Roland v. Davis, 2013 MT 148 (June 4, 2013) (5-0) (Morris, J.)
Issue: Whether the district court properly determined that Roland had no ditch easement across property owned by Davis.
Short Answer: Yes.
Facts: Roland bought a 50-acre parcel from Russ in 1993. The warranty deed does not mention water rights, ditch easements, or appurtenances. Roland nevertheless believed a water right from Bunkhouse Creek came with the property, and that a ditch easement existed to carry water from the creek to his property. The parties completed and filed a water right transfer certificate as part of the closing documents.
Davis bought property adjacent to Rolands’ property in 1994. The Smith Ditch historically crossed the Davis property. No ditches were observable on the Davis property in 1994, and no water rights from Bunkhouse Creek attached to the Davis property.
The Montana Water Court’s adjudication of the Bitterroot River Basin included a place-of-use finding of 20 acres of Roland’s property in 2004. Thereafter, Roland attempted to reopen the Smith Ditch. Eventually, Roland sued Davis and Davis counterclaimed to quiet title. Each party presented expert testimony regarding the presence of the ditch.
Procedural Posture & Holding: After trial, the district court found that the Smith Ditch could be restored with a few days’ work. It found that a 1957 field note from the Water Resources Survey represents the last evidence of use of the ditch for irrigation. It found that the access road across Davis’s property, constructed before 1979 by Davis’s predecessor in interest, halted use of the Smith Ditch as a conveyance of irrigation water from Bunkhouse Creek to Roland’s parcel. Finally, it found that Roland’s predecessor in interest abandoned the Smith Ditch before 1979. It held that Roland retains no ditch easement across Davis’s property. Roland appeals, and the Supreme Court affirms.
Reasoning: The Court agrees that any water rights associated with the 50-acre parcel passed to Roland when he bought the property. But ditch easements and water rights are distinct property rights. One may own one without the other. The deed did not contain and express easement, and Roland fails to establish an implied easement. He did not establish apparent and continuous use of the Smith Ditch easement at the time he bought the property in 1993.