No. 01-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 15N
ROBIN STREET,
Plaintiff and Respondent,
v.
BENNY F. ZABLOTNEY and CLIFTON ZABLOTNEY,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, Cause No. DV-97-474(A) The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Katherine P. Maxwell, Johnson, Berg, McEvoy & Bostock, Kalispell, Montana
For Respondent:
Kenneth E. O’Brien, Hash & O’Brien, Kalispell, Montana
Submitted on Briefs: January 10, 2002
Decided: February 11, 2003 Filed:
__________________________________________ Clerk Justice James C. Nelson 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 Robin Street (Street) brought this action in the District Court for the Eleventh Judicial
District, Flathead County, to recover damages for the diversion of the Whitefish River near
his property. The District Court found in favor of Street concluding that Benny Zablotney
and his son, Clifton Zablotney, (the Zablotneys) took actions in the Whitefish River that
changed its course and thereby damaged Street. From this judgment, the Zablotneys appeal.
We affirm.
¶3 The Zablotneys raise the following issue on appeal: Did the District Court err in
determining that the Zablotneys diverted the main channel of the Whitefish River thereby
damaging Street's downstream pump site?
Factual and Procedural Background
¶4 Street and the Zablotneys each own parcels of real property located on opposite sides
of the Whitefish River. The boundary between the Zablotneys' property and Street's property
is the "main channel" of the Whitefish River. The Whitefish River is an "E4-type stream"
which means that it is highly sinuous, fairly narrow and deep, has a low slope, and is not
2 confined in that it spreads out over a wide area of a floodplain. The river has three channels
in the area near the Zablotney and Street properties, which the District Court referred to as
the east channel, the central channel and the west channel.
¶5 An island exists between the east and central channels. Across the southern part of the
island is a fence marking the boundary with the land owned by a neighbor, Mr. Olsen. The
Olsen property is to the south of both the Zablotney and Street properties. Ownership of the
part of the island north of the fence depends on how one defines the main channel of the
river. If it is assumed that the east channel of the river is the main channel, then the part of
the island north of the fence belongs to Street. If it is assumed that the central channel of the
river is the main channel, then the part of the island north of the fence belongs to the
Zablotneys. At trial, the District Court presumed that the main channel is the channel
carrying more than 50% of the water in the river, which, when measurements were taken in
1998, was the central channel.
¶6 In September 1996, Street observed that several logs had been placed in the river
across the east channel and that the banks of the west and central channels had been cut away
with a shovel. Street reported his observations to the Flathead County Conservation District
who contacted the Zablotneys and requested that they remove the logs. Clifton Zablotney did
so on September 30, 1996.
¶7 Street also applied to the conservation district for a permit to remedy the problems he
alleged were caused by the dam. Street proposed that the situation could only be remedied
by blocking off the central and west channels of the river with 150 yards of "rip rap" or rock.
3 Based on Street's representations, the conservation district issued him a permit to perform
the work prior to high water in 1997, but the work was not done. The permit expired once
high water occurred in May and June 1997. On July 30, 1997, the conservation district
performed an inspection of the river. Following this inspection, no further permits were
issued by the conservation district for work on the channels.
¶8 On August 25, 1997, Street filed a complaint alleging that the Zablotneys placed a
dam of logs, gravel and sand across the main channel of the river in an attempt to divert the
primary flow of the river through an overflow channel located on Street's property thereby
damaging Street's downstream pump site. Street also alleged that the Zablotneys cut away
the bank of the overflow channel to enhance the flow of water over Street's land. Street
sought damages for repairing the area around his pump site as well as the river channels
themselves. He also requested that the damages be trebled because the Zablotneys' actions
constituted a trespass.
¶9 A non-jury trial was conducted on October 23 and 24, 2000, wherein the District
Court heard testimony from each party's expert witness as well as the parties themselves. On
March 1, 2001, the District Court issued its Findings of Fact, Conclusions of Law and
Judgment wherein the court concluded that Street was entitled to judgment against the
Zablotneys for $4,930 for the cost of the repairs to his pump site. The court also concluded
that Street was entitled to judgment against the Zablotneys for damages in the sum of
$52,000 for the cost of redirecting the river to its original main channel and repairing and
restoring the river channels to their pre-1996 condition.
4 ¶10 The court did not award Street treble damages for trespass under § 70-16-108, MCA,
because there was no evidence of wrongful injuries to, or removal of, timber, trees, or
underwood upon Street's land. Nor did the court award Street punitive damages as not all of
the elements of a claim for punitive damages were proved by clear and convincing evidence
as required by § 27-1-221, MCA.
¶11 The Zablotneys appeal the District Court's judgment.
Discussion
¶12 Did the District Court err in determining that the Zablotneys diverted the main channel of the Whitefish River thereby damaging Street's downstream pump site?
¶13 The Zablotneys contend that the District Court erred in finding that the main channel
of the river changed as a result of actions taken by the Zablotneys in 1995 and 1996. They
maintain that the central channel had become, or was becoming, the main channel through a
natural process of change in river morphology. The Zablotneys also contend that the District
Court erred in finding that erosion around Street's pump site resulted from their actions.
¶14 This Court reviews the findings of a trial court sitting without a jury to determine if
the court's findings are clearly erroneous. Guthrie v. Hardy, 2001 MT 122, ¶ 24, 305 Mont.
367, ¶ 24, 28 P.3d 467, ¶ 24 (citing Rule 52(a), M.R.Civ.P.). A district court's findings are
clearly erroneous if they are not supported by substantial credible evidence, if the trial court
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No. 01-344
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 15N
ROBIN STREET,
Plaintiff and Respondent,
v.
BENNY F. ZABLOTNEY and CLIFTON ZABLOTNEY,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, Cause No. DV-97-474(A) The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Katherine P. Maxwell, Johnson, Berg, McEvoy & Bostock, Kalispell, Montana
For Respondent:
Kenneth E. O’Brien, Hash & O’Brien, Kalispell, Montana
Submitted on Briefs: January 10, 2002
Decided: February 11, 2003 Filed:
__________________________________________ Clerk Justice James C. Nelson 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 Robin Street (Street) brought this action in the District Court for the Eleventh Judicial
District, Flathead County, to recover damages for the diversion of the Whitefish River near
his property. The District Court found in favor of Street concluding that Benny Zablotney
and his son, Clifton Zablotney, (the Zablotneys) took actions in the Whitefish River that
changed its course and thereby damaged Street. From this judgment, the Zablotneys appeal.
We affirm.
¶3 The Zablotneys raise the following issue on appeal: Did the District Court err in
determining that the Zablotneys diverted the main channel of the Whitefish River thereby
damaging Street's downstream pump site?
Factual and Procedural Background
¶4 Street and the Zablotneys each own parcels of real property located on opposite sides
of the Whitefish River. The boundary between the Zablotneys' property and Street's property
is the "main channel" of the Whitefish River. The Whitefish River is an "E4-type stream"
which means that it is highly sinuous, fairly narrow and deep, has a low slope, and is not
2 confined in that it spreads out over a wide area of a floodplain. The river has three channels
in the area near the Zablotney and Street properties, which the District Court referred to as
the east channel, the central channel and the west channel.
¶5 An island exists between the east and central channels. Across the southern part of the
island is a fence marking the boundary with the land owned by a neighbor, Mr. Olsen. The
Olsen property is to the south of both the Zablotney and Street properties. Ownership of the
part of the island north of the fence depends on how one defines the main channel of the
river. If it is assumed that the east channel of the river is the main channel, then the part of
the island north of the fence belongs to Street. If it is assumed that the central channel of the
river is the main channel, then the part of the island north of the fence belongs to the
Zablotneys. At trial, the District Court presumed that the main channel is the channel
carrying more than 50% of the water in the river, which, when measurements were taken in
1998, was the central channel.
¶6 In September 1996, Street observed that several logs had been placed in the river
across the east channel and that the banks of the west and central channels had been cut away
with a shovel. Street reported his observations to the Flathead County Conservation District
who contacted the Zablotneys and requested that they remove the logs. Clifton Zablotney did
so on September 30, 1996.
¶7 Street also applied to the conservation district for a permit to remedy the problems he
alleged were caused by the dam. Street proposed that the situation could only be remedied
by blocking off the central and west channels of the river with 150 yards of "rip rap" or rock.
3 Based on Street's representations, the conservation district issued him a permit to perform
the work prior to high water in 1997, but the work was not done. The permit expired once
high water occurred in May and June 1997. On July 30, 1997, the conservation district
performed an inspection of the river. Following this inspection, no further permits were
issued by the conservation district for work on the channels.
¶8 On August 25, 1997, Street filed a complaint alleging that the Zablotneys placed a
dam of logs, gravel and sand across the main channel of the river in an attempt to divert the
primary flow of the river through an overflow channel located on Street's property thereby
damaging Street's downstream pump site. Street also alleged that the Zablotneys cut away
the bank of the overflow channel to enhance the flow of water over Street's land. Street
sought damages for repairing the area around his pump site as well as the river channels
themselves. He also requested that the damages be trebled because the Zablotneys' actions
constituted a trespass.
¶9 A non-jury trial was conducted on October 23 and 24, 2000, wherein the District
Court heard testimony from each party's expert witness as well as the parties themselves. On
March 1, 2001, the District Court issued its Findings of Fact, Conclusions of Law and
Judgment wherein the court concluded that Street was entitled to judgment against the
Zablotneys for $4,930 for the cost of the repairs to his pump site. The court also concluded
that Street was entitled to judgment against the Zablotneys for damages in the sum of
$52,000 for the cost of redirecting the river to its original main channel and repairing and
restoring the river channels to their pre-1996 condition.
4 ¶10 The court did not award Street treble damages for trespass under § 70-16-108, MCA,
because there was no evidence of wrongful injuries to, or removal of, timber, trees, or
underwood upon Street's land. Nor did the court award Street punitive damages as not all of
the elements of a claim for punitive damages were proved by clear and convincing evidence
as required by § 27-1-221, MCA.
¶11 The Zablotneys appeal the District Court's judgment.
Discussion
¶12 Did the District Court err in determining that the Zablotneys diverted the main channel of the Whitefish River thereby damaging Street's downstream pump site?
¶13 The Zablotneys contend that the District Court erred in finding that the main channel
of the river changed as a result of actions taken by the Zablotneys in 1995 and 1996. They
maintain that the central channel had become, or was becoming, the main channel through a
natural process of change in river morphology. The Zablotneys also contend that the District
Court erred in finding that erosion around Street's pump site resulted from their actions.
¶14 This Court reviews the findings of a trial court sitting without a jury to determine if
the court's findings are clearly erroneous. Guthrie v. Hardy, 2001 MT 122, ¶ 24, 305 Mont.
367, ¶ 24, 28 P.3d 467, ¶ 24 (citing Rule 52(a), M.R.Civ.P.). A district court's findings are
clearly erroneous if they are not supported by substantial credible evidence, if the trial court
has misapprehended the effect of the evidence, or if a review of the record leaves this Court
with the definite and firm conviction that a mistake has been committed. Guthrie, ¶ 24
(citing Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont. 116, ¶ 31, 993 P.2d 701, ¶ 31).
5 Substantial evidence "consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance." Tungsten Holdings, Inc. v. Olson, 2002 MT 158,
¶ 13, 310 Mont. 374, ¶ 13, 50 P.3d 1086, ¶13 (quoting Wunderlich v. Lumbermens Mut. Cas.
Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566). Additionally, in determining whether
the trial court's findings are supported by substantial credible evidence, this Court must view
the evidence in the light most favorable to the prevailing party. Guthrie, ¶ 24 (citation
omitted).
¶15 The Zablotneys specifically object to 21 of the District Court's 26 findings of fact. In
doing so, they point out information in the record which they allege contradicts the District
Court's findings. However, in response to each of the Zablotneys' objections, Street points to
evidence and testimony in the record that supports the court's findings.
¶16 We review a district court's findings to determine whether substantial evidence
supports those findings, not, as Zablotneys suggest, whether evidence exists to support
contrary findings. Rafanelli v. Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248 (citations
omitted). After an extensive review of the record in this case and viewing the evidence in the
light most favorable to Street as the prevailing party, as we are constrained to do, see
Guthrie, ¶ 24, we hold that the District Court's findings are supported by substantial
evidence. Accordingly, we hold that the District Court did not err in determining that the
Zablotneys’ actions diverted the main channel of the Whitefish River and thereby damaged
Street's pump site.
¶17 Affirmed.
6 /S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER /S/ JIM REGNIER /S/ W. WILLIAM LEAPHART /S/ JIM RICE