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Mooney v. Ashcraft

Supreme Court of Montana

June 9, 2017

BRIAN MOONEY, Plaintiff and Appellee,
v.
SUSAN ASHCRAFT, Defendant and Appellant.

          Submitted on Briefs: April 26, 2017

         APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Judith Basin, Cause No. DV-2015-9 Honorable Jon A. Oldenburg, Presiding Judge

          For Appellant Jack R. Stone, Attorney at Law, Lewistown, Montana

          For Appellee Craig R. Buehler, Attorney at Law, Lewistown, Montana

          OPINION

          JIM RICE, JUSTICE

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Appellant Susan Ashcraft (Ashcraft) appeals the judgment of the Tenth Judicial District Court, Judith Basin County, granting a right to use the well located on her property to Appellee Brian Mooney (Mooney). We reverse.

         ¶3 Ashcraft owns Lots 4-6 and 11-13, Block 4, of the Original Townsite of Moccasin, Montana. Mooney owns Lots 7-10 and 14-18 of Block 4, which lie on either side of Ashcraft's property. Lot 11, one of Ashcraft's lots, contains a well that has served multiple properties in Moccasin over time, including the Moccasin School, which is now closed, and Mooney's property.

         ¶4 Ashcraft's predecessors-in-interest include Emma Todd (Todd) and Phillip J. Mills (Mills), who held the property as tenants-in-common. In 1997, Todd and Mooney's father, E. L. "Eddie" Mooney, signed a document entitled "Request for Water Usage, " which stated in full:

I, Emma Todd, do hereby grant E. L. Eddie Mooney the right and privilege to drawing water from my well located in Moccasin, MT. This privilege shall be for personal use only and shall endure as long as E.L. Mooney lives on and owns the property described as Lots 7, 8, 9[, ] and 10[, ] in Block 4 of the original townsite of Moccasin, Judith Basin County, Montana.

         ¶5 This document was not signed by Todd's co-tenant, Mills, and, further, the record indicates Mills was not advised of and did not know about Todd's action. On August 9, 2002, Todd executed a Power of Attorney appointing her niece, Mona Harrell (Harrell), as her attorney-in-fact. Harrell was authorized to make decisions concerning Todd's real estate interests. At some point, Todd hesitantly told Harrell that she had given permission to Eddie Mooney to use the well occasionally for purposes of building a garage. In 2002-2003, Mooney dug a trench for a water line from the well to his father's property based upon the verbal permission of Todd. During this time Ashcraft approached Mooney and told him he had no right to construct the ditch, but took no further action with regard to the ditch.

         ¶6 In March of 2003, Ashcraft purchased Mills' half-interest in the property, becoming a co-tenant with Todd. In May 2003, she sent Mooney a letter informing him that Harrell was Todd's attorney-in-fact and inquiries involving Todd's half-interest in the property should be directed to Harrell. The record indicates Ashcraft, like Mills, was not advised and did not know about the "Request for Water Usage" document, which had been signed by Todd and Eddie Mooney. In June of 2003, Mooney purchased Lots 7-10 and 14-18 from his father, which terminated the right to use the well granted under the 1997 "Request for Water Usage, " according to its terms.

         ¶7 In November of 2003, despite Harrell's appointment as Todd's attorney-in-fact, and Ashcraft's letter advising Mooney to deal with Harrell, Todd and Mooney signed another "Request for Water Usage" that was similar to the first one, and which provided, in full:

I, Emma Todd, do hereby grant Brian K. Mooney the right and privilege to drawing water from my well located in Moccasin, Montana. This privilege shall be for personal use only and shall endure as long as Brian K. Mooney lives on and owns the property described as Lots 7, 8, 9, 10, 14, 15, 16, 17[, ] and 18[, ] ...

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