Reverse Adverse Possession of Ditch Easements Requires Uniform, Conspicuous Exclusion; “Prevailing Party” Fees Under § 70‑17‑112, MCA, Turn on Statutory Claims Alone

Introduction

In Apecella v. Overman, 2025 MT 219, the Montana Supreme Court affirmed a declaratory judgment recognizing an irrigation ditch easement across a neighbor’s land, rejected defenses of extinguishment by abandonment and reverse adverse possession, and upheld a six‑figure attorney fee award under Montana’s ditch interference statute, § 70‑17‑112, MCA. The decision clarifies two important statewide rules:

To extinguish a ditch easement by reverse adverse possession, the servient owner must prove uniform, conspicuous exclusion of the easement’s use for the full statutory period; sporadic or equivocal hostility will not suffice.
For fee‑shifting under § 70‑17‑112(5), MCA, “prevailing party” status is measured by success on claims brought under that statute; dropping or losing separate, non‑statutory tort claims does not defeat fee entitlement, and tailoring the scope of an easement to proven use affects only the extent of relief, not prevailing status.

The dispute arose in Ravalli County between adjacent landowners over the historic Decker Ditch conveying Roaring Lion Creek water. After the servient owners filled in the ditch and posted “no trespassing,” the dominant owners sued to confirm their ditch easement, enforce their secondary maintenance rights, and enjoin interference. Following a bench trial, the District Court ruled for the ditch users on all statutory issues and awarded $189,935.32 in fees and costs. The Supreme Court affirmed in full.

Summary of the Opinion

The Court held:

The Apecellas proved a ditch easement across the Overman property by both implied prior use (at the 1966 severance of the Boldt ranch) and prescription; Overman did not appeal easement creation but argued extinguishment.
Overman failed to prove extinguishment by abandonment: the record lacked clear and convincing evidence of both nonuse and decisive acts demonstrating intent to abandon.
Overman failed to prove “reverse adverse possession” of the easement: adversity was not continuous, exclusive, open, and uninterrupted for five years because water repeatedly flowed to the dominant parcel and Overman cooperated in deliveries during the claimed period.
Overman violated § 70‑17‑112, MCA, by filling in the ditch and impairing the dominant estate’s secondary easement to enter, inspect, repair, and maintain; a permanent injunction was proper.
The Apecellas were the “prevailing party” on their statutory ditch claims and entitled to attorney fees under § 70‑17‑112(5), MCA; success is measured by statutory claims, and tailoring the easement’s scope to the existing pipe does not negate prevailing status.

Factual Background and Procedural Posture

The Decker Ditch originates at Roaring Lion Creek and runs about a mile, entering the Overman property and splitting at a “bifurcation point.” One leg turns north to serve northern neighbors; the other historically ran east across Overman’s land through a pipe under a rock wall onto the Apecella property, where it joins the “Spring Ditch.”

The Apecellas own a share (127 GPM) of an 1897 irrigation water right diverted at the Decker Ditch headgate (404 GPM total among subdivision lots). Overman holds a separate, equal‑priority 1897 right (55 GPM) through the Decker Ditch. The parties agree water rights and ditch rights are distinct property interests.

After the Apecellas moved in (2020), they received water briefly upon request in May 2021; days later Robinson filled the ditch with dirt and posted “no trespassing.” The Apecellas sued for declaratory and injunctive relief under § 70‑17‑112, MCA, and alleged common‑law tort claims they later chose not to pursue. The District Court (March and May 2024 orders) recognized an implied and prescriptive ditch easement to the Apecella boundary, found statutory interference, enjoined Overman, and awarded statutory fees. Overman appealed the extinguishment defenses and fee award.

Analysis

Precedents Cited and Their Role

Easement creation:
- Thomas Mann Post No. 81 v. Knudsen Family L.P. (2022): Elements and scope of implied easements by prior use; scope defined by apparent intent and reasonable use at severance.
- Leffingwell Ranch v. Cieri (1996); Wareing v. Schreckendgust (1996): Elements of prescriptive easements (open, notorious, exclusive, adverse, continuous, and uninterrupted for five years), and how permission defeats adversity.
- Lyndes v. Green (2014): Scope measured by extent of historical prescriptive use.
Abandonment and reverse adverse possession:
- Rieman v. Anderson (1997); Shammel v. Vogl (1964): Abandonment requires clear and convincing evidence of both nonuse and decisive acts manifesting intent to abandon; nonuse alone is insufficient.
- Brimstone Mining, Inc. v. Glaus (2003): Reverse adverse possession requires unequivocal hostility; permissive conduct after a hostile act undercuts adversity.
- Public Lands Access Ass’n v. Boone & Crockett Club Foundation (1993) and Letica Land Co. v. Anaconda-Deer Lodge County (2015): Public‑road cases illustrating that uniform, conspicuous exclusion (locked gates, policing, consistent restrictions) over the entire statutory period is necessary; occasional breaches do not defeat sustained adverse control.
- Warnack v. Coneen Family Trust (1994); Meadow Lake Estates HOA v. Shoemaker (2008): Adversity cannot be presumed from failure of other elements; the elements are distinct and all must be proven.
Fee‑shifting under § 70‑17‑112, MCA:
- Engel v. Gampp (2000): “Prevailing party” must prevail on all claims brought under § 70‑17‑112, MCA.
- Musselshell Ranch Co. v. Seidel‑Joukova (2012): Mixed success on multiple statutory theories can defeat fee entitlement; distinguishes statutory claims from other theories.
- Sharon v. Hayden (1990): Defining the ditch right and enforcing the anti‑interference rule satisfies “successful enforcement” for fee purposes; scope tailoring concerns extent of relief, not prevailing status.
- Knudsen v. Taylor (1984): Where both sides obtain significant injunctive relief, there may be no prevailing party—distinguished here.
- Graveley Simmental Ranch Co. v. Quigley (2003): Fees available when the claimant prevails on the § 70‑17‑112 claim even if outcomes on other claims differ.

Legal Reasoning

1) Abandonment: No decisive intent, no extinguishment

The Court emphasized the high bar for abandonment: clear and convincing evidence of both nonuse and decisive, conclusive acts evidencing intent to abandon. Temporary “drying out” for perc tests, intermittent or reduced flow, and inconsistent maintenance do not amount to abandonment. The evidence showed:

Continuous delivery to the dominant parcel during the Boldt era (pre‑2005) and into the Anderson/Kelm years.
Active steps by Kelm to capture and continue use (installing a pipe, sending demand letters), contradicting any intent to abandon.
Occasional cooperation by Overman and observed flood irrigation consistent with ongoing use.

By contrast with Rieman—where the owner plugged the headgate, removed culverts, and publicly renounced irrigation—Overman’s record fell short of showing abandonment.

2) Reverse adverse possession: “Uniform, conspicuous exclusion” is required

The Court underscored that the servient owner must prove all elements of adverse possession of the easement—open, notorious, exclusive, adverse, continuous, and uninterrupted—for five consecutive years by clear and convincing evidence. Overman failed because:

Adversity was equivocal: she intermittently allowed water to flow, installed a pipe to facilitate it, and opened the ditch on request (2013, 2021).
Continuity and exclusivity were defeated: the dominant parcel received seasonal flows (“trickle at times, more at others”) during the claimed period; Overman jointly worked to clear a blockage to restart flow.
There was no sustained, uniform exclusion comparable to the locked‑gate and policed restrictions in Boone & Crockett and Letica.

The Court distilled the defining principle: sporadic hostile acts or episodic denials do not meet the five‑year requirement; extinguishment demands a consistent, conspicuous regime of exclusion that is incompatible with permitting or facilitating use.

3) Statutory interference, injunction, and fee entitlement

Filling the ditch and posting “no trespassing” impaired both the ditch easement and the statutory “secondary easement” to enter, inspect, repair, and maintain. The injunction was therefore proper under § 70‑17‑112(1)–(2), MCA. On fees:

Under § 70‑17‑112(5), MCA, the prevailing party is the one who successfully enforces the ditch and secondary easements and the anti‑interference rule. The Apecellas did so on all their statutory claims.
Dropping separate tort claims (intentional interference, nuisance) did not undermine prevailing status because those were not claims under § 70‑17‑112; this aligns with Engel and Musselshell Ranch.
Defining the scope of the easement by the existing pipe’s capacity concerns only the extent of relief (as in Sharon), not liability; it does not render outcomes “mixed” for fee purposes and does not create a Knudsen-style no‑prevailing‑party result.

Key Holdings and Doctrinal Clarifications

Abandonment of an easement requires clear and convincing proof of nonuse plus decisive intent to abandon; mere reduction in use or mixed maintenance is insufficient.
Reverse adverse possession of a ditch easement demands a five‑year period of uniform, conspicuous exclusion that is open, notorious, exclusive, adverse, continuous, and uninterrupted; permissive or cooperative conduct within that period defeats the claim.
“Prevailing party” for § 70‑17‑112(5), MCA, is determined by success on the statute’s claims; withdrawing or losing separate tort claims does not defeat fee entitlement. Tailoring the easement’s scope to proven use does not negate prevailing status.

Impact and Practical Implications

For servient landowners (those burdened by ditch easements)

Extinguishing a ditch easement by reverse adverse possession requires an unambiguous, consistently enforced exclusion for at least five years—think locked and posted access controls, no cooperation, and documented, continuous denial.
Mixed conduct—sending water sometimes, cooperating to clear blockages, installing facilitative infrastructure—will defeat the continuity/exclusivity elements.
Misallocating burdens (arguing the ditch user must prove “no abandonment/no adverse possession”) is a losing strategy; the servient owner carries the clear‑and‑convincing burden.

For dominant landowners (ditch users)

Maintain records of use (photos, flow observations, neighbor testimony), maintenance efforts, and communications/demand letters—these refute abandonment and interrupt adverse claims.
Invoke § 70‑17‑112 promptly when interference occurs; prevailing can shift substantial fees (here, nearly $190,000) to the interferer.
Expect the court to tailor scope to proven historical and reasonable use (e.g., pipe capacity); plan engineering solutions accordingly and consider negotiating modifications.

For developers, surveyors, and title professionals

Subdivision plats should accurately depict irrigation infrastructure; internal inconsistencies (narrative vs. map) may be discounted.
Remember that ditch easements and water rights are distinct; a landowner may hold a valid water right yet depend on a neighbor’s ditch easement to deliver it.

Complex Concepts Simplified

Ditch easement vs. water right: The water right authorizes use of water; the ditch easement is the property right to convey that water across another’s land. They are separate rights.
Implied easement by prior use: When a single owner splits land, an obvious, continuous use existing at the time of severance that is reasonably necessary and intended to continue becomes an easement that “runs with the land.”
Prescriptive easement: Earned by using another’s land in an open, notorious, exclusive, adverse, continuous, and uninterrupted manner for five years (seasonal use can qualify). Permission defeats adversity.
Abandonment of an easement: Requires both nonuse and clear, decisive acts showing intent to relinquish permanently (e.g., plugging the headgate and removing culverts). Nonuse alone is not enough.
Reverse adverse possession (of an easement): The servient owner extinguishes the easement by meeting the same elements as prescription, in reverse; the exclusion must be uniform and conspicuous for five uninterrupted years.
Secondary easement: A statutory right (here, § 70‑17‑112, MCA) giving ditch users access over the servient land to enter, inspect, repair, maintain, and operate the ditch and works.
Prevailing party under § 70‑17‑112(5), MCA: The party that successfully enforces the ditch and secondary easements and the anti‑interference prohibition; measured by statutory claims alone.

Application of Standards of Review

Findings of fact (e.g., historical use, credibility of witnesses): Reviewed for clear error, with deference to the trial court and in the light most favorable to the prevailing party.
Conclusions of law (e.g., statutory interpretation; elements of abandonment and adverse possession): Reviewed de novo for correctness.
Entitlement to attorney fees: Question of law, reviewed de novo; reasonableness of the awarded amount is reviewed for abuse of discretion (not at issue here due to stipulation).

Why Overman’s Evidence Failed

Abandonment: Temporary drying for perc tests and inconsistent plat depictions did not establish decisive intent; ongoing use by successors (including Kelm’s installation of a pipe and regular seasonal flows) contradicted abandonment.
Reverse adverse possession: Overman’s own actions—installing a pipe, opening the ditch on request, jointly clearing blockages—demonstrated permissive/cooperative conduct within the claimed period, defeating continuity, exclusivity, and adversity.
Public‑road analogies: Boone & Crockett and Letica involved long‑term, uniform, policed exclusions; Overman’s intermittent deliveries and mixed conduct were the opposite.

Scope of Easement and Practical Delivery

The Court accepted the District Court’s calibration of the easement to the capacity of the existing delivery infrastructure (pipe through the rock wall) and the on‑the‑ground condition of the Ditch in Question. This reflects two settled principles:

For implied easements, scope is anchored to reasonable use contemplated at severance.
For prescriptive easements, scope is measured by the extent of historical use during the prescriptive period.

Notably, the Court recognized testimony that delivery capacity at the headgate (127 GPM allocated to the Apecella lots) would experience transmission losses, and that reconstruction might be needed for higher volumes—issues of engineering that may be revisited by agreement or future litigation, but do not alter prevailing status.

Conclusion

Apecella v. Overman cements two practical rules in Montana irrigation law. First, servient owners seeking to extinguish ditch easements by reverse adverse possession must present clear, consistent, and exclusive exclusion over the full statutory period; permissive flows, ad hoc cooperation, and incremental hostility will not carry the day. Second, “prevailing party” fee entitlement under § 70‑17‑112, MCA, is evaluated within the four corners of that statute: success on the ditch and secondary easements and the anti‑interference prohibition. Narrowing the scope of an easement to proven use does not dilute prevailing status, and separate, non‑statutory tort theories do not factor into the fee calculus.

In a state where historic ditches crisscross modern subdivisions, this decision provides a clear roadmap: document use, maintain the works, avoid equivocal conduct, and recognize that interference with ditch rights carries serious fee‑shifting consequences. The Court’s unanimous affirmance thus reinforces stability in the law of irrigation conveyance while offering pragmatic guidance to landowners, practitioners, and courts.