IN THE SUPREME COURT OF THE STATE O F MONTANA
THE MONTANA COALITION FOR STREAT4 ACCESS,
INC., a Montana non-profit corp.,
Plaintiff and Respondent,
Defendant and ~ h i r dParty
Plaintiff and Appellant,
THE STATE OF PlONTANA, MONTANA DEPARTMENT OF
LAIJDS , GARETH MOON, COI~ll!IISSIONER OF FlOZJTRNA
DEPARTMENT OF LAXDS; MONTANA DEPARTMENT OF
FISH, WILDLIFE AND PARKS, and JIM W. FLYNN,
DIRECTOR OF PlONTANA DEPARTFIENT OF FISII,
WILDLIFE AND PARKS,
Third Party Defendants and
District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Jack D. Shanstrom, Judge presiding.
COUNSEL OF RECORD:
Kirwan & Barrett; Peter M. Kirwan argued for
Hildreth, Bozeman, Montana
Goetz, Madden & Dunn; James 11. Goetz argued
Mont. Coalition for Stream Access, Bozeman,
John F. North & Lyle Manley, Dept. of State
Stanley Bradshaw, Dept. of Fish, Wildlife &
For Amicus Curiae:
Christine C. Parker, American Farm Bureau, Dillon,
J.H. Morrow for Montana Farm Bureau Federation &
Wyoming Farm Bureau Federation, Bozeman, Montana
Daniel C. Murphy for Mont. Stockgrowers & Wool Growers
Assoc., Helena, Montana
Vincent J. Kozakiewicz for Nat'l Wildlife Assoc. &
Mont. Wildlife Assoc., Missoula, Montana
Michael Coil for Trout Unlimited, Bozeman, Montana
Albert Stone, University of Montana, Plissoula, Montana
Submitted: March 22, 1984
Decided: June 21, 1984
Mr. Chief Justice Frank I. Haswell- delivered the Opinion of
This is an appeal from a Rule 54(b), M.R.Civ.P.,
fied partial judgment entered by the District Court of the
Fifth Judicial District, Reaverhead County.
After trial on
the matter of a permanent injunction, the District Court held
that the Beaverhead River is navigable for recreational use
and that the public has a. right of access up to the ordinary
high water mark without interference from appellant Hildreth.
Lowell S. Hildreth (Hildreth) is a property owner who
owns land abutting the Beaverhead River.
The river flows for
approximately one and one-half miles through his property.
The Montana Coalition for Stream Access, Inc. (Coalition), is a nonprofit Montana corporation dedicated to the
promotion of public access to Montana's rivers.
The Beaverhead River originates at the confluence of
the Red Rock River and Horse Prairie Creek in Reaverhead
It flows in a northeasterly direction from
Clark Canyon Dam through the Beaverhead Valley to a point
near Twin Bridges, Montana, where it joins the Big Hole River
to form the Jefferson River.
The Coalition filed a compla.int on April
alleging that the public and members of the Coalition were
entitled to float the Beaverhead through Hildreth's property.
The Coalition filed a motion for preliminary injunction
on May 8, 1981, stating that Hildreth had installed a fence
across the river on the downstream side of a bridge he had
built over the river and was preparing to install a cable
across the river for the opening day of fishing season.
After a hearing, the District Court entered an order for a
preliminary injunction on May 15, 1.981, enjoining Hildreth
from interfering with members of the public until the case
was decided on the merits.
Hil-dreth filed an answer, demand for jury trial and
thi-rd-party complaint against the State, the Department of
Fish, Wildlife and Parks, the Department of State Lands and
Hildreth counterclaimed against the Coali-
tion based on a theory of inverse condemnation.
After a hearing, the court, on March 21, 1982, granted
the Coalition's motion to amend the complaint and request for
injunction, struck the jury demand, and severed the trial on
the Coalition's complaint from the trial of Hildreth's thirdparty claim against the State, et al.
On the first day of
trial, June 23, 1982, the court dismissed Hildreth's counterclaim against the Coalition.
Trial took place June 3 3 through 25, 1982, with incorporation of evidence taken at the preliminary
hearing on May 15, 1981.
Expert engineers also testified on
August 9 and September 7, 1982.
On December 7, 1982, the court issued findings of fact
and conclusjons of law in favor of the Coalition and granted
the Coalition a permanent injunction declaring the Beaverhead
River subject to public access up to the high water mark as
it passes through Hildreth's lands and restraining Hil-dreth
from interfering with floaters, so long as the public stays
within the ordinary high water mark.
The following issues have been ra.ised on appeal:
Reaverhead River for recreational purposes.
Whether determination of ownership of the streambed
of the Beaverhead River is necessary to a decision in this
Whether it was error to deny Hildreth's motion to
Whether it was error to deny Hildreth a. jury trial.
Whether the District Court determined title to real
property through an injunction.
Whether it was error to sever the trial of the
third-party complaint from the trial of this matter.
Whether Hi1dret.h has been deprived of a property
right as a result of the District Court's ruling.
adopt the Coalition's
findings of fa.ct and conclusions of law virtually verbatim.
The first issue is whether the public has the right to
use the Beaverhead River for recreational purposes.
The District Court found the Beaverhead River to be
navigable for recreational use under the pleasure-boat test
and the commercial use test.
While we affirm the result, we
find it unnecessary and improper to determine a specific test
under which to find navigability for recreational use.
pleasure-boat test is a test which has not been adopted in
Montana and the commercial use test is a federal test d.esigned to determine navigability for title purposes and not
navigability for use.
Neither are suitable nor appropriate
As we stated in a previous decision, navigability for
use is determined by state law, Montana Coalition for Stream
Access v. Curran (Mont. 1984),
P. 2d.- 41 St.Rep. 906.
Article IX, Section 3 ( 3 ) , of the 1972 Montana Constitution
"All surface, underground, flood, and
atmospheric waters within the boundaries
of the state are the property of the
state for the use of its people and are
subject to appropriation for beneficial
uses as provided by law."
We have not limited the recrea.tiona.1use of the State's
waters by devisin.g a specific test.
As we held in Curran,
supra, the capability of use of the waters for recreational
purposes determines whether the waters can be so used.
Montana Constitution clearly provides that the State owns the
waters for the benefit of its people.
not limit the waters' use.
The Constitution does
Consequently, this Court cannot
limit their use by inventing some restrictive test.
Under the 1972 Constitution, the only possible limitation of use can be the characteristics of the waters themselves.
State-owned waters has the right to con.tro1 the use of those
waters as they flow through his property.
The public has the
right to use the waters and the bed and banks up to the
ordinary high wa.ter mark.
Further, as we
held in Curran, in case of barriers, the public is allowed to
portage around such barriers in the least intrusive manner
possible, avoiding damage to the adjacent owner's property
and his rights.
In addition, as we stated in Curran, nothing herein
contained in this opinion shall be construed as granting the
public the right to enter upon or cross over private property
to reach the State-owned waters held available for recreational purposes.
The second issue is whether determination of ownership of the
streambed of the Beaverhead is necessary to a decision in
Hildreth contends that the District Court erred
failing to state findings of fact and conclusions of law wj-th
rega.rd to the Martin patent.
predecessor-in-title, and su.bsequently himself, title to the
bed of the Beaverhead.
We held in Curran, supra, that the question of title to
the underlying streambed is immaterial in determining navigability
for recreational use of State-owned waters.
holding applies equally to the case now before us.
Further, other jurisdictions have determined recreational use without regard to the question of ownership of the
As in the matter now before us
"Respondents have devoted a substantial
portion of their argument on appeal to
the matter of title to the stream bed,
asserting that a finding of navigability
will result in a taking of private land.
As in both the Bohn [Bohn v. Albertson
(1951), 107 c a l . E 2 d at 749, 238 P.2d.
1281 and Mack [People Ex Rel. Baker v.
1 9 7 19 Cal.App.3d
Cal.Rptr 4481 cases, however, the question of title to the bed of a navigable
stream is not raised in this action to
determine public use rights, nor is it
relevant to the issues herein presented
(People - - - ~ a k e rv.
Mack supra, 19 Cal.App.3d at p. 1050, 97
Cal.R~tr. 448: - -v. Albertson, supra,
at p. 749, 238 P.2d 128.)
The ownership of the bed is not determinative of public navigational rights, nor
(Forestier - Johnson, 164
Cal. 24, 31-32, 39, 127 P. 156; - -Eohn v.
Albertson. suDra. 107 Cal.Aw.2d at DD.
Idaho F. & G. Ass'n v. Picabo Livestock,
Inc., suDra, 528 P 2 P t
D. 1298; Wilbour
v. Gallaaher. 77 Wa.sh.2dL 306. 462 P.2d
232, 238; 55 Ops.Cal.Atty.Gen., supra, at
p. 294; 36 0ps.Cal.Atty.Gen. 20, 26.)"
Hitchings v. Del Rio Woods Recreational
Park District. (1976), 127 Cal.Rptr. 830,
55 Cal.App.3d 560.
Since title to the underlying bed is not at issue and
is immaterial to the determination of the public's right of
use, the District Court did not err in failing to make findings of fact and conclusions of law relative to the ownership
of the streambed.
The next two issues are whether Hildreth's motion to
dismiss this action and request for a jury trial were properly denied.
Hildreth argues that
since this matter was brought
originally under the Declaratory Judgments Act, he contends
tha.t a declaratory judgment action is inappropriate in this
matter and that the District Court erred in not dismissing
Hildreth further argues that althouqh this action was
original-ly brought as a declaratory judgment action, it was
amended to change the claim to one seekina a permanent injunction.
Hildreth contends the purpose of this change was
to deny him the right to a jury trial to which he would have
been entitled under the Declaratory Judgments Act.
The Coalition responds that while the action was first
denominated as one for declaratory judgment, it has always
been injunctive in nature.
In fact, the first major court
came on May
within a few weeks of filing the complaint, a t the hearing
for a temporary injunction.
The extensive file and transcripts support the Coalition's argument that the action has always been injuncti~rein
Hildreth's position on these issues is inconsistent.
First he argues that the declaratory judgment action should
have been dismissed because it was inappropriate, but he also
contends that the court should not have allowed plaintiff to
amend its complaint because it deprived him of his right to a
jury trial under the Declaratory Judgments Act. He appears to
have been demanding a jury trial in an action which he contends should never have been tried.
To begin with, nothing in the Declaratory Judgments Act
27-17-101 through 27-17-405, MCA.
It is a recognized general
rule of law that the nature of the issues determine the right
to a jury trial.
If the issues are strictly equitable there
has not been nor is there now such a right.
As this Court
has stated previousl.y, "A judgment will not be reversed to
grant the losing party the right to a jury trial when the
record discloses nothing for the jury to try."
Bank of Spokane v. Myhre
(1940), 110 Mont. 416, 101 P.2d
With regard to the matter of the District Court allowing the Coalition to amend its complaint from an action for a
judgment to an injunction action, we find no
Rule 15, M.R.Civ.P.,
provides that leave to file an
amended complaint should be liberally granted where justice
in nature and
Since this matter has been clearly injunctive
issues equitable since inception, the
District Court did not err in allowing the amendment nor was
defendant prejudiced by such an act.
The next issue is whether the District Court determined
title to real property through an injunction.
Hildreth correctly contends that title to real property
cannot be determined in an action for an injunction.
v. Burton (1952), 126 Mont. 137, 246 P.2d 236.
the court did not determine title but rather the right of the
public to use the Beaverhead.
As we held in Curran, supra,
under the Public Trust Doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational
use may be so used by the public without regard to streambed
ownership or navigability for nonrecreational purposes.
District Court properly determined use of the Beaverhead, not
title; thus, no error.
The sixth issue is whether the District Court erred in
dismissing Hildreth's counterclaim for inverse condemnation
against the Coalition.
Hildreth's claim for inverse condemnation is based upon
the theory that there has been a taking of his land without
Such is not the case.
Public - of the
waters and the bed and banks of the Reaverhead up to the
ordinary high water mark was determined, not title.
In addition, the underlying theory of Hildreth's counterclaim is not founded in law.
The legal rule is that a
claim for inverse condemnation can lie only against a party
Irrigation District (1977), 172 Mont. 530, 565 P.2d 632.
Coalition has no such power.
The counterclaim was properly
The next issue raised by Hildreth is whether the District Court erred in severing the trial of the third-party
complaint from the trial of this matter.
We hold. that it did
On February 10, 1982, an order was entered setting
trial in this matter for March 17, 1982.
complaint against the Montana Department of Fish, Wildlife
and Parks and its Director, Jim W. Flynn, was not filed until
March 4, 1982.
The District Court properly granted
the motion for
severance pursuant to its discretionary authority under Rule
dealing with third-party practice.
hearing on the motion, the court found that Hildreth's compl-aint, filed several days before against the third-party
defendants, would entail a substantial period of time for
pretrial discovery motions and preps-ration for trial.
other hand, the Coalition was ready to proceed with trial in
Further, the District Court found that the
issues sought to be raised by Hildreth in the third-party
between Hildreth and the Coalition.
We find no abuse of
discretion in this ruling and, hence, no error.
The eighth issue is whether Hil.dreth has been deprived
of a property right by the District Court.
We hold that he
As discussed previously in this opinion and extensively
in Curran, supra, ownership of the streambed is irrelevant to
determination of public use of the waters for recreational
for recreational use is limited,
under the Montana Constitution, only by the capabilities of
the waters themselves for such use.
Hildreth has never owned
and does not now own the waters of the Beaverhead River.
Under Montana law, the public has the right to use the
Beaverhead and its bed and banks up to the ordinary high
portage around barriers.
The last issue raised by Hildreth is whether it was
error for the District Court to use the Coalition's findings
of fact and conclusions of law virtually verbatim.
however, Hildreth concedes that reliance on the Coalition's
findings of fact and. conclusions of law is not, in itself,
We further note that Hildreth does not argue that the
findings and conclusi.ons are not supported by the evidence.
Hildreth's claim of error appea-rs to be rooted in the
District Court's failure to make findings of fact and conclusions of law with regard to the Martin patent.
Hildreth has confused the issues of navigability for title
for recreational use.
regard to title was necessary. Curran, supra..
". . . will
not be overturned simply because
[it] relied upon proposed findings and conclusions submitted
In re the Marriage of Kowis (Mont. 1983) , 658
by counsel. "
P.2d 1084, 40 St.Rep. 149.
Consequently, we find no error in
the District Court's adoption of the Coalition's findings of
fact and conclusions of lab.?
In summary, we hold the following:
(1) The Reaverhead River is navi.gable for recreational
purposes and the pub1i.c has a right to use its bed and banks
up to the ordinary high water mark with limited right to
portage across private property in order to bypass ba-rriers
in the waters.
Determination of navigability for title is not
necessary or proper when the issue is one of navigability for
The public does not have the right to trespass
over private property
in order to rea.ch the State-owned
(4) Hildreth's motion to dismiss and his request for a
jury trial were properly denied.
The District Court's ruling did not determine
title to real property but rather the right of the public to
use the waters for recreational purposes.
The District Court properly dismissed Hildreth's
counterclaim for inverse condemnation and severed the thirdparty complaint from the trial of this matter.
The District Court committed no error in its
virtual verbatim adoption of the Coalition's findings of fact
and conclusions of law under the circumstances of this case.
ad?R y 4 b
Chief Jus ice
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent.
The affirmation by this Court of the recreational use
test in Curran, supra, and in this case, constitutes, in my
view, a radical departure from the well-established public
policy of the State of Montana.
Public and private rights
to use of waters have been acknowledged by this Court, and
the legislature, since statehood.
Recent sessions of the Montana
conflicts between landowners and
recreational users, and
there has been public evidence that a reasonable and legal
solution could have been achieved within
The legislature has always had priority over this
Court in fixing public policy, and I would defer to that
Under previously established law, the defendant Lowell
Hildreth, would have been entitled to a trial by jury,
and I would reverse for that purpose.
Mr. Justice John Conway Harrison, dissenting.
supra, fact wise
believe this case should have been heard before a jury and I
would reverse the District Court and send it back for trial.
in the last two paragraphs of Justice