Carley v.
772; and Vider v.

(Okla. 1969), 452 P.2d P.2d 163.

Zavislan
Carley

(Colo. 1961.), 362

The

defendant

in

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 Under such circumstances, the Colorado Court

the land.

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. adjudicate ownership of land. First, Carley and Vider

The water at issue in this

not case was - held in ownership by the State in its role as a 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. 1059, Norman v. Corbley (1905), 32 Mont. 195, 203, 79 P. 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. 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 We will consider supports the There is no evidence that the State also used this

judgment for that of the trier of fact. only whether substantial credible

evidence

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. Further, the

1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930.

appellant must overcome the presumption that the District Courtls order is correct. 472, 597 P.2d 733. Jensen v. Jensen (1979), 182 Mont.

"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, 1825, 1827. its "In determining whether the is not

1213, 43 St.Rep. trial court

abused

discretion, the question

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. (Cal. 1980), 605 P.2d 859, 866. See, State v. Shirokow

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

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



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