Introduction

In Musselshell Ditch Co. v. JD Bar D, the Montana Supreme Court affirmed a district court order requiring a servient landowner to remove multiple structures (a wooden bridge, cement pump box, pump, buried pipeline, and overhead electrical conduit) placed in and around an irrigation ditch. The ditch is owned and maintained by easement holder Musselshell Ditch Company (MDC) and crosses JD Bar D’s property pursuant to a recorded, express, and exclusive easement.

The central issue was whether JD Bar D’s structures “unreasonably interfered” with MDC’s statutory “secondary easement” rights—namely, the right to enter upon the servient land to inspect, repair, and maintain the ditch—under § 70-17-112, MCA. The Court also addressed the proper role of water rights in that analysis, the effect of written consent as a statutory exception, and fee-shifting for actions brought to enforce the statute.

The decision refines and reinforces Montana’s easement jurisprudence by:

• Reaffirming that encroachments on ditch easements are governed by a reasonableness balancing test that focuses on burdens to the easement holder’s maintenance and operation.
• Clarifying that a landowner’s water rights do not expand or trump the ditch easement holder’s rights; water rights are not “ditch rights.”
• Recognizing written consent as a statutory safe harbor that removes encroachments from challenge under § 70-17-112(2)–(3), MCA.
• Confirming that forcing a ditch owner to litigate can itself constitute unreasonable interference and trigger statutory attorneys’ fees.

Summary of the Opinion

The Court affirmed the district court’s judgment that JD Bar D unreasonably interfered with MDC’s ditch easement in violation of § 70-17-112, MCA. The Court held:

• Exclusive express easement: The recorded easement’s language (“for the exclusive use of the Grantee…for the operation and maintenance of the canal”) is dispositive of its scope; the judiciary will not rewrite clear terms.
• Secondary easement and reasonableness: Under the statute and prior case law, MDC’s right to enter, inspect, repair, and maintain must be exercised reasonably, and the servient owner may not make the easement more inconvenient, costly, or hazardous to use.
• Encroachments here were unreasonable: The permanent structures and the “temporary” bridge were found to complicate and hazard maintenance (including an electrocution risk from an overhead conduit and the need to maneuver around works or exit/re-enter the ditch), amounting to unreasonable interference.
• Written consent matters: While there is no general precondition to “obtain permission” before altering land, § 70-17-112(3), MCA, expressly exempts encroachments consented to in writing by the easement holder. JD Bar D had no such written consent.
• Water rights distinct from ditch rights: JD Bar D’s irrigation water rights did not authorize encroachments into MDC’s exclusive easement absent consent; MDC remains obligated to operate in recognition of JD Bar D’s 1932-decree water use, but no breach was shown.
• Attorneys’ fees: As the prevailing party in an action to enforce § 70-17-112, MCA, MDC was entitled to reasonable attorneys’ fees and costs.

Analysis

Precedents Cited and Their Influence

• Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, 362 Mont. 1, 261 P.3d 570. This is the cornerstone precedent. It articulates the balancing test for ditch easements under § 70-17-112, MCA: secondary easement rights must be exercised reasonably, and servient owners may not make the easement more inconvenient, costly, or hazardous. It also:
  • Endorses a general guide from the Restatement (Third) of Property: temporary, easily removed improvements are less likely to unreasonably interfere; permanent, difficult-to-remove improvements are more likely to do so.
  • Holds that compelling the dominant owner to defend the easement in court may itself be unreasonable interference.
  • Found a permanent culvert and rock bridge to be an unreasonable encroachment—facts strikingly similar to JD Bar D’s structures here.
• Bardos v. Spoklie, 2024 MT 274; Thibodeau v. Bechtold, 2008 MT 412; State v. Warclub, 2005 MT 149; Faber v. Raty, 2023 MT 227; Lyndes v. Green, 2014 MT 110. These cases provide the standards of review: factual findings are reviewed for clear error, viewed in the light most favorable to the prevailing party; conclusions of law, including statutory interpretation, are reviewed de novo. They frame the appellate posture and deference given to the district court’s factfinding.
• State v. Damon, 2025 MT 12. Reaffirms de novo review for questions of law, including statutory interpretation relevant to § 70-17-112, MCA.
• Oberlander v. Hennequin, 2023 MT 45. Clarifies terminology of dominant and servient tenements for easements, grounding the analytic framework.
• Wilkinson, LLC v. Scott & Cindy Erler, LLP, 2021 MT 177; Blazer v. Wall, 2008 MT 145. Summarize the recognized methods of easement creation (express grant, implication, prescription), relevant here because the ditch easement was by express grant, and JD Bar D’s prescriptive counterclaim failed for lack of evidence.
• Frisk v. Thomas, 2024 MT 156; Cremer Rodeo Land & Livestock Co. v. McMullen, 2023 MT 117. Define prescriptive easement elements and “substantial credible evidence.” JD Bar D provided no evidentiary basis for prescription, and the district court’s findings were supported by substantial credible evidence.
• Archer v. Tait, 2024 MT 322; Titeca v. State, 194 Mont. 209 (1981). When an express easement’s terms are specific, those terms are decisive of scope. This supported reading the MDC easement as “exclusive” and limited to operation and maintenance, foreclosing JD Bar D’s theory that the easement wasn’t exclusive.
• Little Big Warm Ranch, LLC v. Doll, 2018 MT 300. Water rights are appurtenant to land but distinct from easement rights; “water rights are not ditch rights.” That distinction was key to rejecting JD Bar D’s argument that its irrigation rights authorized encroachments.
• Gabriel v. Wood, 261 Mont. 170 (1993). Reasonableness is measured in light of the situation of the property and surrounding circumstances—an anchor for the fact-intensive inquiry.
• Laden v. Atkeson, 112 Mont. 302 (1941); Harrer v. N. Pac. Ry. Co., 147 Mont. 130 (1966). Acknowledge long-standing common-law secondary easement rights for ditch owners, later codified in § 70-17-112, MCA.

Legal Reasoning

1. Exclusive express easement controls scope. The easement expressly grants MDC “exclusive” rights for operation and maintenance. Under Archer and Titeca, clear grant terms set the limits; courts will not rewrite them. This foreclosed JD Bar D’s attempt to characterize the easement as non-exclusive or co-equal for its own works within the easement corridor.
2. Statutory framework: § 70-17-112, MCA. The statute codifies the ditch owner’s secondary easement (to enter, inspect, repair, maintain) and prohibits encroachments or impairments of ditch easements, except where the easement holder provides written consent. The Court reaffirmed that reasonableness is the governing lens—adopted in Musselshell Ranch—to determine if a servient owner’s actions amount to an impermissible impairment or interference.
3. Reasonableness applied to the facts. The district court found—and the record supported—that JD Bar D’s structures:
   • Were permanent (pump box, pump, pipeline, conduit) or at least heavy and cumbersome to move (bridge),
   • Made maintenance more inconvenient, including forcing MDC to “get around” structures or exit/re-enter the ditch corridor,
   • Introduced a safety hazard (electrocution risk from an overhead conduit), and
   • Required special care to avoid damaging buried works.
   Under Musselshell Ranch’s guideposts, such permanent or hazard-creating encroachments, even if labeled “temporary,” are unreasonable interferences because they increase cost, inconvenience, or danger to the ditch owner’s maintenance activities.
4. Written consent is a statutory exception, not an element. JD Bar D rightly argued there is no universal legal requirement to obtain prior permission before acting on one’s land. But § 70-17-112(3), MCA, creates a safe harbor: if the ditch owner consents in writing, the encroachment is statutorily exempt from challenge. The district court properly considered the absence of written consent as relevant because, had it existed, the statute would have foreclosed liability without further balancing. Absent consent, the reasonableness inquiry proceeds—and here favored MDC.
5. Water rights do not authorize ditch encroachments. The Court drew a sharp line between property rights and water rights. JD Bar D’s irrigation right did not confer rights to install works within MDC’s exclusive easement without consent. The 1932 decree requiring MDC to operate recognizing JD Bar D’s water use remained intact; no evidence showed MDC violated it, and MDC suggested feasible alternatives for JD Bar D to divert water without the offending encroachments.
6. Litigation as interference and fee-shifting. Echoing Musselshell Ranch, the Court recognized that forcing the ditch owner to litigate to protect its easement rights may itself constitute unreasonable interference. Consequently, § 70-17-112(5), MCA, entitled MDC, as the prevailing party in enforcing the statute, to reasonable attorneys’ fees; the fee award of roughly $40,000 was affirmed.

Impact and Practical Significance

• For servient landowners (e.g., ranchers and irrigators):
  • Do not assume water rights authorize placing works within a ditch easement. The two bodies of rights are distinct.
  • Before installing structures in or near a ditch easement, seek the ditch company’s written consent. Written consent is a statutory safe harbor.
  • Design any necessary infrastructure to be truly temporary, easily removable, and sited to avoid maintenance routes and hazards. Even “temporary” bridges that require heavy equipment or rerouting can be unreasonable.
  • Expect fee-shifting if your encroachments force litigation and you lose under § 70-17-112, MCA.
• For ditch companies and easement holders:
  • Maintain clear records of easement scope, especially exclusivity language, and of historic maintenance practices.
  • Adopt transparent written-consent policies and forms for landowner improvements to promote cooperation and reduce disputes.
  • Document how proposed or existing encroachments increase maintenance cost, inconvenience, or hazard; photographs and testimony were pivotal here.
• For courts and counsel:
  • Reasonableness remains fact-intensive; the Restatement’s temporary/permanent rubric and the “costly, inconvenient, hazardous” factors are central.
  • Exclusive easement language is decisive; courts should avoid re-casting plain terms.
  • Distinguish water-rights decrees from easement rights, while ensuring ditch operations still accommodate decreed uses where required.
• Legal landscape: This case does not announce a new doctrine so much as it clarifies and strengthens the application of Musselshell Ranch to modern irrigation works—pump boxes, pipelines, and electrical conduits—while elevating the practical importance of written consent as a statutory shield and emphasizing fee exposure for unreasonable encroachments.

Complex Concepts Simplified

• Easement: A non-possessory right to use someone else’s land for a specific purpose (here, operating and maintaining a ditch).
• Dominant vs. servient tenement: The dominant tenement benefits from the easement (MDC); the servient tenement bears the burden (JD Bar D’s land).
• Exclusive easement: Grants the easement holder sole rights for the specified purpose within the easement area, limiting the servient owner’s inconsistent uses.
• Secondary easement: The ditch owner’s corollary right to enter the servient land to inspect, repair, and maintain the ditch—codified in § 70-17-112(1), MCA.
• Encroachment/impairment: A structure or action that occupies or affects the easement area in a way that burdens or interferes with the easement holder’s use—prohibited by § 70-17-112(2), MCA, unless consented to in writing.
• Reasonableness balancing: The test for whether a servient owner’s use is permissible: does it needlessly increase cost, inconvenience, or hazard to the easement holder’s maintenance? Fact-specific and contextual.
• Prescriptive easement: An easement acquired by long-term, open, notorious, adverse, and continuous use over a statutory period; JD Bar D failed to prove one.
• Fee-shifting: The prevailing party in an action enforcing § 70-17-112, MCA, is entitled to reasonable attorneys’ fees (§ 70-17-112(5), MCA).

Conclusion

Musselshell Ditch Co. v. JD Bar D reinforces a coherent and predictable framework for ditch easement disputes in Montana. The Court:

• Reaffirmed that servient owner encroachments are judged by a reasonableness standard focused on whether they increase the ditch owner’s maintenance cost, inconvenience, or hazard.
• Clarified that water rights do not authorize interference with an exclusive ditch easement; water rights and ditch rights are distinct.
• Recognized that written consent operates as a statutory safe harbor, removing encroachments from the ambit of § 70-17-112(2), MCA.
• Confirmed that litigation compelled by unreasonable encroachments may itself be an interference, supporting fee awards under § 70-17-112(5), MCA.

Practically, the decision counsels servient landowners to seek written consent and design truly temporary, low-burden works, and it encourages ditch companies to maintain clear easement records and consent processes. Doctrinally, it solidifies Musselshell Ranch’s balancing test and applies it to contemporary irrigation infrastructure, thereby providing robust guidance for future disputes at the intersection of property and water management.