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Fox v. BHCC II, Inc.

Supreme Court of Montana

September 5, 2017

HERMAN L. FOX, Plaintiff and Appellant,
v.
BHCC II, INC., a Montana Corporation, doing business as THE BILLINGS HOTEL & CONVENTION CENTER, Respondent and Appellee.

          Submitted on Briefs: June 21, 2017

         APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 15-1678 Honorable Michael G. Moses, Presiding Judge.

          For Appellant: Benjamin J. LaBeau, LaBeau Law Firm, PC, Billings, Montana

          For Appellee: Jon E. Doak, Doak & Associates, PC, Billings, Montana

          OPINION

          Michael E Wheat Justice.

         ¶1 Herman Fox filed a complaint against the Billings Hotel & Convention Center (BHCC or Hotel) in December 2015 alleging that BHCC was interfering with his right to distribute irrigation water and maintain the irrigation ditch to which he holds senior rights. Following a non-jury trial in August 2016, the District Court ruled that while Fox has existing and historical ditch and water rights across BHCC's property, as well as an established secondary easement, BHCC was not unreasonably infringing on Fox's easement rights. The court determined that Fox shall have access to the easement property to inspect the easement but BHCC will continue to be responsible for using reasonable efforts to maintain the ditch located on its property. The court further concluded that Fox was not entitled to damages. It awarded BHCC reasonable attorney's fees and costs. Fox appeals. We affirm.

         ISSUES

         ¶2 A restatement of the issues on appeal is:

         ¶3 Did the District Court err when it determined that BHCC did not unreasonably interfere with Fox's secondary ditch easement by planting and maintaining trees and shrubs along the ditch?

         ¶4 Did the District Court err by imposing a duty on BHCC to clean and maintain the ditch on its property?

         ¶5 Did the District Court err by awarding costs and fees to BHCC?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶6 This case arises over rights and obligations associated with an irrigation ditch in Yellowstone County known as Hogan's Slough/Canyon Creek. Easement rights to Hogan's Slough were established in 1905. Since 1927, the Fox family, including Herman Fox currently, has held the easement and has diverted water from the Yellowstone River through Hogan's Slough to the family's farmland.

         ¶7 In the early 1970s, two hotel complexes were constructed adjacent to Hogan's Slough-the Billings Hotel (formerly Ramada Inn) is located south of the slough and a Radisson Inn (formerly Holiday Inn) is located to the north. In 1999, BHCC acquired the existing hotel located on the south side of the slough with its accompanying approximate twelve acres of land. At the time of BHCC's acquisition, two footbridges, multiple mature and immature cottonwood and spruce trees, numerous utility boxes and power poles, and a picnic table were located within ten feet of the center line of the ditch. Over time, the existing fifty-foot cottonwood trees required pruning. The utility company undertook the task in 2011. However, after pruning the trees were no longer stable and had to be removed by the utility company. In 2012, BHCC replaced the downed trees with multiple small spruce trees and expanded the landscaped area with additional trees and shrubs.

         ¶8 In 2012, Fox contacted BHCC asserting that BHCC was encroaching upon his easement. He claimed he could no longer access the ditch with his ditch maintenance equipment because the trees and shrubs blocked access. He demanded removal of all trees, footbridges, and other improvements within fifteen feet of the center line of the ditch.

         ¶9 In December 2015, after the parties could not reach agreement, Fox filed his complaint against BHCC in the Thirteenth Judicial District Court, Yellowstone County. He asserted BHCC, through tree and shrub planting, was interfering in his right to distribute irrigation water and maintain the irrigation ditch. He further claimed the foliage sheds limbs, leaves, cones, and other detritus into the ditch disrupting the flow of water as well as the operation of his irrigation piping and equipment. Lastly, he complained that ...


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