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MILDENBERGER v. GALBRAITH

No. 90-397.

815 P.2d 130 (1991)

Harold MILDENBERGER and Marilyn Mildenberger, husband and wife, Plaintiffs and Respondents, v. Joseph GALBRAITH and Denise Galbraith, husband and wife, Defendants and Appellants.

Supreme Court of Montana.

Decided July 1, 1991.

Attorney(s) appearing for the Case

David L. Pengelly, Knight, Maclay & Masar, Missoula, for defendants and appellants.

John D. Greef, Hamilton, for plaintiffs and respondents.

Marc Racicot, Atty. Gen., Harley R. Harris, Asst. Atty. Gen., Tim D. Hall, Legal Counsel, Dept. of Natural Resources, Helena, for amicus curiae.

HARRISON, Justice.

Appellants, Joseph and Denise Galbraith appeal from the judgment of the District Court of the Fourth Judicial District, Ravalli County, Montana, holding that Harold and Marilyn Mildenberger have a prescriptive easement in the water ditch on appellants' property and a stockwater right with a priority date of September 1, 1927, for water arising on lands currently owned by a third party. We affirm in part and reverse in part.

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