NIXON v HUTTINGA

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No. 12544 I N THE SUPREME COURT O T E STATE O M N A A F H F OTN 1973 CLIFFORD Y. NIXON and O G L. NIXON, husband and w i f e , LA P l a i n t i f f s and A p p e l l a n t s , JELKE HUTTINGA and LOUWINA HUTTINGA, husband and w i f e , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , Honorable FJ. W. L e s s l e y , Judge p r e s i d i n g . Counsel of Record : For Appellants : Landoe and Gary, Bozeman, Montana Hjalrnar B. Landoe argued, Bozeman, Montana Ronald K. Olson, Bozeman, Montana For Respondents: Bolinger and Wellcome, Bozeman, Montana Page Wellcome argued, Bozeman, Montana Submitted: Decided : Filed: J N 2 2 1974 A December 4, 1973 JAN 2 2 1974 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Plaintiffs Clifford Y. Nixon and Olga L. Nixon, husband and wife, appeal from a judgment dismissing their complaint in an action seeking an injunction and damages in connection with a claimed ditch right. The case was tried by the district court of Gallatin County, sitting without a jury. Following trial the district court granted defendants' motion to dismiss for failure to show a right to relief pursuant to Rule 4 ( ) 1b, M.R.Civ.P. Defendants are Jelke Huttinga and Louwina Huttinga, husband and wife. Herein- after plaintiffs and defendants will be referred to in the singular. The dispute concerns an irrigation ditch which runs across defendant's land and connects Little Bear Creek with Big Bear Creek. Plaintiff proceeded on the theory that he had a ditch right by virtue of grant, explicitly rejecting any claim of right by adverse possession. ~efendant's answer put in issue the existence of this right. Plaintiff's proof was not extensive. He introduced his deed which conveyed to him a water right in Bear Creek and "water ditches appurtenant to said premises or used in connection therewith * * *." The deed also contained a general conveyance of his grantor's interest in any I'water ditches to the same belonging ** *.I' Plaintiff testified that the ditch in question was in existence some 38 years ago when he purchased the property and he had used it at irregular intervals, most recently in 1961 or 1962, to divert water from Little Bear Creek to a point on Big Bear Creek above his irrigation head works. On cross-examination plaintiff admitted the ditch was in such a state of disrepair that even apart from the damage done by defendant it was completely unusable. At plaintiff's request the district court took judicial notice of the judgment decreeing plaintiff a water right in Bear Creek, b u t t h e d i s t r i c t c o u r t found t h a t t h e judgment d i d n o t g i v e p l a i n t i f f a r i g h t t o d i v e r t w a t e r from L i t t l e Bear Creek. Here, t h e only q u e s t i o n p r e s e n t e d f o r review i s whether o r n o t t h e d i s t r i c t c o u r t e r r e d i n h o l d i n g t h a t t h e s e f a c t s under t h e a p p l i c a b l e law f a i l e d t o show a r i g h t t o r e l i e f . W e find t h e d i s t r i c t c o u r t d i d n o t e r r i n s o holding. Because o f t h e p r o c e d u r a l d e c i s i o n t o d i s m i s s f o r f a i l u r e of p l a i n t i f f ' s proof i n t h e d i s t r i c t c o u r t , we a r e c o n s t r a i n e d t o view t h e evidence i n a l i g h t most f a v o r a b l e t o p l a i n t i f f . MacDonald v. P r o t e s t a n t Episcopal Church, 150 Mont. 332, 435 P.2d 369. However, t h i s does n o t r e l i e v e p l a i n t i f f of t h e burden o f producing evidence i n s u p p o r t of each element e s s e n t i a l t o h i s recovery. S e c t i o n 93-1501-1, R.C.M. 1947. P l a i n t i f f proceeded on t h e t h e o r y t h a t he possessed by v i r t u e of g r a n t a r i g h t i n t h e d i t c h i n q u e s t i o n . To e s t a b l i s h t h i s r i g h t p l a i n t i f f must show t h a t t h e r i g h t claimed was i n f a c t g r a n t e d t o him. P l a i n t i f f attempted t o show t h e g r a n t of t h e d i t c h r i g h t through i n t r o d u c t i o n o f h i s deed w i t h i t s conveyance s p e c i f i c a l l y of t h e d i t c h r i g h t s connected w i t h h i s w a t e r r i g h t on Bear Creek and g e n e r a l l y o f a l l w a t e r d i t c h e s belonging t o t h e property. He a l s o t e s t i f i e d a s t o t h e u s e and e x i s t e n c e of t h e ditch. While a warranty deed such a s t h a t o f f e r e d by p l a i n t i f f i s g e n e r a l l y considered prima f a c i e proof of good t i t l e (26A C.J.S. Deeds 5 1 8 2 ( f ) ) t h i s presumption extends o n l y t o p r o p e r t y s p e c i f i c a l l y d e s c r i b e d by such deed. I n t h i s c a s e t h e only d i t c h r i g h t s which can b e s a i d t o be s p e c i f i c a l l y d e s c r i b e d were t h o s e connected w i t h t h e r i g h t on Bear Creek. The d i s t r i c t c o u r t had b e f o r e i t t h e judgment awarding p l a i n t i f f a w a t e r r i g h t i n Bear Creek. From t h a t judgment t h e d i s t r i c t c o u r t determined t h a t t h e w a t e r r i g h t i n Bear Creek d i d n o t g i v e p l a i n t i f f a water r i g h t i n L i t t l e Bear Creek. That judgment was n o t made a p a r t of t h e r e c o r d on t h i s appeal. Accordingly, s i n c e we have no b a s i s f o r review of t h e d i s t r i c t c o u r t ' s d e t e r m i n a t i o n , we must assume t h a t t h e d e n i a l of a w a t e r r i g h t i n L i t t l e Bear Creek was c o r r e c t . Joy v. L i t t l e , 134 Mont. 82, 328 P.2d 636. It f o l l o w s t h a t t h e d i t c h i n q u e s t i o n cannot be a d i t c h which was s p e c i f i c a l l y g r a n t e d a s connected w i t h t h e water r i g h t . Since t h e d i t c h r i g h t was n o t one of t h o s e s p e c i f i c a l l y g r a n t e d by p l a i n t i f f ' s deed, t h e deed a l o n e does n o t s e r v e a s prima f a c i e evidence of p l a i n t i f f ' s claimed d i t c h r i g h t . To e s t a b l i s h h i s claimed d i t c h r i g h t p l a i n t i f f must show n o t only t h a t he was g r a n t e d a l l "water d i t c h e s t o t h e same belonging" b u t t h a t t h e d i t c h he now c l a i m s was i n f a c t a d i t c h which belonged t o t h e p r o p e r t y a t t h e time of t h e g r a n t . There was only p l a i n t i f f ' s testimony t h a t t h e d i t c h was i n e x i s t e n c e and o c c a s i o n a l l y used. There was n o t h i n g t o i n d i c a t e t h e d i t c h b elonged t o h i s g r a n t o r ; t h a t h i s g r a n t o r had some r i g h t t h e r e i n ; o r even t h a t h i s g r a n t o r claimed t o have such an i n t e r e s t . The e x i s t e n c e of t h e d i t c h and o c c a s i o n a l u s e a r e a s c o n s i s t e n t w i t h permissive u s e a s they a r e w i t h u s e by r i g h t . Plaintiff's f a i l u r e t o e s t a b l i s h t h a t t h i s d i t c h was w i t h i n t h e g e n e r a l g r a n t c o n t a i n e d i n h i s deed of " a l l water d i t c h e s t o t h e same belonging" i s f a t a l t o h i s c l a i m of r i g h t by v i r t u e of g r a n t . The judgment of t h e d i s t r i c t c o u r t f s affirmed. n / ,/chief J u s t i c e ............................... Justices. Mr. Justice Frank I. Haswell specially concurring: I concur in the result. Under the facts here, plaintiff's right to an injunction and damages requires establishment of a water right in plaintiff to the waters of Little Bear Creek. There is a complete failure of proof in this respect. Here plaintiff is attempting to supplement the waters of Big Bear Creek (in which he has a water right) by diversion from the waters of Little Bear Creek (in which he has no water right) and thus enhance his water rights to the detriment of others. Justice.

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