author: MR. JUSTICE MORRISON MR. CHIEF JUSTICE TURNAGE, MR. JUSTICE GULBRANDSON, MR. JUSTICE HUNT, MR. JUSTICE SHEEHY,

text:
    JACK E. GALT, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, acting By and Through the DEPARTMENT OF FISH, WILDLIFE AND PARKS, Defendant and Respondent.
    No. 86-178.
    Submitted Oct. 21, 1986.
    Decided Jan. 15, 1987.
    731 P.2d 912.

      Philip W. Strope argued, Helena, for plaintiffs and appellants.
    Stan Bradshaw, Dept. Fish, Wildlife and Parks, Helena, Poore, Roth & Robinson; Urban L. Roth argued, Butte, for defendant and respondent.
    Charles F. Moses argued for Directors of T-Bone Cattlewomens Assoc., et al., Billings, for amicus curiae.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiffs appeal the order of the First Judicial District Court granting summary judgment in favor of the defendant, State of Montana. We reverse.

In 1984, this Court decided the twin cases of Montana Coalition for Stream Access, Inc. v. Curran (Mont. 1984), [210 Mont. 38,] 682 P.2d 163, 41 St.Rep. 906, and Montana Coalition for Stream Access, Inc. v. Hildreth (Mont. 1984), [211 Mont. 29,] 684 P.2d 1088, 41 St.Rep. 1192. In Curran, we held that under the public trust doctrine as derived from the Montana Constitution the public has a right to use any surface waters capable of use for recreational purposes up to the high water marks and may portage around barriers in the water in the least intrusive manner possible. This holding was reaffirmed in Hildreth.

In response to these two decisions, the legislature enacted Section 23-2-301, et seq., MCA, addressing the recreational use of streams. Appellants, plaintiffs below, brought this action for declaratory relief pursuant to the Uniform Declaratory Judgment Act, Section 27-8-101 through 27-8-313, MCA, requesting the District Court to declare Section 23-2-301, et seq., MCA, unconstitutional as a taking of private property without just compensation. The District Court upheld the constitutionality of the statutes and awarded summary judgment in favor of the State.

Addressing the constitutionality of Sections 23-2-301 et seq., MCA, on appeal we frame the issues as follows:

1) Whether the public trust doctrine relating to water includes the use of adjoining land?

2) Whether Sections 23-2-301, et seq., MCA, permit uses of the bed and banks and adjoining land beyond the scope of the public trust doctrine?

Appellants challenge the following sections as unconstitutional:

“23-2-301. Definitions. For purposes of this part, the following definitions apply:
“(2) ‘Class I waters’ means surface waters, other than lakes, that:
“(a) lie within the officially recorded federal government survey meander lines thereof;
“(b) flow over lands that have been judicially determined to be owned by the state by reason of application of the federal navigability test for state streambed ownership;
“(c) are or have been capable of supporting the following commercial activities: log floating, transportation of furs and skins, shipping, commercial guiding using multiperson watercraft, public transportation, or the transportation of merchandise, as these activities have been defined by published judicial opinion as of April 19, 1985; or “(d) are or have been capable of supporting commercial activity within the meaning of the federal navigability test for state streambed ownership
“(3) ‘Class II waters’ means all surface waters that are not class I waters, except lakes.
“(12) ‘Surface water’ means, for the purpose of determining the public’s access for recreational use, natural water body, its bed, and its banks up to the ordinary high-water mark.
“23-2-302. Recreational use permitted — limitations — exceptions. “(1) Except as provided in Subsections (2) through (5), all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters.
“(2) The right of the public to make recreational use of surface waters does not include, without permission or contractual arrangement with the landowner:
“(a) the operation of all-terrain vehicles or other motorized vehicles not primarily designed for operation upon the water;
“(b) the recreational use of surface waters in a stock pond or other private impoundment fed by an intermittently flowing natural watercourse;
“(c) the recreational use of waters while diverted away from a natural water body for beneficial use pursuant to Title 85, Chapter 2, part 2 or 3, except for impoundments or diverted waters to which the owner has provided public access;
“(d) big game hunting except by long bow or shotgun when specifically authorized by the commission;
“(e) overnight camping within sight of any occupied dwelling or within 500 yards of any occupied dwelling, whichever is less;
“(f) the placement or creation of any permanent duck blind, boat moorage, or any seasonal or other objects within sight of or within 500 yards of an occupied dwelling, whichever is less; or “(g) use of a streambed as a right-of-way for any purpose when water is not flowing therein.
“(3) The right of the public to make recreational use of class II waters does not include, without permission of the landowner:
“(a) big game hunting;
“(b) overnight camping;
“(c) the placement or creation of any seasonal object; or “(d) other activities which are not primarily water-related pleasure activities as defined in 23-2-301(10). * * *”
“23-2-311. Right to portage — establishment of portage route.
“(1) A member of the public making recreational use of surface waters may, above the ordinary high-water mark, portage around barriers in the least intrusive manner possible, avoiding damage to the landowner’s land and violation of his rights.
“(3)(e) The cost of establishing the portage route around artificial barriers must be borne by the involved landowner, except for the construction of notification signs of such route, which is the responsibility of the department. The cost of establishing a portage route around artificial barriers not owned by the landowner on whose land the portage route will be placed must be borne by the department

The public trust doctrine is found at Article IX, Section 3(3), of the Montana Constitution which provides:

“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 subject to appropriation for beneficial uses as provided by law.”

Section 70-1-202, MCA, provides:

“Property of the state — what included. The state is the owner of: “(1) all land below the water of a navigable lake or stream;
“(2) all property lawfully appropriated by it to its own use;
“(3) all property dedicated or granted to the state; and “(4) all property of which there is no other owner.”

Section 70-16-201, MCA, states:

“Owner of land bounded by water. Except where the grant under which the land is held indicates a different intent, the owner of the land, when it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.”

As noted in Curran, supra, and Hildreth, supra, the constitutional provision clearly provides the State owns the waters for the benefit of its people. In those decisions, we further held that the public’s right to use the waters includes the right of use of the bed and banks up to the high water mark even though the fee title in the land resides with the adjoining landowners. We did not define what kinds of use are permissible under the public trust doctrine.

The issue before us now is whether the public trust doctrine includes the types of use of the bed and banks found in Sections 23-2-301, et seq., MCA. Sections 23-2-302, MCA, has provided for a public right to build duck blinds, boat moorages, and camp overnight, so long as not within sight of or within 500 yards of an occupied dwelling, whichever is less.

The public trust doctrine in Montana’s Constitution grants public ownership in water not in beds and banks of streams. While the public has the right to use the water for recreational purposes and minimal use of underlying and adjoining real estate essential to enjoyment of its ownership in water, there is no attendant right that such use be as convenient, productive, and comfortable as possible.

The public has a right of use up to the high water mark, but only such use as is necessary to utilization of the water itself. We hold that any use of the bed and banks must be of minimal impact.

Appellants contend the right of public use set forth in the Cur-ran and Hildreth decisions applies only to the surface of navigable streams. This is incorrect. In Hildreth we explicitly included the right to use of the bed and banks. 684 P.2d 1094, 41 St.Rep. 1199. In Curran, we adopted a recreational use test to determine navigability. Appellants apparently contend that the right of public use is restricted to Class I waters; i.e., those waters considered to be navigable under the federal test. This is not so. As we said in Curran, “The capability of use of the waters for recreational purposes determines their availability for recreational use by the public. Streambed ownership by a private party is irrelevant.” 682 P.2d 170, 41 St.Rep. 914. The Montana Constitution makes no distinction between Class I and II waters. All waters are owned by the State for the use of its people.

Pursuant to Section 23-2-302, MCA, overnight camping and construction of a duck blind are permissible within a few feet of an occupied dwelling so long as these activities are not “within sight.” Similarly, a boat mooring could be placed directly in front of someone’s home if obscured from vision.

Overnight camping is not always necessary for utilization of the water resource itself. The public can float and fish many of our rivers without camping overnight. The statute is overbroad in giving the public right to a recreational use which is not necessary for the public’s enjoyment of its water ownership. The same can be said of constructing permanent objects between high water marks. Although duck blinds may be necessary for enjoying the ownership interests in certain large bodies of water, the right to construct permanent improvements on any commercially navigable stream does not follow.

Big game hunting as authorized by Section 23-2-302(d), between high water marks, is not permitted under any circumstances because it is not a necessary part of the easement granted the public for its enjoyment of the water. Further, although the recreational user has a right to portage around obstructions minimally impacting the adjoining landowner’s fee interest, there can be no responsibility on behalf of the landowner to pay for such portage route. The landowner receives no benefit from the portage. The benefit flows to the public and the expense should be borne by the State.

We reaffirm well established constitutional principles protecting property interests from confiscation. Landowners, through whose property a water course flows as defined in Curran and Hildreth, supra, have their fee impressed with a dominant estate in favor of the public. This easement must be narrowly confined so that impact to beds and banks owned by private individuals is minimal. Only that use which is necessary for the public to enjoy its ownership of the water resource will be recognized as within the easement’s scope. The real property interests of private landowners are important as are the public’s property interest in water. Both are constitutionally protected. These competing interests, when in conflict, must be reconciled to the extent possible.

Accordingly, we find Sections 23-2-302(2)(d), (e), and (f), MCA, to be unconstitutional. Further, we find Section 23-2-311(3)(e), MCA, to be unconstitutional insofar as it requires the landowner to bear the cost of constructing a portage route around artificial barriers. The balance of the statutory scheme accords with the Montana Constitution and the opinions of this Court. We find the unconstitutional portions of the statute to be subject to severance and therefore, leave the balance of the statute intact.

We enter declaratory judgment in favor of appellants in accordance with the views herein expressed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and WEBER concur.

MR. CHIEF JUSTICE TURNAGE,

concurring:

I have signed the majority opinion because I believe the result of the majority will offer some clarification to the existing law as well as remove unconstitutional provisions from the statutes.

I do not agree with all that has been said about the Public Trust Doctrine in this opinion and in the Curran and Hildreth decisions.

It was not then and it is not now necessary to resort to the theory of Public Trust Doctrine to find a right to the use of surface waters in this State for recreational purposes. This right, to whatever extent it may ultimately develop, is to be found in the express language of Article IX, Section 3(3) of the Montana Constitution, which provides:

“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 subject to appropriation for beneficial uses as provided by law.”

The Public Trust Doctrine is not expressly set forth in the Montana Constitution. It is a legal theory created by courts. This Court should not resort to creating or finding legal theories when a result can be reached from express constitutional language.

If the State of Montana is to be considered a trustee over waters of this State, or a trustee over any other property, under a Public Trust Doctrine, then the State must be held to the standard that applies to all trustees which standard requires that the trustee must own legal title to the property over which trust power is sought to be exercised.

MR. JUSTICE GULBRANDSON,

specially concurring:

I concur with the holding of the majority opinion that Section 23-2-302(2)(d), (e), and (f), MCA, are unconstitutional. I would also hold that Section 23-2-301(12), MCA, which defines “surface waters” as including “the bed and its banks up to the ordinary high-water mark” is unconstitutional as applied to Class II waters.

I would, in line with my dissents in the Curran and Hildreth decisions, request that this Court expunge from the Hildreth decision, the unsupported statement that “the public has the right to use [the bed and banks] up to the ordinary high water mark.” Hildreth, 684 P.2d 1088, 1094. In my opinion, that statement is dicta. There was no legal authority for said statement, it was not necessary to decide the issue before the court, and it conflicts with the holding of the majority decision that only that use which is necessary for the public to enjoy its ownership of the water resource will be recognized. In support of this position, I cite Day v. Armstrong (Wyo. 1961), 362 P.2d 137, a case relied upon by the majority in Curran. In Curran, this Court stated:

“In 1961, the Wyoming Supreme Court supported public use of waters suitable therefore without regard to title or navigability. The Court held:
“ ‘Irrespective of the ownership of the bed or channel of waters, and irrespective of their navigability, the public has the right to use public waters of this State for floating usable craft and that use may not be interfered with or curtailed by any landowner. It is also the right of the public while so lawfully floating in the State’s waters to lawfully hunt or fish or do any and all other things which are not otherwise made unlawful.’ Day u. Armstrong (Wyo.1961), 362 P.2d 137, 147.
“In essence, the Wyoming court held that public recreational use of waters was limited only by the susceptibility of the waters for that purpose.”

Curran, 682 P.2d 163, 170.

The Wyoming Supreme Court in Day further stated:

“When waters are able to float craft, they may be so used. When so floating craft, as a necessary incident to that use, the bed or channel of the waters may be unavoidably scraped or touched by the grounding of craft. Even a right to disembark and pull, push or carry over shoals, riffles and rapids accompanies this right of flotation as a necessary incident to the full enjoyment of the public’s easement .... On the other hand, where the use of the bed or channel is more than incidental to the right to floating use of the waters, and the primary use is of the bed or channel rather than the floating use of the waters, such wading or walking is a trespass upon lands belonging to a riparian owner and is unlawful. Such trespass cannot be made lawful either by legislative or judicial action . . . Except as herein specified, to use the bed or channel of the river to wade or walk the stream remains an unlawful trespass.”

Day, 362 P.2d 137, 145-46.

It is my opinion that where the State has title to the streambed, it may legislate, within the limits of declared public policy, the use of the streambed. Where the title to the streambed is privately owned, the State has no legal authority to legislate use of the bed and banks of that stream without paying just compensation through lawful eminent domain proceedings.

MR. JUSTICE HUNT,

dissenting:

I dissent. The majority finds Sections 23-2-301, et seq., MCA, an impermissible enlargement of the public trust doctrine and this Court’s holdings in Montana Coalition for Stream Access, Inc. v. Curran (Mont. 1984), [210 Mont. 38,] 682 P.2d 163, 41 St. Rep. 906, and Montana Coalition for Stream Access, Inc. v. Hildreth (Mont. 1984), [211 Mont. 29,] 684 P.2d 1088, 41 St.Rep. 1192. They describe in some detail the evils they foresee if the public uses the streambed up to the high water mark in a “convenient, productive, and comfortable” way. While they acknowledge the public’s right to use the streambed, and reject appellant’s claim that the public may only use the surface of the water, they find the use permitted by Sections 23-2-301, et seq., MCA, give the public rights that are not necessary to utilize the stream or river.

I do not agree that this is so but if it is then it is a question for the legislature to solve as experience teaches how we can best balance the rights of the landowner and the public.

The issues addressed by the majority opinion are not properly before this Court. They were not raised at the District Court level nor on appeal. The appellants filed an action for declaratory judgment alleging that Sections 23-2-301 through 23-2-322, MCA (H.B. 265) were unconstitutional as a taking of private property for public use without the landowner’s consent or just compensation.

In the District Court and on this appeal appellants raised these three issues:

1. Whether H.B. 265 operates as a taking of private property for the public purpose of recreational uses without providing just compensation for the taking.

2. Whether H.B. 265 is constitutionally deficient because it failed to include in its title any reference to or any reasonable reference to the fact that private property was being committed to the public purpose of recreational uses without just compensation, and without the consent of the landowner.

3. Whether the District Court erred in not finding H.B. 265 unconstitutional in part.

The issues raised by appellants and briefed by respondents on appeal are clearly res judicata under this Court’s decisions in Curran, 682 P.2d 163, 41 St.Rep. 906, and Hildreth, 684 P.2d 1088, 41 St.Rep. 1192. In both of those opinions we upheld the dismissal of the defendant’s counterclaims for inverse condemnation based on the theory there had been a taking of land without compensation. In discussing this issue in Curran we pointed out the provision in the Montana Constitution that applied and discussed its application as follows:

“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.” [Art. IX, Section 3(3), 1972 Mont. Const.]
“Thus, Curran has no right to control the use of the surface waters of the Dearborn to the exclusion of the public except to the extent of his prior appropriation of part of the water for irrigation purposes, which is not at issue here. Curran has no right of ownership to the riverbed or surface waters because their ownership was held by the federal government prior to statehood in trust for the people. Upon statehood, title was transferred to the State, burdened by this public trust.
“In essence, the question is whether the waters owned by the State under the Constitution are susceptible to recreational use by the public. The capability of use of the waters for recreational purposes determines their availability for recreational use by the public. Streambed ownership by a private party is irrelevant. If the waters are owned by the State and held in trust for the people by the State, no private party may bar the use of those waters by the people. The Constitution and the public trust doctrine do not permit a private party to interfere with the public’s right to recreational use of the surface of the State’s waters.”

Curran, at 170, 41 St.Rep. at 914.

In Hildreth, we again considered the issue and said:

“Hildreth’s claim for inverse condemnation is based upon the theory that there has been a taking of his land without compensation. Such is not the case. Public use of the waters and the bed and banks of the Beaverhead up to the ordinary high water mark was determined, not title. (Emphasis in original.)”

Hildreth, at 1093, 41 St.Rep. at 1197.

H.B. 265 represents a legislative enactment that attempts to reconcile the conflicting interests of recreationalists and landowners, within the ambits of the law as set out by this Court in Curran and Hildreth.

The District Court provided us with an excellent analysis of the launching and ultimate enactment of H.B. 265. This dissent adopts that portion of District Court’s Opinion and Order as follows:

“C. House Bill 265
“The minutes of the meeting of the Senate Judiciary Committee on March 8, 1985 relate some of the history of House Bill 265 as follows:
“ ‘Representative Bob Ream, sponsor of H.B. 265, introduced the bill to the Committee and traced a bit of its history. There were a variety of bills on stream access last [1983] legislative session. Because of the uncertainty regarding the Hildreth and Curran Supreme Court decisions at that point in time, Representative Keyser sponsored a resolution requesting an interim study. The interim committee provided a public forum for this issue. People began to realize it wasn’t a black and white situation; there were areas of gray in between on which people were going to have to compromise. Both sides realized they would have to come up with a bill to ameliorate some of their concerns. This is not a committee bill, but a bill on which the two sides got together in the months before the session began and hammered it out. The bill was before the House Judiciary Committee, which appointed a subcommittee headed by Representative Keyser. There was an attempt to involve both sides in the decision making on the amendments made by the subcommittee .... The goal of the subcommittee was to keep House Bill 265 within the bounds of the Supreme Court decisions and to express the Legislature’s desire to tie down and define the areas that were left very broad in those decisions.”

As Judge Loble pointed out, many organizations were instrumental in supporting this bill. For example the Montana Stockgrowers Association and members of the agricultural industry alliance, consisting of the Montana Stockgrowers Association, Montana Wool Growers Association, Montana Association of State Grazing Districts, Montana Cowbelles, Montana Farmers Union, Montana Cattlemen’s Association, Montana Cattle Feeders Association, Montana Farm Bureau Federation, Montana Water Development Association, Women Involved in Farm Economics, and the Agricultural Preservation Association, supported passage of H.B. 265.

Their position was set forth very clearly in a written statement submitted to the committee and it is set forth here:

“While the suits [Curran and Hildreth] were pending on appeal to the Supreme Court of Montana, the 1983 Legislature considered a variety of stream access legislation. Those efforts failed in deference to the appellate process. In May and June of 1984, the Supreme Court of Montana rendered two broad, sweeping decisions which allowed the public the right to use all state waters for any recreational and incidental uses. The use right was extended to the high water mark on all streams regardless of size. The decisions did not attempt to provide definition to many of the terms and rights extended, inviting a legislative response.
“Fortunately the 1983 Legislature had created an interim study committee to receive testimony and propose legislation. The interim committee met both before and after the Supreme Court of Montana decisions and considered primary and collateral issues raised by the decided cases.
“The interim committee gave thoughtful deliberation to the issue and developed House Bill 16 which became the catalyst for the remaining legislation being considered by this committee. It is fair to say that absent these actions the later activities of the agricultural community, working in conjunction with recreationalists and the Department of Fish, Wildlife and Parks, would have never occurred.
“As the interim committee’s action drew to a close, landowner groups met to outline the goals for upcoming legislation and to plan for [the 1985] session. All groups agreed that it was critical to pass legislation this session, both to define areas left unclear by the Supreme Court of Montana’s decisions, to allay the fears of landowners and recreationalists, and to avoid conflict as the newly won rights were tested and applied to specific streams other than the streams subject to the litigation.
“To pass legislation which would be sustained in the event of a court challenge required an analysis of the limits of the Supreme Court of Montana decisions and a determination to propose legislation within those limitations. Six major goals were identified ....
“House Bill 265 addresses all of these concerns within the limitations imposed by the decisions of the Supreme Court of Montana. While the result reached in those decisions were not to the liking of most landowners, it is irresponsible to ignore those decisions or to propose legislation which is not cognizant of the opinions of the court. The Supreme Court of Montana, the third branch of state government, construing the Constitution of Montana, has declared rights to exist in the public which protect the continued recreational use of all waters of the state. Absent passage of a constitutional amendment restricting those rights, legislation which failed to abide by those decisions and the Montana Constitution would probably be declared void. There is little gained in passing legislation which is constitutionally flawed and likely to be declared void if challenged. Thus, while landowner grounds appreciated the sincere efforts brought to the debate and drafting of both House Bill 16 and House Bill 275, they concluded alternative legislation was needed which addressed the major goals identified and did so in a vehicle [H.B. 265] which would likely pass court challenge.”

[Written testimony of Ron Waterman, dated January 22, 1985.]

In my opinion, the District Court correctly concluded that the very point decided in Curran and Hildreth is the issue in this case and that Section 23-2-302, MCA, was the legislation that constitutionally responded to these opinions and it was left with nothing to do but grant defendant’s motion for summary judgment.

MR. JUSTICE SHEEHY,

dissenting:

I concur in the dissent of Mr. Justice William E. Hunt, Sr. and have further remarks to make.

The best that can be said of the majority opinion is that as to the recreational use of waters, it has certainly muddied the waters. When one reads the majority opinion in the light of Curran (1984), 682 P.2d 163, 41 St.Rep. 906, and Hildreth (1984), 684 P.2d 1088, 41 St.Rep. 1192, one can only conclude that the law respecting the correlative rights of landowners and recreational water users in Montana is adrift in a sea of confusion.

I. THE STATUTES ON THE RECREATIONAL USE OF STREAMS

Following our decisions in Curran and Hildreth, the legislature met in 1985. One of the principal subjects attacked by the legislature in 1985 was the enactment of laws that would define the rights of recreational water users with respect to adjoining landowners. The legislation was vigorously argued, and the resulting statutes incorporated in Title 23, Chapter 2, Part 3 represent a legislative enactment that balanced the contending arguments of the interested parties. The legislation shows that it was founded on a proper interpretation of Curran and Hildreth, in a field where the interpretation by the legislature was proper. This Court has no business interfering or setting legislation aside where the legislature has properly acted within its distinctive sphere.

For ease of discussion, rather than setting out the statutes in haec verba, it is suitable to paraphrase what the legislature has done, and to set out with particularity those portions which the majority have confused.

First, the legislation refers to surface waters, and streams. It has no applicability to lakes. “Surface water” was defined for the purpose of recreational use to include a natural water body, its bed and its banks up to the ordinary high water mark. Section 23-2-301(12), MCA. By defining “surface water” to include the water itself and its stream bed up to the high water mark, the legislature was following the law as expostulated in Curran and Hildreth, as will be shown later in this dissent.

The legislature also defined “recreational use” to include fishing, hunting, swimming, floating, boating, and “other water related pleasure activities, and related unavoidable or incidental uses.” Section 23-2-301(10), MCA.

An important part of the legislation is the division by the legislature of surface waters into classes. Class I waters essentially are defined as those waters that are recognized as navigable or have been judicially determined as navigable or are capable of supporting commercial activities. All other surface waters are designated Class II waters. Sections 23-2-301(2), (3), MCA.

Recreational uses are permitted in Section 23-2-302. More specific reference well be made to those hereunder.

II. TITLE TO STREAMBEDS

The glaring defect in the majority opinion is that although it purports to support the public trust doctrine enunciated in Curran and Hildreth, it finds the public’s right to use those waters to be something in the nature of an easement. Such a concept of ownership or right of use is in derogation of the public trust doctrine because under the doctrine the title to the streambed up to the high water mark resides in the state, and while the state may regulate the public use of streambeds under its ownership, it may not deed away the ownership of the streambeds. As to Class I streambeds, the concept of a mere easement right in the public must fail. The state has title.

In Curran, the majority pointed Out that under Schively v. Bowlby (1894), 152 U.S. 1, 48-50, 14 S.Ct. 548, 566, 38 L.Ed.2d 331, the Supreme Court stated:

“The Congress of the United States, in disposing of the public lands, has constantly acted on the theory that those lands, whether in the interior, or on the coast, above high water mark, may be taken up by actual occupants, in order to encourage the settlement country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and . . . shall not be granted away during the period of territorial government;. . . shall be held by the United States in trust for the future states, and shall vest in the several states, when organized and admitted into the union . . . but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall become a completely organized community. (Emphasis added.)”

682 P.2d at 167, 41 St.Rep. at 910.

We further pointed out in Curran that under the public trust doctrine as first enunciated in Illinois Central Railroad v. Illinois (1892), 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018, the United States Supreme Court said

“. . . The trust devolving upon the state for the public, and which can only be discharged by the management and control be relinquished by a transfer of the property. The control of the state for the purposes of the trust except as such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. (Emphasis added.)’ ”

682 P.2d at 168, 41 St.Rep. at 911

The majority opinion has set out the provisions of Section 70-16-201, MCA, which purports to provide that the owners of land abounded by water take ownership to the low water mark. Under the public trust doctrine, such transfer of lands subject to the public trust under navigable streams cannot occur. “The control of the state for the purposes of the trust can never be lost.” Illinois Central Railroad, 146 U.S. at 387, 13 S.Ct. at 110, 36 L.Ed. at 1018.

Section 17-16-201, MCA, was enacted in 1895, according to its history, although it probably pre-existed state government. Nevertheless, when defining fishing rights in 1933, the legislature provided in Section 87-2-305, MCA:

Navigable Waters Subject to fishing rights. Navigable rivers, sloughs, or streams between the lines of ordinary high water thereof of the State of Montana and all rivers, sloughs and streams flowing through any public lands of the state shall hereafter be public waters for the purpose of angling, and any rights of title to such streams of the land between the high water flow lines or within the meander lines of navigable streams shall be subject to the right of any person owning an anglers license of this state who desires to angle thereon or along their banks to go upon the same for such purpose.”

The definition by the legislature in 1933 of the right to use the streambeds up to the high water mark for the purpose of fishing is an indirect recognition of the legislature that Section 70-16-301, MCA, is not worth the paper it is written on insofar as it applies to the streambeds between high water marks on navigable streams.

Plainly, then, we held in Curran and that holding controls here:

“Curran has no right of ownership to the river bed or surface waters because their ownership was held by the federal government prior to statehood in trust for the people. Upon statehood, title was transferred to the state, burdened by this public trust.”

682 P.2d at 170, 41 St.Rep. at 914.

The retrenchment by the majority members from Curran to a position that the adjoining landowners on a stream owned the streambed subject to an easement is perplexing, Three of the majority members, Justices Morrison, Harrison and Weber signed the Curran opinion without a murmur of discontent. Justice Gulbrandson, in his dissent in Curran did not dispute the public trust doctrine theory of ownership in the state, but argued instead that summary judgment was improper on the test of navigability of the Dearborn River.

In Hildreth, we strongly reaffirmed Curran, saying:

“Under the 1972 Constitution, the only possible limitation of use can be the characteristics of the waters themselves. Therefore, no owner of property adjacent to state-owned waters has the right to control 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 water mark. Curran, supra. 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 damages to the adjacent owners property and his rights.”

Hildreth, 684 P.2d at 1091, 41 St.Rep. at 1195.

In Hildreth we determine that the landowner had not been deprived of a property right. We said:

“As discussed previously in this opinion and extensively in Curran, supra, ownership of the stream bed is irrelevant to determination of public use of the waters for recreational purposes. Navigability for recreational land 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 bank up to the ordinary high water mark, with additional, narrowly limited rights to portage around barriers.”

684 P.2d at 1094, 41 St.Rep. at 1198.

In Hildreth, Justices Morrison, and Weber concurred. Justices Gulbrandson and Harrison dissented, partly on the ground that they would defer to the legislature in finding solutions to water use conflicts between landowners and recreational users. The legislature has now acted.

In the fairly recent case, Montana v. United States (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493, reaffirmed the proposition that states when organized, own the title to the riverbeds of the navigable streams. The court said:

“The Crow Treaties in this case, like the Chippewa treaties in Holt State Bank, fail to overcome the established presumption that the beds of navigable rivers remain in trust for future states and pass to the new states when they assume sovereignty.”

450 U.S. at a553, 101 S.Ct. at 1252, 67 L.Ed. at 502.

The statement of the majority opinion therefore, that “we reaffirm well-established constitutional principals protecting property interest from confiscation” is ill-founded insofar as it applies to Class I streambeds. The adjoining property owners have no ownership interest in the streambeds of Class I waters and therefore, nothing is being confiscated. The major premise of the majority opinion is faulty. When the state legislature acts within its sphere to regulate the use of property which the state owns, we should respect the legislative discretion.

III. BIG GAME HUNTING

The majority hold unconstitutional this portion of Section 23-2-302-(2), MCA:

“The right of the public to make recreational use of surface waters does not include, without permission or contractual arrangement with the legislature with the landowner:
“(d) Big game hunting except by long bow or shotgun when specifically authorized by the commission;

It has always been accepted that landowners may give permission to big game hunters to go on the landowners’ premises for big game hunting. The legislature in the above statute extended this requirement of permission from the landowner to the streambeds which the landowners do not own. If the requirement for the landowners’ permission were being attacked by a water recreational user we might have reason to declare that portion of the statute unconstitutional except for the fact the Department of Fish, Wildlife and Parks in any event has the right to control big game hunting. The statute confers no right to big game hunting or streambeds except by permission of the landlord. There is no unconstitutionality inherent in the provision.

IV. OVERNIGHT CAMPING AND DUCK BLINDS

What is said foregoing about the right of the state to control streambeds, particularly under Class I lands, would indicate that the legislature has a perfect right as owner to permit any sort of lawful activity on the portions of the lands that it owns. The majority finds that permitting a water recreational user to roll out his sleeping bag or set up his pup tent overnight is “overbroad.” Yet, these are legislative decisions, made by the legislature after public hearings and discussion. What was done was the legislature’s business and not ours.

V. THE RIGHT OF PORTAGE

The legislature provided for portage, at the same time as it defined recreational uses, by enacting Section 23-2-311, MCA. Paraphrasing that statute, the recreational user of surface waters is empowered to portage around barriers in the least intrusive manner possible, avoiding damage to the landowner’s land. The landowner is permitted to create barriers across streams for land or water management or to establish boundary fences. No right of portage is granted if the barrier does not interfere with the public’s use of the surface waters. Either a recreational user or a landowner may request a portage route around or over a barrier to avoid damage to a landowner’s land. If an artificial barrier is placed by the landowner, the cost of establishing a portage route is borne by the landowner. If the barrier is not of the landowner’s doing, the Department of Fish, Wildlife and Parks pays the cost of the portage route. Once established, the Department must maintain the portage route. An arbitration panel is provided for in case the landowner or recreationalist disagree. The portage route is the exclusive means to portage over and around the barrier. No attempt was made by the legislature to establish portage routes for natural routes, as distinguished from artificial barriers.

Again, without distinguishing Class I waters, and without substantial discussion of the difference between Class I and Class II waters, the majority finds the provisions of Section 23-2-311, MCA, unconstitutional, insofar as the landowner must bear the cost of constructing a portage route.

The effect of this portion of the majority opinion is to give the landowner the go-ahead to construct artificial barriers across navigable waters which impede recreational use without cost. What we have said foregoing with respect to title serves to refute any possible logic in that position.

VI. CONCLUSION

I would uphold the constitutionality of the statutes in toto. The legislature, cognizant of its ownership rights and its duties as trustee of the public acted within its legislative discretion in adopting the statutes. There is no sound basis for our interference.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    BIG HORN COUNTY, Montana, a Political Subdivision of the State of Montana, Plaintiff and Appellant, v. DICK GREGORY, John Lind, Joyce Lippert, Defendants and Respondents.
    No. 86-348.
    Submitted on Briefs Nov. 13, 1986.
    Decided Jan. 15, 1987.
    730 P.2d 1181.
    Clarence Belue, Hardin, for plaintiff and appellant.
    James E. Torske, Hardin, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from a summary judgment entered in favor of defendants in the District Court, Thirteenth Judicial District, Big Horn County. We affirm the judgment of the District Court.

Plaintiff Big Horn County brought an action in District Court, pursuant to Section 7-6-2323, MCA, to recover alleged excess expenditures by the defendant county commissioners and clerk and recorder. Section 7-6-2323 provides that a county official who makes or incurs expenditures in excess of any detailed budget appropriations shall be personally liable for those excess expenditures. After extensive discovery, both sides moved for summary judgment. On May 30, 1986, the District Court granted defendants’ cross-motion for summary judgment.

The controversy in this case arose over appropriations for the salary of a part-time justice of the peace for Big Horn County, Ray Morrissette. Big Horn County employs two justices of the peace; there is a full-time justice of the peace, Kenneth Snively, and a part-time, “on-call,” justice of the peace, Ray Morrissette.

On June 20, 1983, the Big Horn County Board of Commissioners passed a resolution, pursuant to Section 3-10-207, MCA, fixing the salary of the county justice of the peace at $18,333.61. The resolution did not distinguish between the full and part-time positions, nor did it designate the office hours for each justice’s court as mandated by Section 3-10-208, MCA. The $18,333.61 salary was calculated by reviewing a tabulation prepared by County Clerk and Recorder Lippert, under the procedure outlined in the County Budget Law, Sections 7-6-2313 through -2320.

The tabulation listed the collective salaries of the justice court at $43,630.00: $21,200.40 was for the salaries of the court employees, $18,333.61 was for the salary of the full-time Justice of the Peace Snively, and $4,095.99 was for the salary of the part-time Justice of the Peace Morrissette. On July 26, 1983, the Board of Commissioners signed a payroll authorization for Morrissette, authorizing a salary of $8.8142 per hour for regular part-time work. The hourly rate was apparently arrived at by dividing the annual justice of the peace salary of $18,333.61 by 2080 hours, the number of working hours in a year.

Problems began in May, 1984, when the timesheets submitted by Morrissette overdrew the money appropriated for his position. When it became apparent that to continue paying Morrissette according to the claims he was submitting would overrun his appropriation, a dispute arose as to how to handle the budget problem. Commissioner Ruegamer proposed that the Board adopt an emergency budget resolution pursuant to Section 7-6-2342, MCA. Commissioners Gregory and Lind rejected Reugamer’s proposal, and instead paid Morrissette’s salary claims. They later adopted a resolution to make line item transfers in the budget to cover the expenditures, as authorized under Section 7-6-2325, MCA. The total overrun of Morrissette’s salary was $5,210.98 at the end of the fiscal year.

Big Horn County contends the line item transfer of funds to cover the $5,210.98 overrun on Morrissette’s salary was a violation of Section 7-6-2325, MCA. That statute provides:

“Upon resolution adopted by the board of commissioners at a regular or special meeting and entered upon its minutes, transfers or revisions in the general budget system . . . may be made, provided that no salary shall be increased above the amount appropriated therefor. (Emphasis added.)

Big Horn County argues that by paying the $5,210.98, the Board of Commissioners illegally increased Morrissette’s salary from the $4,095.99 which was appropriated in the county’s final budget. Under Section 7-6-2323(2)(a), MCA, the effect of exceeding the $4,095.99 appropriation is to make Commissioners Gregory and Lind and Clerk and Recorder Lippert personally liable for four-fold the amount of the over-expenditure, or $20,843.92.

We find the County has misconstrued the application of the statute. In June, 1983, the Board, by resolution as required under Section 3-10-207, MCA, set the annual salary for county justice of the peace at $18,333.61. The annual salary computed to an hourly rate of $8.8142. This amount, $18,333.61 a year or $8.8142 per hour, was never increased.

Given the part-time, “on-call” status of Morrissette’s position, it was not possible to determine a precise yearly amount for the position. As pointed out by the District Court, the $4,095.99 appropriated in the budget was, at best, an estimate of the hours Morrissette would work in the coming fiscal year. Thus, the $4,095.99 appropriated in the budget was not a “salary” as contemplated under the County Budget Law. It was rather the best estimate of the cost of Morrissette’s time, based on a fluctuating workload.

Under the 1972 Montana Constitution, Art. VII, Section 5(1), justices of the peace are to receive monthly compensation as required by law. The law of Montana specifically mandates that salaries for justices of the peace shall be set by a resolution of the board of county commissioners. Section 3-10-207, MCA. The Big Horn County Board of Commissioners complied with this law by setting the salary of the justice of the peace at $18,333.61. Having set this salary, they were required to pay Morrissette the salary he earned commensurate with his workload. Since Big Horn County did not need two full-time justices of the peace, Morrissette voluntarily accepted the part-time position. He maintained his own office, filling in for the full-time justice of the peace on an “on-call” basis. In view of this situation, the Board of Commissioners authorized payment of Morrissette at $8.8142 an hour, an amount which would accurately reflect his part-time, fluctuating hours. When Morrissette’s hours overran the budget appropriation, the Commissioners passed a resolution transferring funds to cover the overrun. This transfer did not have the effect of increasing Morrissette’s salary, which remained at $8.8142 an hour. Since this transfer of appropriations was accomplished under the authorization of Section 7-6-2325, MCA, the Board of Commissioners and Clerk and Recorder acted within the scope of their statutory duty and are not personally liable.

Judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and MORRISON concur.


author: MR. JUSTICE WEBER

text:
    JOHN S. SMITH, Plaintiff and Appellant, v. The MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.
    No. 86-296.
    Submitted Nov. 25, 1986
    Decided Jan 16, 1987.
    731 P.2d 924.
    Harlen, Thompson & Parish, Richard L. Parish argued, Helena, for plaintiff and appellant.
    Patrick T. Fleming argued, Butte, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Appellant John Smith instituted a wrongful termination action against the Montana Power Company (MPC), specifically pleading negligence and breach of good faith and fair dealing. The District Court for the Second Judicial District, Silver Bow County, granted the summary judgment motion of MPC on the ground that Mr. Smith’s claims were preempted by federal law. We affirm.

The issue is whether the District Court erred when it held that Mr. Smith’s negligence and good faith claims were preempted by federal law.

In December 1981, John Smith was hired by MPC as an instrument and control journeyman at Colstrip I and II. Mr. Smith was a member of the International Brotherhood of Electrical Workers Local No. 44 which had a collective bargaining agreement with MPC during all times relevant to this case. In September 1982, Mr. Smith was discharged by MPC. Mr. Smith maintains in his brief that he attempted to file a grievance in accordance with the collective bargaining agreement, but MPC refused to discuss the case with his union representative. The District Court found, however, that “[t]he affidavits submitted by Defendant also disclose that Plaintiff failed to exhaust his remedies under the collective bargaining agreement.”

Mr. Smith filed an amended complaint in April, 1986, alleging MPC had violated its duty of good faith and fair dealing and had negligently investigated the allegations which led to his termination. MPC filed a motion for summary judgment on the grounds: (1) that John Smith did not exhaust the grievance procedure set forth in the collective bargaining agreement; (2) that state law is preempted by federal law in this case and thus the state tort claims must be dismissed; and (3) that the applicable federal statute of limitations expired prior to the filing of the complaint. The District Court granted MPC’s motion for summary judgment stating that the state tort claims were preempted by the federal labor law governing collective bargaining agreements.

Did the District Court err when it granted summary judgment and held that Mr. Smith’s negligence and good faith claims were preempted by federal law?

A summary judgment motion shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. There is no dispute that there was a collective bargaining agreement in effect between MPC and Mr. Smith when Mr. Smith was discharged. There is also no dispute that Mr. Smith filed this lawsuit in the District Court for the Second Judicial District alleging two state tort law violations on the part of MPC. We agree with the District Court that Mr. Smith has failed to set forth any material facts precluding summary judgment.

Our analysis must then shift to whether MPC is entitled to judgment as a matter of law. The District Court based its dismissal decision primarily on the United States Supreme Court case of Allis-Chalmers v. Lueck (1985), 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206. In Allis-Chalmers, Roderick Lueck brought a state tort claim against his employer and its insurer which administered an insurance plan included in a collective bargaining agreement, seeking recovery for alleged bad faith in the handling of his back injury claim. The collective bargaining agreement established a grievance procedure which culminated in final and binding arbitration. Mr. Lueck did not attempt to grieve his dispute, but filed suit in state court. The Wisconsin Supreme Court held Mr. Lueck’s tort claim was not preempted by national labor laws. The United States Supreme Court reversed stating:

“We do hold that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a Section 301 claim (cite omitted) or dismissed as preempted by federal labor-contract law.”

Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1916, 85 L.Ed.2d at 221. Allis-Chalmers reasoned that unless federal law governed claims which involve a collective bargaining agreement, varying interpretations could result and the congressional goal of a unified body of labor-contract law would be subverted. In addition, federal preemption of these state-tort claims was held necessary to preserve the central role of arbitration in the resolution of labor disputes.

Section 301 of the Labor Management Relations Act provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties ...”

29 U.S.C. Section 185(a). Textile Workers v. Lincoln Mills (1957), 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, interpreted Section 301 to be a congressional mandate to develop a unified federal common law to address labor contract disputes. Teamsters v. Lucas Flour Co. (1962), 369 U.S. 95, Section 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.” Lucas Flour, 369 U.S. at 104, 82 S.Ct. at 577, 7 L.Ed.2d at 600.

Although Mr. Smith did not mention the collective bargaining agreement in his amended complaint, the fact remains that the bargaining agreement must be analyzed to resolve this case. The Allis-Chalmers court stated:

“[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers’ conduct breached that implied contract provision.”

Allis-Chalmers, 471 U.S. at 215, 105 S.Ct. at 1913, 85 L.Ed.2d at 218.

Likewise, the issues surrounding Mr. Smith’s discharge are questions of federal contract interpretations. The obligations regarding MPC’s dismissal of Mr. Smith arise out of the various collective bargaining agreement sections set out below. The employment agreement between MPC and the Electrical Workers Local Union No. 44, of which Mr. Smith was a member, provides in pertinent part:

“ARTICLE II. TERM

“Section 1.

That for and in consideration of harmonious relations and settled conditions of employment with financial and personal relations mutually beneficial, the parties hereto do hereby enter into, establish and agree to the following wage schedules and conditions of employment ... It is understood and agreed that the members of the International Brotherhood of Electrical Workers in the employ of the Company under this Agreement and receiving the following wage schedules and conditions of employment are in return therefor to render to said Company honest and diligent service.”

“ARTICLE III. RECOGNITION

“Section 1.

The ‘Company’ hereby recognizes the ‘Union’ as the exclusive bargaining agent for all employees performing electrical work in the classifications covered hereby . . . “

In addition, the bargaining agreement sets out a very extensive grievance procedure to be followed by an employee “who feels that he or they have been aggrieved on any matter arising out of or outside of the Agreement...” The grievance procedure spells out a six step process that must be followed by an aggrieved employee. At the conclusion of an unsuccessful grievance proceeding, the agreement provides for arbitration of the dispute:

“It is understood and agreed that in the event any question or controversy arising under this Agreement, or any of its terms, cannot be amicably adjusted by the parties hereto, the same shall be settled by arbitration, as follows:”

The following arbitration section sets out a detailed and complete arbitration process and provides that such arbitration “shall be final and binding upon the parties.”

The collective bargaining agreement between Mr. Smith and MPC was unusual in that it did not address the discharge of an employee or the standards to be applied in a discharge situation. Thus, while there are not any specific discharge provisions upon which Mr. Smith’s tort claims are “substantially dependent”, it is clear that those tort claims are “substantially dependent” on the above referenced sections. The grievance procedure covers all grievances “arising out of or outside the [agreement”. (Emphasis added.) Therefore the grievance procedure, and the arbitration procedure if the grievance proceedings prove unsuccessful, covers Mr. Smith’s dispute with MPC.

This Court cannot neutralize or disregard the collective bargaining agreement. As required by Allis-Chalmers, we conclude that the District Court did not err in holding Mr. Smith’s negligence and good faith claims were preempted by federal law. This decision is necessary to insure a unified body of labor-contract law and preserve the central role of arbitration in labor disputes.

We note that the District Court found that “[t]he affidavits submitted by Defendant also disclose that Plaintiff failed to exhaust his remedies under the collective bargaining agreement.” Although the District Court did not base its summary judgment order on the fact that Mr. Smith failed to exhaust his grievance procedure, we should point out that our recent case of Brinkman v. State of Montana (Mont. 1986), [224 Mont. 238,] 729 P.2d 1301, 43 St.Rep. 2163, ruled that the failure to exhaust contractual remedies under a collective bargaining agreement barred Mr. Brinkman from suing for wrongful discharge. While the Brinkman case does not control the disposition of this case because the District Court did not base its summary judgment on Mr. Smith’s failure to exhaust the grievance procedure, we do note the Brinkman holding.

We affirm the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE SHEEHY THE HON. HENRY C. LOBLE,

text:
    PERCY A. MIELKE and Deborah G. Mielke, Plaintiffs and Respondents, v. DALY DITCHES IRRIGATION DISTRICT and Board of Commissioners of Daly Ditches Irrigation District, Defendants and Appellants, DALY DITCHES IRRIGATION DISTRICT and Board of Commissioners of Daly Ditches Irrigation District, Third Party Plaintiffs and Appellants, v. The STATE OF MONTANA and DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION of the State of Montana, Third Party Defendants and Appellants.
    No. 85-617.
    Submitted Dec. 9, 1986.
    Decided Jan. 16, 1987.
    731 P.2d 927.

      Larry Persson argued, Hamilton, for Daly Ditches.
    Candace West argued, Helena, for Dept. Natural Resources.
    Jeffrey H. Langton argued, Hamilton, for Mielke.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The Daly Ditches Irrigation District, the State of Montana and the Department of Natural Resources and Conservation (DNRC) of the State of Montana appeal herein from a final decision of the District Court, Fourth Judicial District, County of Ravalli, which held that the plaintiffs Percy and Deborah Mielke have a first priority water right for irrigation from Gird Creek on the basis of adverse use.

We determine under the facts of this case that the Mielkes have failed to establish the requisite elements to acquire the prescriptive water right which was accorded to them by the District Court.

The plaintiffs Mielkes are residents of Ravalli County, Montana, and own farm lands of which 98.44 acres produce crops by irrigation. They obtained irrigation water through a lateral ditch owned by them and a headgate on Gird Creek which diverted water from the creek through their lateral. Gird Creek is a part of the Daly Ditch Irrigation District system.

In July, 1983, the Daly Ditches Irrigation District locked the headgate through which Mielkes diverted water from Gird Creek to irrigate their lands. This caused the Mielkes to commence an action in District Court against the defendant Daly Ditches Irrigation District. In their complaint, the Mielkes alleged that they were the owners by appropriation of 200 inches of wáter from Gird Creek and they asked for an injunction against the inference by the District with their water right. The District filed its answer, generally denying the allegations of the complaint, pleading affirmatively that the water rights have been transferred by a predecessor so as to sever the water rights from the land and counterclaiming against the Mielkes for fees for the 1983 irrigating season.

The Mielkes responded to the counterclaim and affirmative defenses by general denial, and by alleging affirmatively that they had an adverse use right to irrigation water for 98.44 acres. The Mielkes further contended that Contract No. 90, which provided water to the Mielkes at the rate of $1.25 per acre-foot was perpetual in its terms and that the State had wrongfully raised the fees during the period the State operated the project.

The State of Montana and the DNRC were brought into the action as third party defendants by the District on a claim of indemnity.

The Daly Ditches Irrigation District (sometimes referred to as the Daly Ditch Project) is a water project located in Ravalli County. The project consists of several irrigation ditches and systems designed to supply water to irrigable lands near Hamilton, Montana, on the east side of the Bitterroot River. Historically, the Daly Ditch Project came into existence as a result of the acquisition of lands and water rights around the turn of the century by the Butte copper king, Marcus Daly.

Mielkes’ present farm lands were first described as part of lands passing by patents issued to Winfield Sherrill and Jacob Sherrill, dated 1889 and 1895, respectively. In 1888, Jacob Sherrill filed in the county records a notice of appropriation for 600 miner’s inches of water from Gird Creek, claiming an original appropriation date of 1864.

In June, 1890, Winfield Sherrill and the Estate of Jacob Sherrill conveyed title to the land with the appropriated water right to James C. Flanner. In September, 1890, Flanner conveyed title to the land and the water right to James W. Hamilton. Hamilton, in turn, conveyed the same to Marcus Daly in October, 1890.

In December, 1901, the Estate of Marcus Daly conveyed the various ditch and water rights acquired during Daly’s lifetime (including the waters of Gird Creek) to Ravalli Land and Irrigation Company. On the same date, the estate conveyed many parcels of land (including what is now the Mielkes’ property) to Bitterroot Stock Farm, another corporation. The land deed to Bitterroot Stock Farm specifically expected and reserved therefrom all water rights, water ditches and rights-of-way for ditches which attached to or were part of the lands conveyed. In legal effect, then, Daly’s lands were conveyed to the Bitterroot Stock Farm. The water rights, ditches and easements for ditches, which were formerly held by Daly as appurtenant to the lands were separated and conveyed to Ravalli Land and Irrigation Company.

In 1920 and 1934, John Kalberer (Mielkes’ predecessor in interest) purchased land from the Bitterroot Stock Farm. At the same time, he also entered into water contracts with the Ravalli Land and Irrigation Company for the purchase of water to irrigate his purchased lands. The water contracts were designated as Contract or Account No. 90.

In 1946, Mielkes purchased the lands from Kalberer, and took from him an assignment of Contract No. 90 for the irrigation water. Mielkes currently irrigate 98.44 acres. Under Contract No. 90 with Ravalli Land and Irrigation Company, Mielkes purchased (after Mielkes sold off 10 acres) water to irrigate 50 acres.

While Kalberer was still the owner of the lands, in 1943, Ravalli Land and Irrigation Company had conveyed all of its right, title and interest in its water rights, ditches, easements, headgates and other structures to the State of Montana. The State, under the Water Conservation Board (now DNRC) took over all the water company’s water contracts as part of the Daly Ditch Project. The State had come into the picture as a part of a depression-era effort to establish public work programs through the encouragement of construction of public works. On April 23, 1943, Ravalli Land and Irrigation Company executed a deed, dated October 1, 1942, conveying all of the Ravalli Land and Irrigation Company’s right, title and interest in the Daly Ditch project to the State Water Conservation Board. From that date, the Water Conservation Board, and its successor DNRC, undertook operation of the Daly Ditch Water Project and continued to perform the water contracts with purchasers such as Mielkes through the 1982 irrigation season.

Prior to 1942, the Estate of Margaret Daly (holder of about 1,250 acres) and the Bitterroot Stock Farm (holder of about 2,700 acres), as successors in interest of Marcus Daly, had not contracted with Ravalli Land and Irrigation Company for the purchase of water though these holders had continued to use water from the project on lands not sold by the Stock Farm. At the time of the take-over by the State and prior thereto, the Estate of Margaret Daly and the Bitterroot Stock Farm negotiated contracts with Ravalli Land and Irrigation Company similar to the water purchase contracts held by other water users on the project beginning February 1, 1942.

This project was the only state-owned water project that the State directly operated, maintained and repaired. In this it was unique among all the other projects owned by the State, as other state projects were operated and maintained by the various water users associations. The Daly Ditch Project, however, was never self-supporting; that is, it was never paid for wholly by the water users. From 1943, until the project was given up by the State, the debts exceeded credits by some $600,000.

In 1979, the legislature directed the DNRC to dispose of the Daly Ditch Project and to cancel and write off accounts receivable carried on the books of the Department. The legislature further directed that if the DNRC was not able to dispose of the project as provided by law, then the Daly Ditch Project should be abandoned prior to January 1, 1983. By quitclaim deed dated December 23, 1982, the DNRC transferred all of its right, title, and interest in and to the Daly Ditch Project to the Ravalli Water Users Association by quitclaim deed dated December 31, 1982. Ravalli Water Users Association transferred all of its right, title and interest in and to the Daly Ditch Water Project to the Daly Ditches Irrigation District. That District, which is the defendant in this case, is now the operator of the Daly Ditch Project.

The water contract assigned by John Kalberer to Percy A. Mielke is one of the water contracts taken over by the State of Montana as a result of the transfer from the Ravalli Land and Irrigation Company to the State Water Conservation Board. The State of Montana furnished water continuously to Mielkes under Contract No. 90 from 1946 through 1982 by means of the Daly Ditch Project. Mielke terminated his payments as billed in 1980, though he had previously paid in every year since 1946. The Mielkes received water for irrigation from the project for the irrigation seasons of 1981 and 1982, but made no payment. By letters dated in 1982, the Mielkes asserted that they were not claiming contract water but were claiming water under an 1864 water right and therefore they had no obligation to pay any further water charges under the water contract.

The Mielkes had originally petitioned to join the Irrigation District, but have since withdrawn their petition and refused to join the District. Based on their refusal to join the District and their failure to make payments, the Irrigation District locked the headgate that diverts water to the Mielkes’ property. By stipulation, during the pendency of this litigation, irrigation waters have been supplied to the Mielkes.

The payments by Mielkes under Contract No. 90 have never exceeded charges for water in excess of 50 acre units. The District Court found:

“60. The Mielkes and their predecessors have never paid any amount to anyone, nor have they or their predecessors ever been billed for any irrigation used over and above the 50 acre units. Therefore, the Mielkes have had the free and unencumbered use of irrigation water since the Spring of 1946 and their predecessors had and enjoyed such status prior to that date. Assuming Mielkes’ total water use is 200 miner’s inches for 98.44 acres, the amount of water used on 48.44 acres thereof is 49% of the total or 98 miner’s inches.”

The District Court entered judgment for Mielkes on the basis of adverse use for 93 (sic) miner’s inches as a first priority right in Gird Creek, for up to four flood irrigation applications, for seven days each, on their lands between May 1 and September 30 of each year. This is the judgment from which appeal is taken.

Since the basis of the District Court judgment is adverse use, we will discuss further facts pertaining to such judgment as found by the court from the evidence as we discuss the legal issues here.

The acquisition of title by adverse possession or title by prescription is a common law development associated with the ownership and possession of land. At first ownership and possession went hand-in-hand. The common law early recognized that one could be the owner of land and be only in constructive possession of it. There evolved the principle that constructive possession follows title and can only be overcome or defeated by actual possession adverse thereto.

In Verwolf v. Low Line Irrigation Co. (1924), 70 Mont. 570, 578, 227 P. 68, 71, we said that a water right, a right to the use of water, while it partakes of the nature of real estate, is not land in any sense, and that the right to the use of water for irrigation or other lawful purposes may be lost by one and acquired by another by prescription. In determining whether a water right is gained by prescription, it is usually necessary for the courts to apply principles that developed out of statutes or case law relating to the adverse use of real estate.

A title acquired by prescription is sufficient against all, Section 70-19-405, MCA, and our statutes recognize two ways for the acquisition of such title. One may claim adverse use founded on an instrument or judgment, Section 70-19-407, MCA, or by actual occupancy under claim of title not founded on an instrument or judgment. Section 70-19-409, MCA. The difference seems to be that occupancy under a claim founded on instrument or judgment, subject to statutory limitations, will provide title to the whole tract, whereas occupancy under a claim not founded under an instrument or judgment gives title only to the land actually occupied.

In this case, Mielkes contend their title is derived under both methods. They apparently founded a claim of right under the Sherrill appropriation of 1864, though the legal title to this appropriation appears to have been severed from the lands when the Estate of Marcus Daly placed title to the lands in one corporation, and title to the water rights in another. Mielkes have contended before the District Court and in this Court that despite the documentary separation of the water rights from the lands, in actual practice since 1901 there has been no actual severance. Accordingly, the Mielkes have filed a statement of claim for existing water rights before the water courts of this State for 200 miner’s inches of Gird Creek for use between May 1 and September 30 of each year based on the 1864 Jacob Sherrill right. Mielkes argue that the severance by conveyance of the water rights did not give rise to any physical change in the quality, quantity or availability of water used on Mielkes’ lands, nor to their periods or purposes of use. Bitterroot Stock Farm had no legal title to any water rights nor contract for water after 1901, until 1942, just before the transfer to the State. On this basis, Mielkes contend that the transfers by the Daly interests in 1901 merely severed the title to the land and water rights but did not sever the use of the water to which it had been appurtenant, especially as to Gird Creek.

The District Court made reference to this argument in its findings and conclusions, but apparently did not rely on the same. If it had determined that the Mielkes’ adverse use of water was founded on an instrument giving rise to color of title, the result, applying principles derived from adverse use in land cases, would be that the Mielkes would be entitled to 200 miner’s inches of water without reduction, based on a use right. Instead the District Court reduced the Mielke claim to 93 [sic] miner’s inches, and from that we must conclude that the District Court, though not clearly indicating, did not find a title based on adverse use founded on an instrument or judgment. In any event, we determine that any claim of adverse use by the Mielkes in this case cannot be founded on the Sherrill appropriation which was severed from the land in the Daly transfers. The annual payment by the Mielkes on Contract No. 90 is a recognition of the paramount right of the State of Montana to sell the water as a separate property interest from the land. For that reason, we are not concerned with a dispute of fact between the parties as to whether there are sufficient waters in Gird Creek to supply 200 miner’s inches of water as claimed by the Mielkes. The defendants contend that a considerable portion of the water in Gird Creek is not Gird Creek water but is supplemental water transferred by the project from Skalkaho Creek. Since we determine that Mielkes have not established adverse use to 200 miner’s inches founded on an instrument or judgment, the resolution of the fact issue makes no difference.

We turn then to determine whether Mielkes have established an actual adverse use of the waters under a claim of title not founded on an instrument or judgment. All parties agree that the elements of proof required to sustain a claim of prescriptive water rights are:

1. A minimum of 5 years continuous use (10 years prior to 1953);

2. Exclusive use by the claimant (uninterrupted and peaceable);

3. Open use;

4. Use under claim of right (or color of title);

5. Use that is hostile, that is, an invasion of another’s claimed right which the owner has the opportunity to prevent;

6. Use by the claimant of water at a time when the owner needed the water;

7. Use substantial enough to put the owner on notice of the deprivation; and,

8. The owner must have been in position to maintain an action to prevent the claimant’s usage through the prescriptive period.

Smith v. Krutar (1969), 153 Mont. 325, 457 P.2d 459; Grimsley v. Estate of Spencer (Mont. 1983), [206 Mont. 184,] 670 P.2d 85, 40 St.Rep. 1585.

The facts found by the District Court include the following:

Mielkes had, since the acquisition of their lands, utilized 200 miner’s inches of water per year, at least three to four times during the irrigating season for a period up to seven days each time. The other contract user of irrigation water from Gird Creek was Bitter-root Stock Farm, itself, which had sold the Mielke lands to their predecessor, Kalberer, and had assigned their rights to him for 60 acres of irrigation water (of which 10 acre units had later been disposed). John Roberts of the Bitterroot Stock Farm testified that the Stock Farm had difficulty obtaining enough water downstream from Mielkes to fulfill its needs. The Mielkes and the Bitterroot Stock Farm used the water in rotation, the Stock Farm taking the water when Mielkes were not using it. There was evidence that in most seasons there was enough water for both farms, although on one occasion testified to by Mielke, the Stock Farm had given up its right because there was not enough water left over after the Mielke usage to justify paying an irrigator on the Stock Farm. The irrigation use by the Mielkes of 98.44 acres was open in that there was a county road alongside their acreage and the amount of their irrigation use was open and obvious to persons traveling along that road, including the ditch riders for the District; moreover, the District headquarters was only a short distance from the Mielke farm. The lateral ditch from the headgate on Gird Creek on Mielkes’ land was owned by the Mielkes and except on one occasion, they generally opened the headgate themselves when they needed to take water. Robert Lowery testified that his father, Glen Lowery, had been a ditch rider for the State in the early years of its operation of the project, and his father had told him that the Mielke right was that of “free water” which apparently was interpreted to mean a first right to the waters of Gird Creek. The father apparently believed that the Mielkes had a water right in Gird Creek based on some color of title not then explained.

Equally apparent from the record, however, are two factors which militate against a title by prescription in the Mielkes. First, the owner of the Daly Ditch Project during all of the period of claimed adverse use was the State of Montana. While the Bitterroot Stock Farm may itself have had difficulty in getting water because of the Mielke use, the Stock Farm was itself a contract user, and the evidence fails to disclose that any shortage of water which may have occurred for the Stock Farm under its water contract was brought to the attention of the owner of the project, the State of Montana. A substantial question exists whether the State of Montana as owner had notice that the Mielkes were claiming adversely to it with respect to the waters in excess of those provided under Contract No. 90.

Secondly, for 34 years the plaintiffs paid the State of Montana what they were annually billed for the use of the water on their lands under a contract based upon 50 acres. By payment to the owners of the water right, the plaintiffs recognized in them a superior right to sell the waters to the Daly Ditch system.

In Sherlock v. Greaves (1938), 106 Mont. 206, 216, 76 P.2d 87, 90-91, where the defendants maintained a right to waters in a ditch by adverse possession, this Court said:

“Since the claim of the defendants, if any, to the waters of Crow Creek is not made under an appropriation by them, any claim to the use of the water as against the plaintiffs, who are not the owners of the ‘Swede Ditch,’ cannot be adverse to the rights of such plaintiffs. The defendants by their payment to the owners of that ditch recognize in those plaintiffs and their predecessors in interest a paramount right, and therefore there was no basis for a finding of adverse possession by the defendants. (Citing a case.)”

It is, of course, true that the statement of the State’s ditch rider, Lowery, seemed to indicate his belief that the Mielkes were entitled to “free water” as of right. It is also true that title by prescription can arise from mistaken assumption of title. See Calfee v. Duke (Texas 1976), 544 S.W.2d 640.

However, in this case we have the additional problem that when the Mielkes took waters from Gird Creek over the years in this case, they were taking waters admittedly paid for by them as contract waters, and mixed with waters to which they now claim adverse use. In that regard, the possession of the Mielkes to the use of the water was not exclusive, but was in participation with the owner, the State of Montana. Title by an adverse use cannot then be gained, if we apply to this case the principles that are applicable to adverse use of lands: “[W]hen two persons are in possession the seisin follows the owner. Where either owned a better title than the other, the law will refer the joint occupancy to the right of such owner.” 5 Thompson on Real Property, Section 2547, at 626 (1979).

The rule is “that in case of a mixed or common possession of land by both parties to a suit, the law adjudges the rightful possession to him who holds legal title, and no length of time of possession can give title by adverse possession as against the legal title.” Vider v. Zavislan (1961), 146 Colo. 519, 362 P.2d 163, 166. See also Carley v. Davis (Okla. 1969), 452 P.2d 772, 776, (Mixed or shared possession is not the kind of possession that gives rise to title by prescription).

We stated in Smith v. Krutar, (1969) 153, Mont, at 330, 457 P.2d 459 at 462:

“Developing case law in this state provides three basic prerequisites for establishing adverse user: (1) that the claimant used water at a time when the plaintiff had need of it; (2) that he used it in such a substantial manner as to notify plaintiff that it was being deprived of water to which it was entitled; and (3) that during all of that period, plaintiff could have maintained an action against him for so using the water. (Citing King v. Schultz (1962), 141 Mont. 94, 101, 375 P.2d 108, 111.)”

If the use of property of another was permissive in the beginning, the use can be changed into a hostile and adverse use only by the most unequivocal conduct of the user; and the evidence of adverse use must be strictly construed against the adverse user, and every reasonable intendment should be made in favor of the true owner. Price v. Western Life Insurance Co. (1944), 115 Mont. 509, 514, 146 P.2d 165, 167.

There is no showing here that the owner, the State of Montana, was notified by the Mielkes, that it as owner was being deprived of water to which it was entitled. Bitterroot Stock Farm may have had notice of such use; but notice to another contract user would not constitute notice to the State. The Mielkes’ claim to title by prescription to the excess water over their contract supply, therefore, fails.

The defendants, State of Montana and DNRC raise a further issue that a title by adverse possession may not be acquired against the State. Mielkes object to the raising of this issue upon the grounds that it was not considered in the District Court. Our search of the record reveals that while the issue may have been raised in briefs, it does not appear that the District Court considered the issue. Because we have decided the question of title by adverse use on other grounds foregoing, we have not in this opinion considered the issue of whether an adverse title under the circumstances of this case may be acquired against the State.

The District Court concluded that Contract No. 90 had been terminated and was no longer in effect. No appeal was taken from that portion of the District Court judgment.

We reverse the judgment of this cause and remand the same to the District Court with directions to enter judgment in favor of the defendants.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON and HUNT concur.

THE HON. HENRY C. LOBLE,

District Judge, sitting for MR. JUSTICE HARRISON, dissenting:

I respectfully dissent.

The District Court entered judgment in favor of the Mielkes, on the basis of adverse use, granting them 93 [sic] miner’s inches as a first priority right in Gird Creek. Our review is confined to determining whether there is substantial credible evidence to support this decision. Helehan v. Ueland (1986), [223 Mont. 288,] 725 P.2d 1192, 1194, 43 St.Rep. 1679, 1682. “In so determining, we must view the evidence in the light most favorable to the prevailing party.” Id. “Further, the evidence may conflict with other evidence and still be deemed ‘substantial.’ ” Id.

The majority reverses the District Court’s judgment on the basis of “two factors which militate against a title by prescription in the Mielkes.” First, the majority states that “a substantial question exists whether the State of Montana as owner had notice that the Mielkes were claiming adversely to it with respect to the waters in excess of those provided under Contract No. 90.” (Emphasis added.) However, the record shows that the State had more than adequate notice. Mielke testified that he irrigated all of his land, 98.44 acres, every year since 1946, using about 200 miner’s inches of Gird Creek water each year. He paid only for water sufficient to irrigate 50 acres [about 107 miner’s inches]. Everytime he took water, he told the State what he was going to do. He opened his own headgate and turned water from Gird Creek into his ditch without permission.

Robert Lowery, who was the ditch rider for the State in the years 1946-1950, testified that his father, who was the manger of the Daly Ditch Project and also employed by the State, told him that Mielke was entitled to free water. Robert Lowery also testified that Mielke was only to pay for a portion of the water used and the balance was a free water right. Lowery gave Mielke permission to operate the headgate in recognition of his free water right. Lowery only allowed people with a free water right to open their own headgates — others operating on a contract right were not allowed to open their own headgate. Based on the record and the District Court’s decision, the term “free water” means water that Mielke had a right to use without charge as contrasted to water he paid for under his Contract No. 90.

In addition, and as the majority opinion stated, “there was a county road alongside [Mielkes’] acreage and the amount of their irrigation use was open and obvious to persons traveling along that road, including the ditch riders for the District; moreover, the District Headquarters was only a short distance from the Mielke farm.” (Emphasis added.) Specifically, Mielke testified that District Headquarters was about one-third of a mile from his property and anyone driving on the road could see him, with a shovel, irrigating. He also testified that State Personnel, including the ditch riders, drove back, and forth on the road. “[T]here ain’t a day that goes by that there ain’t some of their crew that goes over.”

In conclusion, the record shows that the State had more than adequate notice.

The second factor, which, according to the majority opinion, militates against adverse use is that “plaintiffs paid the State ... for the use of the water on their lands under a contract based upon 50 acres.” (Emphasis added.) True, “under Contract No. 90 . . . Mielkes purchased . . . water to irrigate 50 acres.” (Emphasis added.) However, “Mielkes currently irrigate 98.44 acres.” (Emphasis added.) Mielke testified that the most water he ever paid the State for was that sufficient to irrigate 50 acres. The ditch rider, a State employee, testified that: 1) Mielke was only to pay for a portion of the water he used; 2) the balance of the water was a free water right; 3) the free water was in addition to what Mielke got under Contract No. 90, and 4) Mielke had about a 100 inch free water right. It was this free water right of about 100 inches, not the purchased contract water, that Mielkes claimed on the basis of adverse possession. On that basis, the District Court granted such claim. Mielkes did not claim a right by adverse possession to water purchased from the State and used to irrigate 50 acres. Rather, they claimed a right, by adverse possession to approximately 100 miner’s inches used to irrigate the remaining 48.44 acres of their land. Therefore, the fact that Mielkes paid for their contract water does not affect their claim of adverse possession of unpurchased non-contract water. Even the majority recognized this fact. They stated: “[Mielkes] were taking waters admittedly paid for by them as contract waters, and mixed with waters to which they now claim adverse use.” The majority opinion also referred to “Mielkes’ claim to title by prescription to the excess of water over their contract sup ply . . .” Furthermore, the majority questioned whether the State had notice that “the Mielkes were claiming adversely to it with respect to waters in excess of those provided under Contract No. 90.” The majority’s last argument is that the “possession of Mielkes to the use of the water was not exclusive, but was in participation with the owner, the State of Montana.” The majority asserts that when two persons are in possession, the seisin follows the owner. In support, they cite Carley v. Davis (Okla. 1969), 452 P.2d 772; and Vider v. Zavislan (1961), 146 Colo. 519, 62 P.2d 163. The defendant in Carley testified that his land was his continual place of work until he put it in Soil Bank and that his cattle were on the land all one summer. The plaintiff testified that there had never been a year since 1944, that he did not have possession of such tract. The appeals court affirmed the trial court’s determination that plaintiff’s claimed “exclusive” possession was shared by others and thus, not sufficient for prescriptive title purposes.

In Vider, the defendant held title to the disputed tracts of land and built his temporary drift fences upon such land. The plaintiff had actual or constructive possession of the land. Under such circumstances, the Colorado Court applied the following rule:

“[I]n case of a mixed or common possession of land by both parties to a suit, the law adjudges the rightful possession to him who holds legal title, and no length of time of possession can give title by adverse possession as against the legal title. (Emphasis added.)”

These two out-of-state cases cited by the majority are not applicable to the case at hand. First, Carley and Vider adjudicate ownership of land. The water at issue in this case was not held in ownership by the State in its role as a sovereign. The State obtained the use of this water from Ravalli Land and Irrigation Co. and sold the use thereof, as a ditch company, in the same manner as its predecessor. Only the use of the water for purposes of sale was acquired by the State. Norman v. Corbley (1905), 32 Mont. 195, 203, 79 P. 1059, 1060. Secondly, there was no mixed or common possession, by the Mielkes and the State, of the water at issue. Mielkes had exclusive use of the water. Mielke testified that he irrigated all of his land every year since 1946. There is no evidence that the State also used this water.

The District Court concluded that the Mielkes satisfied all requirements for adverse possession of a water right for 93 [sic] miner’s inches. “This Court will not substitute its judgment for that of the trier of fact. We will consider only whether substantial credible evidence supports the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings.” Jensen v. Jensen (Mont. 1981), [-Mont. _,] 629 P.2d 765, 768, 38 St.Rep. 927, 930. Further, the appellant must overcome the presumption that the District Court’s order is correct. Jensen v. Jensen (1979), 182 Mont. 472, 597 P.2d 733. “Finally, a reviewing court is never justified in substituting its discretion for that of the trial court.” Marriage of Ward (Mont. 1986), [223 Mont. 434,] 725 P.2d 1211, 1213, 43 St.Rep. 1825, 1827. “In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.” Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541.

Because there is substantial evidence supporting the District Court’s decision and because the District Court did not act arbitrarily, I would affirm its decision granting Mielkes a water right of 93 [sic] miner’s inches on the basis of adverse possession.

However, such decision brings up another question — whether adverse possession can be acquired against the State under the facts of the case. Mielkes argue that this issue was not set forth, before trial, as a defense and, therefore, was waived. The issue was raised in predecision briefs, but it was not ruled upon by the District Court. Therefore, I would remand this case for findings of fact and conclusions of law on the question of whether such defense was waived and, if not waived, for findings and conclusions on whether adverse possession can be obtained against the State under the facts of this case. See, State v. Shirokow (1980), 26 Cal.3d 301, 162 Cal.Rptr. 30, 605 P.2d 859, 866.

MR. JUSTICE MORRISON, concurs in the foregoing dissent of THE HON. HENRY C. LOBLE.