Mustang Holdings, LLC v. Zaveta , 333 Mont. 471 ( 2006 )


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  •                                           No. 05-454
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2006 MT 234
    MUSTANG HOLDINGS, LLC,
    Plaintiff and Appellant,
    v.
    MARGE ZAVETA,
    Defendant and Respondent.
    APPEAL FROM:         The District Court of the Fourth Judicial District,
    In and For the County of Missoula, Cause No. DV 03-629,
    Honorable Ed McLean, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Darrel L. Moss, Sullivan, Tabaracci & Rhoades, Missoula, Montana
    For Respondent:
    Phillip J. O’Connell, Attorney at Law, Missoula, Montana
    Submitted on Briefs: August 22, 2006
    Decided: September 19, 2006
    Filed:
    __________________________________________
    Clerk
    Justice Patricia O. Cotter delivered the Opinion of the Court.
    ¶1     Mustang Holdings, LLC (Mustang) appeals from an order of the Fourth Judicial
    District Court, Missoula County, granting defendant Marge Zaveta (Zaveta) a preliminary
    injunction. The Order required Mustang to restore an irrigation ditch on its property that
    provides water to Zaveta’s property. We reverse and remand.
    ¶2     Mustang presents the following issues on appeal:
    ¶3     Did the District Court manifestly abuse its discretion when it granted Zaveta’s
    motion for a preliminary injunction?
    ¶4     Did the District Court abuse its discretion when it awarded attorney’s fees to
    Zaveta?
    PROCEDURAL AND FACTUAL BACKGROUND
    ¶5     Mustang and Zaveta own neighboring land on U.S. Highway 12, just west of Lolo
    in Missoula County, Montana. Water from Lolo Creek has irrigated Zaveta’s property
    for more than one hundred years via an irrigation ditch that crosses Mustang’s property.
    The 1937 Lolo Creek Water Decree determined that Joseph Andrews, a predecessor-in-
    interest to Zaveta, originally appropriated the water rights associated with the ditch in
    1884. Following the 1960 Water Resource Survey, the ditch was recognized as the
    Hendrickson-Kuney Ditch.          The ditch ceases to be recognized as anything today,
    however, because Mustang bulldozed it late in 2004.
    ¶6     Zaveta held two claims for the water rights associated with the ditch with the
    Montana Department of Natural Resources and Conservation.           The claims allowed
    2
    Zaveta to begin irrigating annually in mid-March. Zaveta at some point failed to pay a
    $150.00 per claim processing fee as part of the statewide basin adjudication, however,
    and the Water Court terminated her claims in October 1999.            Zaveta nonetheless
    continued to divert water through the ditch uninterrupted. Zaveta finally paid the claim
    processing fees in August 2003, however, and as a result the Water Court reopened
    Zaveta’s case. The Water Court issued an order on November 4, 2003, reinstating
    Zaveta’s claims.
    ¶7    Meanwhile, Mustang initiated the present action on July 31, 2003, when it filed a
    complaint in District Court seeking a declaratory judgment that Zaveta had no right to use
    the ditch. Mustang based its complaint on the theory that the Water Court had terminated
    Zaveta’s water rights permanently in October 1999, thereby extinguishing any easement
    in favor of Zaveta across its property as a matter of law in accord with § 70-17-111(3),
    MCA. Zaveta answered Mustang’s complaint and asserted as an affirmative defense that
    she “is the owner of an easement for a ditch located on [Mustang’s] property.” Zaveta’s
    answer also prayed for “such other and further relief that the Court deems just and
    proper.”
    ¶8     Mustang moved for summary judgment on December 4, 2003. The District Court
    determined that genuine issues of material fact existed in light of the Water Court’s order
    reinstating Zaveta’s water rights, and denied the motion on August 20, 2004. To date, the
    District Court has not issued a final order regarding Mustang’s action for declaratory
    judgment.
    3
    ¶9     Mustang destroyed the very ditch at issue—without leave of the court—in
    November and December 2004. Zaveta in response moved for a preliminary injunction
    on March 16, 2005. She alleged that Mustang violated § 70-17-112, MCA, which
    prohibits interference with a party’s ditch easements, and that § 70-17-112(5), MCA,
    entitled her to attorney’s fees. Zaveta also alleged that Mustang destroyed Zaveta’s
    property “with intent to defraud Zaveta” and that Mustang acted “in violation of Zaveta’s
    rights respecting the subject of the action and tending to render the judgment ineffectual.”
    ¶10    The court held a hearing on May 10, 2005, and issued an order on June 29, 2005.
    The order granted Zaveta’s motion for a preliminary injunction and required Mustang to
    restore the ditch. The court further ordered Mustang to pay the costs and reasonable
    attorney’s fees Zaveta incurred in connection with the preliminary injunction. Mustang
    appeals.
    STANDARD OF REVIEW
    ¶11    We review the district court’s decision to deny or grant a preliminary injunction
    for a manifest abuse of discretion. Yockey v. Kearns Properties, LLC, 
    2005 MT 27
    , ¶ 12,
    
    326 Mont. 28
    , ¶ 12, 
    106 P.3d 1185
    , ¶ 12. A manifest abuse of discretion is one that is
    obvious, evident, or unmistakable. Yockey, ¶ 12.
    DISCUSSION
    ¶12    The core issue between the parties from the outset has been whether Zaveta still
    holds a valid easement through Mustang’s property. If she does, then under § 70-17-112,
    MCA, it would be unlawful for Mustang to encroach upon or impair the ditch easement.
    4
    The District Court denied Mustang’s motion for summary judgment on this precise
    matter in December 2003, reserving it for trial. Mustang then destroyed the ditch late in
    2004 before the District Court could determine the parties’ respective rights pursuant to
    the complaint for declaratory relief filed by Mustang. This action prompted Zaveta’s
    request in March 2005, for the issuance of a preliminary injunction, the granting of which
    gives rise to this appeal. It bears repeating that the questions of whether Zaveta holds a
    valid easement, and if so, the extent of the relief to which she is entitled, remain for trial.
    ¶13    Mustang asserts that the District Court manifestly abused its discretion when it
    granted a preliminary injunction absent “any basis in law or fact.” Section 27-19-201,
    MCA, establishes five situations in which a court may grant a preliminary injunction.
    The subsections of this statute are disjunctive, so findings that satisfy one subsection are
    sufficient for a court to issue an injunction. Sweet Grass Farms. v. Board of County
    Com'rs, 
    2000 MT 147
    , ¶ 27, 
    300 Mont. 66
    , ¶ 27, 
    2 P.3d 825
    , ¶ 27. Notably, however, of
    the statutory subsections that could arguably apply here, each contemplates the
    restraining of the commission of an act, the continuance of an act, and/or the threat that
    an act adverse to the opposing party’s interests will be undertaken, as a predicate to the
    issuance of an injunction.      None of these sections contemplates the issuance of an
    injunction to correct a wrong that has already been committed and completed. Here,
    although the ditch was already completely destroyed by the time Zaveta sought the
    injunction, the District Court nonetheless granted Zaveta’s request for a preliminary
    injunction and imposed an order requiring Mustang to restore the ditch.
    5
    ¶14     Mustang argues that Zaveta’s damages can be compensated monetarily and thus,
    do not satisfy the “great or irreparable injury” prerequisite for a preliminary injunction.
    More to the point, the question we must first address is whether this case, given its
    posture when presented to the District Court on a prayer for injunctive relief, is even
    amenable to an order for preliminary injunction.
    ¶15     In Bouma v. Bynum Irrigation District, 
    139 Mont. 360
    , 
    364 P.2d 47
     (1961), the
    plaintiff sought relief from a judgment of the district court denying his request for
    injunctive relief under somewhat similar circumstances. We affirmed the district court,
    noting that activity undertaken by the parties with respect to irrigation ditches had been
    completed prior to the time that the preliminary injunction was sought. Therefore, we
    concluded, remedy by injunction was moot. We said: “An injunction will not issue to
    restrain an act already committed. Injunction is not an appropriate remedy to procure
    relief for past injuries, it is to afford preventive relief only.” Bouma, 139 Mont. at 364,
    
    364 P.2d at 49
     (internal citations omitted). We then quoted Mallon v. City of Long
    Beach, 
    330 P.2d 423
    , 431, for the following proposition:
    If . . . there is no reasonable probability that past acts complained of will recur,
    injunctive relief will be denied. Injunction power is not used as punishment for
    past acts and is ordered against them only if there is evidence they will probably
    recur.
    Bouma, 139 Mont. at 364, 
    364 P.2d at 49
    .               Likewise, we held in Billings Assoc.
    Plumbing, Etc. v. State Bd., 
    184 Mont. 249
    , 255, 
    602 P.2d 597
    , 601 (1979), that where
    the entire injury is in the past, an injunction cannot issue.
    6
    ¶16       Here, the entire injury is in the past, as the ditch was completely destroyed well
    before the court could enter any type of injunctive relief. Thus, under the clear language
    of § 27-19-201, MCA, and the cases cited above, this was not a case suitable for the
    issuance of a preliminary injunction. By the time the District Court was requested to act,
    there was nothing to enjoin.
    ¶17       This is not to say that Zaveta is not entitled to relief. In the event she prevails at
    the trial of the action for declaratory judgment, then she may present evidence as to the
    damages she has sustained as a result of the destruction of the ditch. The District Court
    would have the authority at this juncture to order Mustang to restore the ditch and if
    indicated, permanently enjoin Mustang from further interference with Zaveta’s easement
    rights.     See Butler v. Germann, 
    251 Mont. 107
    , 113-114, 
    822 P.2d 1067
    , 1071
    (1991)(overruled on other grounds by Shammel v. Canyon Resources Corp., 
    2003 MT 372
    , 
    319 Mont. 132
    , 
    82 P.3d 912
    ). However, these determinations must await final
    resolution of this case.
    ¶18       For the foregoing reasons, the District Court’s decision to issue a preliminary
    injunction was unmistakably erroneous. Consequently, we conclude that the District
    Court manifestly abused its discretion. We therefore reverse the Order granting Zaveta a
    preliminary injunction. In light of this, we likewise reverse the District Court’s award of
    attorney fees to Zaveta.
    7
    ¶19    Reversed and remanded for further proceedings consistent with this Opinion.
    /S/ PATRICIA COTTER
    We concur:
    /S/ KARLA M. GRAY
    /S/ JAMES C. NELSON
    /S/ JIM RICE
    Justice Brian Morris dissents.
    ¶20    The Court’s decision unnecessarily rewards Mustang’s brazen behavior in
    interfering with Zaveta’s one-hundred-and-twenty-year-old water right. I disagree with
    the Court’s reasoning and I cannot countenance its conclusion.
    ¶21    Since 1884, water flowed annually from Lolo Creek through the Hendrickson-
    Kuney Ditch across the property now held by Mustang to irrigate Zaveta’s property. The
    water abruptly stopped flowing in 2004 when Mustang bulldozed the ditch. Aggressive
    behavior of this type characterized Mustang’s dealings with Zaveta from the outset.
    Mustang, not Zaveta, initiated this declaratory judgment action on July 31, 2003.
    ¶22    Mustang moved for summary judgment on December 4, 2003, no doubt prompted
    by the fact that the Water Court had reinstated Zaveta’s water rights on November 4,
    2003. The Water Court’s apparent termination of Zaveta’s water rights in 1999 served as
    the lynchpin of Mustang’s claim that the Hendrickson-Kuney Ditch no longer constituted
    a valid easement across its property.
    8
    ¶23   Mustang never bothered to inform the District Court that the Water Court had
    reinstated Zaveta’s water rights by the time it had filed its motion for summary judgment.
    When apprised of this fact by Zaveta in its brief in opposition to summary judgment,
    Mustang wrongly argued that the Water Court’s termination of Zaveta’s water rights
    automatically had extinguished any prescriptive easement that Zaveta may have had
    across its property. As noted by the Court, however, Zaveta continued to use the
    Hendrickson-Kuney Ditch uninterrupted from the time of the Water Court’s termination
    of her water rights in 1999 through its reinstatement of her water rights in 2003. ¶ 6.
    Uninterrupted and continuous use constitutes a critical element of a prescriptive
    easement. Brimstone Mining, Inc. v. Glaus, 
    2003 MT 236
    , ¶ 21, 
    317 Mont. 236
    , ¶ 21, 
    77 P.3d 175
    , ¶ 21.
    ¶24   Not surprisingly the District Court denied Mustang’s motion for summary
    judgment. The District Court reached this conclusion after finding that the “long history”
    of use by Zaveta and her predecessors of the ditch across Mustang’s property and the
    resolution of Zaveta’s water rights by the Water Court raised genuine issues of material
    fact—material indeed—regarding the viability of Mustang’s claim that Zaveta no longer
    had a valid easement across its property. The District Court issued its order denying
    Mustang’s motion for summary judgment on August 20, 2004.
    ¶25   Mustang alleges that after the District Court denied its motion for summary
    judgment, “this matter sat idle.” Mustang, apparently seeing the writing on the wall,
    however, refused to sit idle and engaged in what can be described only as “self-help” to
    9
    improve its litigation position. Mustang simply bulldozed the ditch. Mustang gave no
    notice to Zaveta. As she attested in her affidavit, “[n]o one from Mustang Holdings
    communicated with me in any way before destroying the only ditch through which I can
    convey my irrigation water to my property.” (Emphasis added). Mustang gave no notice
    to the district court. It simply wiped off the map a one-hundred-and-twenty-year-old
    ditch one fine winter day in November or December of 2004. The Court cannot even
    pinpoint the date of Mustang’s destruction in light of the fact that Mustang never told
    anyone of its activities. Mustang likely recognized that someone might have said no if it
    had asked permission—better to act first without permission and seek to apologize later.
    Mustang has not even brought itself to apologize. Mustang instead cavalierly asserts that
    it “has numerous and improved assets to satisfy any judgment that may be entered” to
    cover Zaveta’s loss of her easement across its property.
    ¶26    Zaveta moved for a preliminary injunction on March 16, 2005, in response to
    Mustang’s bulldozing of the ditch. She alleged that Mustang violated § 70-17-112,
    MCA, which prohibits interference with a party’s ditch easements. Mustang insisted
    repeatedly throughout the hearing on Zaveta’s motion for preliminary injunction that the
    Water Court lacked jurisdiction to reinstate Zaveta’s water rights. The District Court
    disagreed and determined that for purposes of Zaveta’s motion for preliminary injunction,
    the Water Court had reinstated Zaveta’s water rights “going back to the water right that
    was issued on April 1, 1890.” Mustang never appealed this determination, and we must
    take it to be true for purposes of this appeal. As we noted in Sweet Grass Farms, Ltd. v.
    10
    Board of County Commrs., 
    2000 MT 147
    , ¶ 38, 
    300 Mont. 66
    , ¶ 38, 
    2 P.3d 825
    , ¶ 38,
    “[i]n determining the merits of a preliminary injunction, ‘[i]t is not the province of either
    the District Court or the Supreme Court on appeal to determine finally matters that may
    arise upon a trial on the merits.’"
    ¶27    The District Court granted Zaveta’s motion for a preliminary injunction.           In
    response, Mustang’s counsel taunted the District Court at the conclusion of the hearing:
    “Would you like the notice of appeal today or tomorrow?” Unfortunately the Court
    rewards such bravado when it focuses on Mustang’s completed destruction of the
    Hendrickson-Kuney Ditch, ¶ 13, rather than on Mustang’s continuing and on-going
    interference with Zaveta’s easement across Mustang’s property. As Zaveta attested in
    her affidavit, she has “no other means of irrigating [her] pasture.”
    ¶28    The Court relies on our decision in Bouma v. Bynum Irrigation Dist., 
    139 Mont. 360
    , 
    364 P.2d 47
     (1961), to support its conclusion that an injunction cannot remedy “an
    act already committed.” ¶ 15. In Bouma, however, the plaintiff sought an injunction to
    prevent the owner of a canal across his property from allowing wastewater to accumulate
    in the canal and periodically spill onto plaintiff’s property. The canal owner took several
    steps to remedy the problem during the pendency of the litigation that the plaintiff
    deemed inadequate. As a result, the plaintiff “resorted to the age-old remedy of self-
    help” before the trial and constructed a series of dams where the canal entered his
    property. Bouma, 139 Mont. at 363, 
    364 P.2d at 49
    . At that point, the Court refused to
    grant injunctive relief to the plaintiff where the harm had stopped occurring: “The dams,
    11
    as indicated by the record, are still in place. Therefore, it is apparent that the remedy by
    injunction has become moot.” Bouma, 139 Mont. at 363-64, 
    364 P.2d at 49
    .
    ¶29    Here the harm continues unabated. As determined by the Water Court, ratified by
    the District Court for purposes of Zaveta’s motion for preliminary injunction, and binding
    on us for purposes of this appeal, Zaveta holds two valid water rights to water from Lolo
    Creek. Zaveta has no means, other than the now destroyed Hendrickson-Kuney Ditch, to
    convey her water to her property.      Remedy by injunction has not “become moot.”
    Bouma, 139 Mont. at 363-64, 
    364 P.2d at 49
    .
    ¶30    The situation would be no different if Mustang had followed the lead of the
    plaintiff in Bouma and erected a plastic irrigation dam across the Hendrickson-Kuney
    Ditch where it entered its property instead of bulldozing it. Mustang would argue that
    preliminary injunctive relief would not be available because the harm that Zaveta seeks to
    prevent already has occurred—it had blocked the ditch. I have no doubt that this Court
    would affirm the District Court’s order granting a preliminary injunction under those
    circumstances. The Court would order Mustang simply to remove the plastic dam and
    allow the irrigation water to flow, as it has for the past one-hundred-and-twenty years,
    during the pendency of Mustang’s declaratory judgment action.             The preliminary
    injunction would relate to Mustang’s continued encroachment or impairment of Zaveta’s
    easement.
    ¶31    I say that the Court would order Mustang to remove the dam based on our decision
    in Butler v. Germann, 
    251 Mont. 107
    , 
    822 P.2d 1067
     (1991), overruled in part on other
    12
    grounds, Shammel v. Canyon Resources Corp., 
    2003 MT 372
    , ¶ 12, 
    319 Mont. 132
    , ¶ 12,
    
    82 P.3d 912
    , ¶ 12. There Germann modified the Butlers’ irrigation ditch without their
    permission, including “blad[ing] off from 12 to 18 inches of the downslope bank” and
    using the dirt as fill in his own barnyard. Butler, 251 Mont. at 109, 
    822 P.2d at 1069
    .
    The district court granted a preliminary injunction ordering Germann to raise the banks of
    the ditch. Butler, 251 Mont. at 109, 
    822 P.2d at 1069
    . We affirmed the district court’s
    injunction requiring Germann to raise the banks of the irrigation ditch to its former height
    despite the fact that Germann’s unauthorized blading already had occurred. Butler, 251
    Mont. at 113, 
    822 P.2d at 1071
    .
    ¶32    Similar to Mustang’s bulldozing of the Hendrickson-Kuney Ditch, Germann’s
    unauthorized blading was completed by the time that the injured party sought a
    preliminary injunction. Butler, 251 Mont. at 109, 
    822 P.2d at 1069
    . The district court
    did not stop with simply requiring Germann to restore the banks of the ditch to their
    former heights. The testimony presented at trial indicated that restoring the banks would
    not necessarily restore the ditch’s former water carrying capacity in light of the sandy
    loam soil in the area.    The district court also ordered further repairs that it found
    necessary to restore the ditch’s integrity, including heightening and thickening the banks,
    replanting vegetation on the banks, and lining the ditch. Butler, 251 Mont. at 113, 
    822 P.2d at 1071
    . We affirmed this mandatory injunction based upon our conclusion that the
    “fundamental purpose of any remedy is to return the plaintiff to his or her rightful
    13
    position, ‘the position or state the party would have attained had the [wrong] not
    occurred.’” Butler, 251 Mont. at 110, 
    822 P.2d at 1069
    .
    ¶33   The outcome likewise would be similar if Mustang and Zaveta had followed the
    normal course. Mustang would have made noises about cutting off Zaveta’s easement
    and even may have resorted to minor acts of sabotage that fall into the category of
    nuisances. And Zaveta, rather than Mustang, likely would have filed an action to abate
    the nuisances to ensure the continued viability of its easement.         This Court has
    consistently held that an injunction is a proper remedy to abate a continuing nuisance.
    Boyer v. Karagacin, 
    178 Mont. 26
    , 32, 
    582 P.2d 1173
    , 1177-78 (1978), overruled in part
    on other grounds, Shammel, ¶ 12; Floyd v. City of Butte, 
    147 Mont. 305
    , 313, 
    412 P.2d 823
    , 827 (1966); Wilhite v. Billings & Eastern Montana Power Co., 
    39 Mont. 1
    , 11, 
    101 P. 168
    , 171 (1909). Damages are inadequate in cases of continuing nuisance because the
    injured party is forced to bring a multiplicity of suits in successive actions for the
    recurring injury. See Floyd, 147 Mont. at 313, 
    412 P.2d at 827
    ; Hart v. Wagner, 
    40 A.2d 47
    , 51 (Md. 1944).
    ¶34   The outcome should be no different here where Mustang has elected to forego
    preliminaries and wipe the Hendrickson-Kuney Ditch off the map. The end result is the
    same—Mustang has encroached or impaired, and will continue to encroach or impair,
    Zaveta’s easement during the pendency of Mustang’s declaratory judgment action. I fear
    that by its decision today the Court announces a new twist on an old adage along the lines
    14
    of “the Court helps those who help themselves.” The Mustangs of the world will get the
    message loud and clear.
    ¶35    The Legislature has determined that easements conveying irrigation water, in the
    form of ditches, play such an important role in the agricultural life of Montana, that it has
    singled out irrigation ditches from all other types of easements as deserving of special
    protection. Section 70-17-112(2), MCA, provides that no person may “encroach upon or
    otherwise impair” any ditch used for irrigation water. The statute includes specifically
    any “ditch easement obtained by prescription,” § 70-17-112(4), MCA, and consequently
    the protections of the statute would apply to Zaveta’s ditch easement. No doubt exists
    that Mustang has “encroach[ed] upon or otherwise impair[ed]” Zaveta’s ditch that she
    used for irrigation water. They bulldozed it. If Zaveta were to prevail on the declaratory
    judgment complaint, Mustang has encroached or impaired her irrigation ditch by
    bulldozing it in contravention of § 70-17-112(2), MCA. It is well settled that wrongful
    conduct of this type would be subject to potential injunctive relief. See e.g. Engel v.
    Gampp, 
    2000 MT 17
    , ¶ 56, 
    298 Mont. 116
    , ¶ 56, 
    993 P.3d 701
    , ¶ 56 (upholding district
    court’s enjoinment of interference with dominant tenant owner’s secondary easement to
    access irrigation ditch under § 70-17-112(4), MCA), overruled in part on other grounds,
    Shammel, ¶ 12; Ducham v. Tuma, 
    265 Mont. 436
    , 442-43, 
    877 P.2d 1002
    , 1007 (1994)
    (enjoining trespass), overruled in part on other grounds, Shammel, ¶ 12.
    ¶36    As discussed above in Butler, we affirmed the district court’s mandatory
    injunction requiring the Germanns to restore the irrigation ditch to its former height.
    15
    Butler, 251 Mont. at 113, 
    822 P.2d at 1071
    . We recognized the need for the mandatory
    injunction as the sole remedy available to return the Butlers to their former position. We
    also justified the mandatory injunction in light of the Germanns’ violation of § 70-17-
    112, MCA. Butler, 251 Mont. at 114, 
    822 P.2d at 1072
    . Likewise in Engel, ¶ 58, we
    affirmed the district court’s order enjoining the Gampps from interfering with the Engels’
    exercise of their secondary easement rights under § 70-17-112(1), MCA. Mustang has
    interfered, and will continue to interfere, with Zaveta’s primary easement rights under §
    70-17-112, MCA, during the pendency of this litigation. The District Court’s order
    provides the sole remedy for the type of self-help employed by Mustang in this instance.
    ¶37    The Court nevertheless concludes that the District Court’s decision to issue a
    preliminary injunction was a manifest abuse of discretion. ¶ 18. The Court stops short
    its analysis upon determining that “the entire injury is in the past” and therefore “this was
    not a case suitable for the issuance of a preliminary injunction.” ¶ 16. As I discussed in ¶
    29, however, Mustang continues to encroach or impair Zaveta’s easement. Zaveta’s
    easement, in the form of the Hendrickson-Kuney Ditch, no longer could carry Zaveta’s
    irrigation water on whatever winter day in 2004 that Mustang bulldozed it, it cannot carry
    Zaveta’s irrigation water today, and it will not be able to carry Zaveta’s irrigation water
    in the future. The Court should have proceeded to analyze whether Zaveta demonstrated
    sufficiently to the District Court that the situation warrants preservation of her property or
    rights in status quo until trial. Sweet Grass Farms, ¶ 28.
    16
    ¶38   We have defined the status quo as “‘the last actual, peaceable, noncontested
    condition which preceded the pending controversy.’”          Sweet Grass Farms, ¶ 28.
    Mustang claims that its act of self-help in bulldozing the ditch changed the status quo in
    its favor. It contends that the act for which Zaveta seeks a preliminary injunction “has
    already occurred and completed,” and thus, there is “no status quo to protect.” The
    “pending controversy” began on July 31, 2003, however, when Mustang filed an action
    seeking declaratory relief in a complaint to extinguish any easement Zaveta may have
    held to transport water through the irrigation ditch on Mustang’s property. As a result,
    “the last actual, peaceable, noncontested condition which preceded the pending
    controversy” included the existence of the ditch on Mustang’s property.
    ¶39   Interpreting status quo in the instant case to relate back to the condition of the
    ditch when Zaveta filed the motion for a preliminary injunction, rather than the ditch’s
    condition at the time Mustang filed its complaint, will allow Mustang, or other impatient
    real-estate developers, to interfere with whomever’s ditch easement they choose, content
    with the knowledge it “has numerous and improved assets to satisfy any judgment that
    may be entered.” Zaveta’s use of the irrigation ditch preceded the pending controversy.
    Consequently, an irrigation ditch that carries water to Zaveta’s property is the status quo
    in the instant case. See Sweet Grass Farms, ¶ 28.
    ¶40   I would preserve the status quo as it existed when Mustang filed its complaint on
    July 31, 2003.    I would affirm the District Court’s mandatory injunction directing
    17
    Mustang to restore the Hendrickson-Kuney Ditch to the condition in which it existed on
    that date. I dissent from the Court’s failure to do so.
    /S/ BRIAN MORRIS
    Justices W. William Leaphart and John Warner join in the foregoing dissent.
    /S/ W. WILLIAM LEAPHART
    /S/ JOHN WARNER
    18