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NO. 95-553

IN THE SUPREME COURT OF THE STATE OF MONTANA
1996


APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton,
Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Dirk A. Williams, Church, Harris, Johnson &

Williams, Missoula, Montana
For Respondent:
Walter E. Congdon, Congdon Law Office, Missoula,
Montana

Submitted on Briefs: August 1, 1996
Decided: December 13, 1996 Filed:

Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the Twenty-First Judicial District Court, Ravalli
County. Following a bench trial, the District Court awarded Plaintiffs, Lee and Donna Wareing, a prescriptive ditch easement across Schreckendgust's property, costs and attorney fees. Additionally, the District Court ordered the parties to equally share the costs of replacing the ditch culvert crossing Defendant Schreckendgust's property. Defendant Schreckendgust appeals. We affirm.
We restate the issues on appeal as follows:
1.
Must the elements of a prescriptive easement be proved by a preponderance of evidence or by clear and convincing evidence?

2.
Did the District Court err 'in
concluding that Wareings established all elements of their prescriptive ditch easement claim?

3.
Under the doctrine of estoppel,
are Wareings precluded from asserting a prescriptive easement right against Schreckendgust after they acquired an express ditch easement from a neighboring landowner over property previously owned by Schreckendgust?

4.
Did the District Court err when it failed to expressly limit the scope of Wareings' prescriptive ditch easement both as to location and method of maintenance?

5.
Is Schreckendgust entitled to attorney fees under

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Montana Law