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Musselshell Ranch Company, A v. Nataliya Seidel-Joukova

October 9, 2012

MUSSELSHELL RANCH COMPANY, A MONTANA CORPORATION; MARY T. COOLEY, DANIEL COOLEY, BRIAN COOLEY, DARREN COOLEY, CALLIE RECH, D/B/A/ COOLEY RANCH, PLAINTIFFS AND APPELLANTS,
v.
NATALIYA SEIDEL-JOUKOVA, A/K/A NATALIYA SEIDEL JOUKOVA, AND JOHN DOES 1-5, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Fourteenth Judicial District, In and For the County of Musselshell, Cause No. DV-09-43 Honorable Randal I. Spaulding, Presiding Judge

The opinion of the court was delivered by: Patricia Cotter

October 9 2012

Submitted on Briefs: August 15, 2012

Filed:

Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 This is the second appeal by these parties to this Court. A full factual recitation, procedural background and legal analysis is set forth in Musselshell Ranch Co. v. Seidel-Joukova, 2011 MT 217, 362 Mont. 1, 261 P.3d 570 (Musselshell Ranch I). In this appeal, Musselshell Ranch and various individuals appeal the Fourteenth Judicial District Court's denial of their request for attorney fees. We affirm.

ISSUE

¶2 The dispositive issue on appeal is:

¶3 Did the District Court err in denying attorney fees to the Ranch?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 As noted above, an extensive factual background for this case is available in Musselshell Ranch I; however, for purposes of this Opinion, we provide a brief overview of pertinent facts. Plaintiffs/Appellants, i.e., Musselshell Ranch, the Cooleys and Rech (collectively the Ranch), own the right to appropriate water from the Musselshell River. The Ranch is the successor-in-interest to these rights which have been in place for more than 100 years with John Cooley being one of the original owners in 1891. The Ranch's water rights are utilized through an irrigation ditch generally known as the Cooley-Goffena Ditch (Cooley ditch). With minor alterations, the Cooley ditch has been in its current location consistently and continuously for more than 100 years.

¶5 The Cooley ditch is currently accessible by Ranch personnel via two routes-a northern route through Joukova's property entering a west end access gate, and a southern route created by the Montana Department of Transportation (MDOT) as part of MDOT's widening of Highway 12 in 2002. MDOT contoured the sides of the Cooley ditch and installed a lining and an underground pipeline as well as an east end access gate requested by the ditch users.

¶6 In 2006, defendant/appellee Nataliya Joukova purchased property through which a portion of the Cooley ditch flows. Shortly after taking possession of the property, Joukova graveled the two-lane road running along the north bank of the Cooley ditch that the Ranch had historically used to access the ditch. She also created an approach from the southern end across the pipeline installed by MDOT. She placed a permanent culvert in the Ranch's ditch and then covered it with a "sturdy rock bridge" that allowed her to drive over the Cooley ditch to access another section of her property. These, and other actions by Joukova, sparked serious disagreements with Ranch personnel and in August 2009, the Ranch brought suit against Joukova claiming she was interfering with the Ranch's easement rights in violation of §§ 70-17-101(11) and 70-17-112, MCA.

¶7 The District Court ruled in favor of Joukova on some issues and in favor of the Ranch on others. Specifically, the District Court concluded that the culvert and bridge could remain in place despite the Ranch's demand that it be removed. In response to the Ranch's claim that access to their ditch was blocked by a locked gate put in place by Joukova and that Joukova had removed a separate gate at the west end of the property, the court ruled that Joukova had to provide the Ranch with access through the locked gate and reinstall the removed gate. As a result of these and other rulings, the court concluded neither party had "prevailed" as required by § 70-17-112(5), MCA, and declined to award attorney fees and costs. Section 70-17-112, MCA, is the Montana statute expressly prohibiting interference with canal and ditch easements. Section 70-17-112(5), MCA, provides: "If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney's fees."

ΒΆ8 The Ranch appealed the District Court's ruling in favor of Joukova as to the culvert and bridge but it did not appeal the court's ruling pertaining to attorney fees. On appeal, this Court reversed the District Court and remanded the matter with instruction that Joukova remove the culvert and bridge. We concluded that the installation of the culvert and ...


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