HERMAN L. FOX, Plaintiff and Appellant,
BHCC II, INC., a Montana Corporation, doing business as THE BILLINGS HOTEL & CONVENTION CENTER, Respondent and Appellee.
Submitted on Briefs: June 21, 2017
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.
Appellant: Benjamin J. LaBeau, LaBeau Law Firm, PC, Billings,
Appellee: Jon E. Doak, Doak & Associates, PC, Billings,
Michael E Wheat Justice.
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.
A restatement of the issues on appeal is:
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
Did the District Court err by imposing a duty on BHCC to
clean and maintain the ditch on its property?
Did the District Court err by awarding costs and fees to
AND PROCEDURAL BACKGROUND
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.
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
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.
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