No. 01-044
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 295N
SITZ ANGUS FARMS LIMITED PARTNERSHIP, a Montana Limited Partnership,
Plaintiff, Respondent and Cross-Appellant,
v.
EDWARD J. DALLASERRA, JR., and DONALD A. DALLASERRA,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, Honorable Frank M. Davis, Judge Presiding
COUNSEL OF RECORD:
For Appellants:
Holly Jo Franz, Gough, Shanahan and Johnson, Helena, Montana
For Respondent:
John E. Bloomquist & Patti L. Rowland, Doney, Crowley, Bloomquist and Uda, Helena, Montana
Submitted on Briefs: November 8, 2001
Decided: December 12, 2002
Filed:
__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Appellants, Edward J. Dallaserra, Jr., and Donald A.
Dallaserra (Dallaserras), appeal from the findings of fact and
conclusions of law entered by the Montana Fifth Judicial District
Court, Beaverhead County, declaring ownership and interests in
Blomquist Spring and Blomquist Reservoir. Sitz Angus Farms (Sitz)
cross-appeals the District Court’s decision denying attorney fees
to Sitz as the prevailing party.
¶3 We affirm in part, reverse in part, and remand.
¶4 We rephrase the issues on appeal as follows:
¶5 1. Did the District Court exceed its jurisdiction when granting declaratory relief regarding water rights to Blomquist Spring and water storage rights in Blomquist Reservoir?
¶6 2. Did the District Court err by denying Appellants’ post- judgment motion to certify the parties’ underlying water rights claims to the Montana Water Court?
¶7 3. Did the District Court err in denying Appellants’ motion to amend the judgment to conform to the findings of fact and conclusions of law entered by the District Court?
¶8 4. Did the District Court err in denying Appellants’ motion for a new trial?
¶9 5. Did the District Court err in denying the Respondent/Cross-Appellant an award of costs and attorney fees pursuant to § 70-17-112, MCA?
2 BACKGROUND
¶10 Dallaserras and Sitz own adjacent pieces of property. Both
pieces of property were previously owned by John E. Blomquist (Mr.
Blomquist), now deceased. In 1944, Mr. Blomquist filed a Notice of
Appropriation of Water Right in Beaverhead County, claiming the
water of certain springs. In the same year, Mr. Blomquist and his
son Emmett E. Blomquist (Emmett) developed what is known as the
Blomquist Spring and developed and constructed a reservoir known as
the Blomquist Reservoir. Water from Blomquist Spring flows in a
southeasterly direction and is conveyed to the reservoir by means
of a channel or ditch constructed by Mr. Blomquist. ¶11 The ditch, or channel, conveying water from Blomquist Spring
currently flows through Blomquist Reservoir to a headgate control
device located at the reservoir dam impoundment. Water from
Blomquist Spring is stored in Blomquist Reservoir when the water
level in the reservoir is sufficient to inundate the channel or
ditch, or when the headgate is closed and the reservoir fills.
¶12 The reservoir has two headgate outlets situated at the dam.
The north headgate is situated at the terminus of the ditch from
Blomquist Spring and controls the release of water to a ditch which
courses across Dallaserras’ property to supply water to both
Dallaserras and Sitz. The south headgate is situated at the
southern edge of the dam and controls the release of water to a
ditch system which transports water to Dallaserras’ pump site.
Water released from the south headgate is not available to Sitz at
Sitz’s pump site during the irrigation season but has historically
3 supplied stockwater to Sitz’s property in the fall and winter.
Water released from the south headgate bypasses the water
distribution and measuring device, known as a “Splitter Box,” which
is situated in the ditch conveying irrigation water from the north
headgate.
¶13 The Blomquist Reservoir is situated on the property currently
owned by Dallaserras. The Blomquist Spring and Blomquist Reservoir
were part of a large system used to benefit the property originally
owned by Mr. Blomquist, and the reservoir was required in order to
control and convey the water derived from Blomquist Spring. ¶14 Mr. Blomquist first conveyed a portion of his property by a
deed dated April 15, 1955, conveying to his son and daughter-in-
law, Emmett and Voris C. Blomquist (Voris), an undivided one-
quarter interest in the spring and reservoir along with an
unqualified easement across his land for the purpose of conveying
water to the land of Emmett and Voris.
¶15 In May 1955, Emmett purchased from his brother 80 additional
acres of property that was also previously owned by his father.
According to Emmett, the property purchased from his brother
contained the water rights from Willow Creek, which Emmett then
traded to his father in exchange for a greater share of the right
to the water from Blomquist Spring. Water from Willow Creek also
feeds into the Blomquist Reservoir. A deed transferring the Willow
Creek water rights from Emmett to his father was executed in 1958.
No similar deed, however, was executed to transfer additional
4 spring rights from Mr. Blomquist to Emmett. It is this property,
formerly owned by Emmett and Voris, that is now owned by Sitz.
¶16 In 1961, Mr. Blomquist transferred his remaining property to
Don T. McCandless and T.M. McCandless (McCandlesses), along with
“[a]ll water and water rights, ditches and ditch rights thereunto
belonging or in any ways appertaining, including but not limited to
the right to use 500 inches of water of that certain unnamed spring
the notice of appropriation of which is recorded in Book 73 of
Water Rights, at page 351, official records of Beaverhead County,
Montana . . . .” ¶17 In 1974, Emmett, Voris, and the McCandlesses executed and
recorded an instrument entitled “Correction Conveyance of Water
Right.” Sitz and Dallaserras agree that this instrument was
completed by their predecessors, but disagree on the effect the
instrument had on the legal interests of each party to the
Blomquist Reservoir. The Correction Conveyance described the
Blomquist and McCandless interest as follows:
That T.M. McCandless and Verla McCandless are the owners
of a two-thirds (2/3) interest, and that Emmett E.
Blomquist and Voris C. Blomquist are the owners of a one-
third (1/3) interest in and to that certain unnamed
spring and the waters derived therefrom, together with
all rights applicable thereto . . . .
At trial, Emmett, a party to the correction instrument, testified
that the intention of the parties was to split the waters derived
from Blomquist Spring on a one-third/two-third basis.
5 ¶18 In 1983, Emmett and Voris sold their property to Mallon Ranch
Company under a contract for deed. This transfer included all
water and water rights, ditches and ditch rights appurtenant to the
real property including, but not limited to, one-third of the flow
of the “Big Spring” and “all tenements, hereditaments, and
appurtenances thereto belonging or in anywise appertaining.”
¶19 In June 1997, Sitz purchased the property from the Mallon
Ranch Company. The “Assumption Agreement” by Sitz and Mallon
contained identical language regarding water rights and
appurtenances. Based on previous claims and conveyances,
Dallaserras agree that Sitz is entitled to one-third of the flow of
Blomquist Spring for Sitz’s property and that Dallaserras are
entitled to the remaining two-thirds flow of Blomquist Spring for
use on their own property. Sitz and Dallaserras are also in
agreement that Dallaserras are entitled to all of the “Willow
Creek” water for use on Dallaserras’ land. They disagree, however,
on whether Sitz is entitled to use Blomquist Reservoir to store
Sitz’s share of water generated from Blomquist Spring. As a result
of the dispute over ownership of storage water in Blomquist
Reservoir and a dispute over Sitz accessing the north headgate over
Dallaserras’ land for the purpose of adjusting the amount of water
released by the north headgate into the north ditch, Dallaserras
placed a lock on the north headgate and blocked access across their
land from the highway. Dallaserras’ actions led to Sitz filing its
complaint in June 1999.
6 ¶20 Sitz sought from the District Court a declaratory judgment
determining that it owns a one-third interest in the direct flow
from Blomquist Spring and that it additionally has a right to any
of its one-third interest that may be stored in Blomquist
Reservoir. Sitz also sought damages and injunctive relief against
Dallaserras for alleged interference with Sitz’s primary and
secondary ditch easements and for Dallaserras’ alleged interference
with Sitz’s use of the water by locking the north headgate and
blocking access across their land. Finally, Sitz requested that
the District Court order Dallaserras to install measuring devices
and to remedy a defective condition of the Splitter Box. ¶21 After a bench trial, the District Court entered findings of
fact and conclusions of law and concluded that Sitz was entitled to
a one-third interest in the water derived or generated from
Blomquist Spring. The District Court concluded that Sitz was
entitled to a one-third interest in and to Blomquist Reservoir to
store and convey its interest in water derived or generated from
Blomquist Spring. The District Court further concluded that Sitz’s
interest included primary and secondary easements for the
conveyance of the water and for access to all conveyance works
across Dallaserras’ property consistent with previous owners’
historic access.
¶22 In its judgment the District Court permanently enjoined
Dallaserras from locking headgates, access gates, and from moving
or interfering with the distribution works and enjoined Dallaserras
7 from any further activities interfering with Sitz’s rights to
peaceably enjoy its interest.
¶23 In its findings and conclusions, the District Court also
ordered Dallaserras to repair and replace the Splitter Box and
ordered the parties to develop an equitable and workable plan to
distribute to each party their respective one-third two-third
interest, splitting costs between Sitz and Dallaserras according to
ownership interest. Finally, the District Court ordered that each
party bear their own respective costs and attorney fees. ¶24 Dallaserras now appeal. Sitz cross-appeals the District
Court’s denial of its request for costs and reasonable attorney
fees as the prevailing party.
DISCUSSION
¶25 1. Did the District Court exceed its jurisdiction when granting declaratory relief pertaining to water rights in Blomquist Spring and water storage rights in Blomquist Reservoir?
¶26 Dallaserras contend that the District Court’s declaratory
ruling that Sitz owned a one-third interest in the water from
Blomquist Spring and a one-third interest to store the water in
Blomquist Reservoir is a de facto adjudication of water rights
which lies exclusively within the jurisdiction of the Montana Water
Court. Dallaserras argue that, because the water court had issued
no previous decrees regarding water rights to Blomquist Spring or
Blomquist Reservoir, the District Court did not have jurisdiction
to issue an injunction or clarify entitlements based upon any
former decree of water rights.
8 ¶27 Sitz first responds that its one-third ownership interest in
the water from Blomquist Spring was admitted by Dallaserras in
their Answer, stipulated to as a judicial admission in the pretrial
order, and recognized at trial. Sitz contends that the inclusion
of this fact in the District Court’s findings of fact is nothing
more than a recognition, rather than an adjudication, by the
District Court of agreed upon water rights in Blomquist Spring.
¶28 Second, Sitz responds that the District Court’s declaration of
interests in Blomquist Reservoir was a declaration of property
rights, wholly apart and separate from a declaration or
adjudication of water rights. Sitz argues that such a declaration
of property rights in Blomquist Reservoir consisted of an
adjudication of easement and ownership interests in the conveyance
system developed by Sitz’s and Dallaserras’ predecessors, and
consisted of and required no adjudication of priority dates,
established flow rates, points of diversion, places of use, acres
irrigated, nor any other elements or parameters of the rights as
would be adjudicated by the Water Court. ¶29 Dallaserras rely on this Court’s decision in State ex rel.
Jones v. District Court (1997), 283 Mont. 1, 938 P.2d 1312. In
Jones, the four district court judges of the Fourth Judicial
District ordered that a 1902 decree, that decreed 27 water rights
on Carlton Creek, be updated. The judges were concerned about the
deteriorating physical state of the 1902 decree in conjunction with
the fact that it would be necessary for the water commissioners, as
9 well as the public, to handle the decree. Jones, 283 Mont. at 3-4,
938 P.2d at 1314-15.
¶30 The Montana Water Court, however, was also in the process of
adjudicating the rights to Carlton Creek, which included 92 claims
for Carlton Creek waters. Had the Updated Decree been allowed to
stand, it would have controlled the determination and
administration of water rights on Carlton Creek.
¶31 The order authorizing the updated decree provided in part:
Finding of Fact 3 – To remedy this situation the 1902 decree should be reworked and expanded to include additional information such as the land description of the place of use, any subsequent court order defining a decreed right, the judicial knowledge of the court relating to present use of water, and information regarding ditches, lake storage water or any other information that is necessary for a water commissioner to have to properly perform his duty. Order number 4 – That the updated decree shall supercede [sic] all prior pleadings in this action relating to the matters contained in the updated Decree.
Jones, 283 Mont. at 6, 938 P.2d at 1315-16.
¶32 The resulting Updated Decree decreed “the ownership, priority
date, flow rate, place of use and means of diversion of the various
rights.” Jones, 283 Mont. at 6, 938 P.2d at 1316. It thus
constituted a de facto adjudication of water rights, as an
adjudication of said elements are within the exclusive jurisdiction
of the Water Court. Jones, 283 Mont. at 6, 938 P.2d at 1316. We
thus held that, pursuant to § 85-2-234(6), MCA, the district court
exceeded its jurisdiction. “[W]hile a district court may grant
injunctive or other relief which is necessary and appropriate to
preserve property rights or the status quo pending issuance of a
10 final decree, the district court lacks jurisdiction to issue a
final decree with regard to the water right.” Jones, 283 Mont. at
7, 938 P.2d at 1316.
¶33 We agree with Sitz that Jones is not applicable to the present
situation. As noted by Sitz, the pretrial order reflects an
agreement between Sitz and Dallaserras that Sitz was entitled to
one-third of the flow of Blomquist Spring. Likewise, in opening
statement at trial, counsel for Dallaserras stated:
One, Sitzes have asked this Court to declare that they’re entitled to one-third of the flow from the spring. We have no objection to that. We agree with that. Secondly, Sitz is asking this Court to declare that they’re entitled to store in the reservoir one-third of their water if they wish. And we do object to that . . . . ¶34 The District Court’s declaration that Sitz owns one-third and
Dallaserras own two-thirds interest in Blomquist Spring was not an
adjudication of water rights, but merely a recognition that the
parties presented no question of fact regarding ownership of such
water rights based upon previous use and conveyances.
¶35 Further, this Court has previously held that water rights and
property rights, such as ditch rights, are entirely bifurcated and
thus separate from one another. See Mildenberger v. Galbraith
(1991), 249 Mont. 161, 166, 815 P.2d 130, 134 (citation omitted);
also see Smith v. Krutar (1969), 153 Mont. 325, 331, 457 P.2d 459,
462 (concluding that a water right and a ditch right may exist as
separate and independent species of property).
¶36 The determination that Sitz owned a one-third interest in
Blomquist Reservoir in no way adjudicated existing water rights.
11 As the District Court ably noted, this was not a water rights case,
but a secondary easement case dealing with, among other issues,
Sitz’s interest to store and convey water through and across
Dallaserras’ property via Blomquist Reservoir, which, it
determined, was an appurtenance to the Sitz property. Notably, the
District Court did not adjudicate priority dates, establish flow
rates, points of diversion, places of use, acres irrigated, nor any
other elements or parameters of each parties’ water rights.
Rather, its determination that Sitz owned a one-third interest in
Blomquist Reservoir was an adjudication of easement and ownership
interests in the conveyance system. Such adjudication of property
rights is properly within the jurisdiction of the District Court. ¶37 We hold, therefore, that the District Court did not exceed its
jurisdiction. Its decision is affirmed accordingly.
¶38 2. Did the District Court err by denying Appellants’ post- judgment motion to certify the parties’ underlying water rights claims to the Montana Water Court?
¶39 Dallaserras contend that, as the District Court has no
jurisdiction over water rights, it erred in denying Dallaserras’
post-judgment motion for certification of the parties’ claims to
the Montana Water Court. However, as we have already concluded
that the District Court did not exercise authority outside its
jurisdiction, as it did not adjudicate elements of either parties’
water rights claims, we likewise conclude that the District Court
did not err in denying Dallaserras’ post-judgment motion for
certification to the Water Court.
¶40 The denial of Dallaserras’ post-judgment motion is affirmed.
12 ¶41 3. Did the District Court err in denying Appellants’ motion to amend the judgment to conform to the findings of fact and conclusions of law entered by the District Court?
¶42 The standard of review of discretionary trial court rulings is
abuse of discretion. Harwood v. Glacier Electric Co-op, Inc.
(1997), 285 Mont. 481, 492, 949 P.2d 651, 658 (citation omitted).
Discretionary trial court rulings include trial administration
issues and post-trial motions. Harwood, 285 Mont. at 492, 949 P.2d
at 658.
¶43 Dallaserras contend that the judgment entered by the District
Court addressed a number of issues which were not addressed in the
court’s findings of fact and conclusions of law, including the
granting of injunctive relief, the requirement for Dallaserras to
move the Splitter Box at their sole cost, the specific definition
of Sitz’s secondary ditch easement, and the finding that
Dallaserras interfered with Sitz’s easement. Dallaserras thus
argue that the judgment is not supported by the findings of fact
and requests that this Court remand to the District Court for entry
of judgment consistent with its findings.
¶44 Sitz responds that the District Court’s relief was within its
equitable authority, that the judgment was grounded upon the
evidence presented at trial and properly based on the court’s
findings, conclusions, and memorandum. Sitz prepared the judgment
at the direction of the District Court and submitted a copy to
Dallaserras for comment. After nearly two weeks, Sitz received no
comment from Dallaserras and submitted the judgment to the District
Court for consideration.
13 ¶45 This Court has previously stated that:
[F]indings of fact and conclusions of law are not the judgment, but merely the foundation for the judgment. This foundation need not consist of a multitude of evidentiary facts, but must be comprised of ultimate facts. In other words, the findings of fact required by Rule 52(a) is nothing more than a recordation of the essential and determining facts upon which the District Court rested its conclusions of law and without which the District Court’s judgment would lack support.
Wareing v. Schreckendgust (1996), 280 Mont. 196, 207, 930 P.2d 37, 44 (citation omitted).
¶46 While the findings of fact, conclusions of law and memorandum
of the District Court do not directly address the granting of
injunctive relief to Sitz, the District Court included in the
findings the ultimate fact that Dallaserras’ control of the
distribution system of Blomquist Reservoir “has deprived and is
depriving Sitz” the full use of its one-third interest in the water
from Blomquist Spring. This finding is sufficient to support the
injunctive relief in the judgment, and additionally supports
inclusion in the judgment that the actions of Dallaserras
interfered with Sitz’s peaceful enjoyment associated with its one-
third interest. ¶47 Likewise, the above findings, in addition to the District
Court’s finding that Blomquist Reservoir is an appurtenance to the
respective properties, supports the inclusion of the specific
definition of Sitz’s secondary ditch easement in the court’s
judgment.
¶48 We do agree with Dallaserras that the judgment is
inconsistent with the District Court’s findings of fact and
conclusions of law wherein the judgment orders that Dallaserras
14 shall bear all costs associated with repairing and replacing the
Splitter Box in a manner which results in an accurate and reliable
distribution of water according to each parties’ interest. The
District Court specifically states in finding # 11:
The Court finds that any cost necessary to implement a practical distribution plan should be borne by the parties, 2/3-1/3. If a water master or commissioner is necessary, they should likewise share that cost.
¶49 The judgment, in paragraph 6, thus erroneously requires
Dallaserras to bear all costs associated with repairing and
replacing the Splitter Box. We hold, therefore, that the District
Court erred in ordering that Dallaserras bear all costs associated
with repairing and replacing the Splitter Box. This portion of the
judgment is reversed and remanded accordingly. Upon remand, the
District Court shall amend the judgment to reflect that the parties
shall share costs according to their respective interests. ¶50 The decision of the District Court in denying Dallaserras’
motion is otherwise affirmed.
¶51 4. Did the District Court err in denying Appellants’ motion
for a new trial?
¶52 Dallaserras contend that a prejudicial irregularity occurred
during trial that prevented them from receiving a fair trial.
According to an affidavit submitted by Dallaserras, the judge fell
asleep during trial, missing all or portions of the testimony of
Larry Lee Mallon (Mallon). Dallaserras argue that, as the judge
did not avail himself of the opportunity to listen to Mallon’s
testimony or observe his demeanor, the court was in no position to
issue findings in this matter.
15 ¶53 Dallaserras rely on this Court’s holding in Worden v.
Alexander (1939), 108 Mont. 208, 90 P.2d 160, 161-62, wherein we
stated:
It has been held by this court that where a motion for a new trial is heard by a judge who did not try the case, such judge, not having seen the witnesses or heard their testimony and observed their demeanor on the stand, was compelled to gain his knowledge of the case from the record alone, and was therefore in no better position to determine the motion than is this court, and hence his order does not carry with it the presumption usually indulged in favor of such order.
¶54 Sitz responds that Dallaserras did not suffer prejudice as
Mallon’s testimony did not support any of Dallaserras’ assertions,
but rather, buttressed Sitz’s assertions in its complaint.
Further, Sitz argues that even without Mallon’s testimony, the
District Court received numerous documentary exhibits and the
testimony of other witnesses, particularly the testimony of the
former owner of the Sitz property, Emmett Blomquist. ¶55 We agree with Sitz and find Dallaserras’ reliance on Worden
unpersuasive. This Court’s holding in Worden broadly refers to a
situation in which a trial judge has not had the benefit of
listening to or observing any trial witnesses, and was thus in no
better position than this Court to review a transcript and grant or
deny a motion for a new trial. That is not the case presently
before this Court.
¶56 In the present situation, it is not alleged that the trial
judge did not listen to or observe the other seven witnesses who
testified at trial. Prejudice thus cannot be presumed. Rather, a
review of the transcript is necessary and helpful. The transcript
16 reveals that Larry Mallon testified that he was familiar with the
irrigation practices on both the Dallaserras and the Sitz
properties. Mallon testified that some of his irrigation water
probably flowed from water stored in the Blomquist Reservoir, that
he participated in maintenance of the channels, spring and the
reservoir and paid for any maintenance according to his one-third
interest. He further testified that he commonly accessed the
Splitter Box and pump site location by crossing over the
Dallaserras property from the Highway 91 North access point.
Mallon also testified, based on what he had been told by Emmett,
that he believed his one-third interest included the right to store
water in the reservoir and that he would access the reservoir if he
knew there was some water in it that he could use. ¶57 We note that the substance of Larry Mallon’s testimony lends
support to Sitz’s allegations and offers nothing to substantiate
Dallaserras’ assertions. As a result of our review of the entire
transcript, we conclude that, even without Mallon’s testimony, the
District Court’s findings of fact are supported by substantial
evidence, particularly the testimony of the former owner of the
Sitz property, Emmett.
¶58 This Court reviews the findings of a district court sitting
without a jury to determine if the court’s findings are clearly
erroneous. See Rule 52(a), M.R.Civ.P. A district court’s findings
are clearly erroneous if substantial credible evidence does not
support them, if the trial court has misapprehended the effect of
the evidence or if a review of the record leaves this Court with
17 the definite and firm conviction that a mistake has been committed.
Ray v. Nansel, 2002 MT 191, ¶ 19, 311 Mont. 135, ¶ 19, 53 P.3d
870, ¶ 19 (citation omitted).
¶59 As the District Court’s findings are supported by substantial
evidence, apart from Mallon’s testimony, we conclude that its
findings are not clearly erroneous and that Dallaserras did not
suffer prejudice even in the event that the trial judge may have
missed all or part of Mallon’s testimony.
¶60 5. Did the District Court err in denying the Respondent/Cross-Appellant an award of costs and attorney fees pursuant to § 70-17-112, MCA?
¶61 In its July 2000, order, the District Court found that
“Dallaserras’ control of the distribution system of the reservoir
water both from the spring and Willow Creek, has deprived and is
depriving Sitz” of the full use of what Dallaserras admit is a one-
third right to the water originating from Blomquist Spring.
¶62 In its attached Memorandum, the District Court stated:
“Although downright arrogant and unneighborly, the Court gives them
the benefit of the doubt as to what they perceived to be a good
faith position. Thus in the Court’s discretion, no costs or
attorney fees are imposed. Further interference to a secondary
easement right would surely justify such sanctions.”
¶63 Sitz contends that it is the prevailing party in this action
and, as the prevailing party, is entitled to costs and attorney
fees pursuant to § 70-17-112(5), MCA. Said section provides:
If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney’s fees.
18 Sitz brought this action, in part, pursuant to § 70-17-112(1), MCA,
which provides:
A person with a canal or ditch easement has a secondary easement to enter, inspect, repair, and maintain a canal or ditch.
In this action, Sitz pled interference with its easement interests
in Blomquist Reservoir, the attendant ditch, distribution system,
and interference by Dallaserras of Sitz’s secondary easements to
access said interests.
¶64 Sitz obtained a ruling enforcing subsection (1), guaranteeing
a secondary easement and preventing Dallaserras from encroaching or
impairing said easement. As Sitz is the prevailing party in this
action, pursuant to subsection (5), Sitz is also entitled to
receive costs and reasonable attorney fees. Accordingly, as Sitz
successfully enforced subsection (1), the District Court, pursuant
to subsection (5), retained no discretion to deny costs and
reasonable attorney fees. Said costs and attorney fees include
those incurred by Sitz herein on appeal. See Kephart v. Portmann
(1993), 259 Mont. 232, 239, 855 P.2d 120, 124 (citing Sharon v.
Hayden (1990), 246 Mont. 186, 189, 803 P.2d 1083, 1085). ¶65 We hold that Sitz, as the prevailing party, is entitled to
costs and reasonable attorney fees pursuant to § 70-17-112(5), MCA.
We reverse and remand accordingly.
¶66 Affirmed in part, reversed in part, and remanded.
/S/ JIM RICE
We concur:
19 /S/ JAMES C. NELSON /S/ TERRY N. TRIEWEILER /S/ W. WILLIAM LEAPHART /S/ JIM REGNIER