No. 13261
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
WILLIAM LUPPOLD ,
P l a i n t i f f and R e s p o n d e n t ,
LEN LEWIS e t a l . ,
D e f e n d a n t s and A p p e l l a n t s .
Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l
District,
H o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For A p p e l l a n t s :
P a t r i c k F . Hooks a p p e a r e d , Townsend, Montana
L o b l e , P i c o t t e a n d P a u l y , H e l e n a , Montana
Bruce L o b l e a r g u e d and Henry L o b l e a r g u e d , H e l e n a ,
Montana
For Respondent: .
John V. P o t t e r , J r . a r g u e d , White S u l p h u r S p r i n g s ,
Montana
Moore and R i c e , Bozeman, Montana
P e r r y J . Moore a r g u e d , Bozeman, Montana
Submitted: J a n u a r y 1 8 , 1977
Decided : APR 13 1917
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
This is an appeal from findings of fact and conclusions
of law of the district court, Meagher County, interpreting an
1890 water rights decree, pursuant to section 89-1015, R.C.M.
1947. This cause is entitled with the names of the parties to
the original action, whereas the actual parties to this appeal
are Gertrude McStravick and Fred Buckingham, as respondents,
and Ward Paper Box Company, as appellant. Appellant's and re-
spondents' predecessors in interest were parties to the 1890
adjudication, wherein they received the following rights:
Party Priority of Right Tota,lInches
McStravick 1 60
Buckingham 20, 21 500
Ward Paper Box Co. 9, 10, 11, 1 5 18
., 1,035
24, 26, 28, 29
During the 1973 irrigation season a controversy arose
between respondents and appellant as to whether Four Mile Creek
was adjudged in the 1890 decree in question. Respondents con-
tend that Four Mile Creek was adjudged in the 1890 decree, spec-
ifically appellant's water right 29. Appellant, on the other
hand, claimed Four Mile Creek was not adjudged in the 1890 decree,
but only the North Fork of the Smith River and those tributaries
specified in the decree, and the water commissioner appointed
to administer the decree had no authority on Four Mile Creek.
Consequently, the water commissioner did not administer the waters
of Four Mile Creek during the 1973 irrigation season.
It is agreed the 1890 decree was an adjudication of the
North Fork of the Smith River. However, the decree referred to
"waters of the Smith River", "water of the North Fork of Smith
River", and "waters of" certain named tributaries of the North
Fork of the Smith River.
The North Fork of Smith River is that portion of the
Smith River which lies entirely within the present boundaries
of Meagher County from its headwaters to its confluence with
the South Fork of Smith River in Section 21, Township 9 North,
Range 6 East, M.P.M., Meagher County. Four Mile Creek is a
stream located in Meagher County which flows into the North
Fork of Smith River in the spring of the year when the waters
are unimpeded and uninterrupted.
On April 23, 1974, respondents filed a petition for
clarification of water right decree. This was subsequently
dismissed, without prejudice, for failure to join the Montana
Department of Natural Resources and Conservation as a party and
serve notice thereon, as required by section 89-896(4), R.C.M.
1947. On June 25, 1974, respondents filed a petition and com-
plaint of dissatisfied water users. The district court, sitting
without a jury, found Four Mile Creek was adjudged in the 1890
decree. The water commissioner was instructed to administer
and distribute the water of Four Mile Creek in accordance with
the 1890 decree during those times of the year that such waters
would, if uninterrupted and unimpeded, reach the North Fork of
Smith River and contribute to its flow.
When reviewing findings of fact and conclusions of law
of a district court, sitting without a jury, this Court has re-
peatedly held such findings and conclusions will not be disturbed
if supported by substantial evidence and by the law. Compton v.
Alcorn, Mont . , 557 P.2d 292, 33 St. Rep. 1186 (1976);
Brady v. State Highway Comm'n, 163 Mont. 416, 517 P.2d 738;
Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water
Power Co. v. Morgan Electric Co., 152 Mont. 126, 448 P.2d 683.
When reviewing evidence it will be viewed in the light most favor-
able to the prevailing party in the district court, and the cred-
ibility of witnesses and the weight assigned to their testimony
is for the determination of the district court in a nonjury trial.
Johnson v. Johnson, Mont .I -P.2d , 34 St.Rep. 101;
Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 507
P.2d 523; Strong v. Williams, 154 Mont. 65, 460 P.2d 90; Eliason
v. Eliason, 151Mont. 409, 443 P.2d 884.
Appellant's fifteen specifications of error fall into
three general categories: (1) Procedural issues. (2) Substan-
tive issues relating to the jurisdiction of the district court
pursuant to section 89-1015, R.C.M. 1947. And, (3) Substantive
issues not related to the jurisdictional question.
1. The first procedural issue is whether respondents
had standing to pursue an action under section 89-1015. Appel-
lant contends that neither respondent had standing, since the
water commissioner's 1973 records reported (1) McStravick received
all of her decreed water, (2) Buckingham did not show a beneficial
need and use for the additional water he was entitled to, and
(3) neither respondent sought additional water from upstream
users, allegedly receiving excess water.
Section 89-1015, R.C.M. 1947, states, in part:
"Any person owning or using any of the waters of
-
such stream or ditch or extension of ditch, who
is dissatisfied with the method of distribution
of the waters of such stream or ditch by such
water commissioner or water commissioners, -
and
who claims to be entitled to more water than he
is receiving, or is entitled to a right prior to
that allowed him by such water commissioner or
water commissioners, may file his written complaint,
duly verified, setting forth the facts of such
claim. * * * " (Emphasis supplied.)
A careful reading indicates there are two means to achieve
standing: First the user is dissatisfied with the method of
distribution by the water commissioner and claims to be entitled
to more water than he is receiving, or second the user is dis-
satisfied with the method of distribution by the water commis-
sioner and is entitled to a right prior to that allowed him by
such water commissioner.
The district court found the first to be controlling in
finding the respondents did not receive the amount of water
they were entitled to under the 1890 decree during the 1973
irrigating season. There is substantial evidence in the record
to support this finding and it will not be disturbed on appeal.
Respondent McStravick repeatedly testified she was dis-
satisfied with the distribution of water during the 1973 season,
that this dissatisfaction was the extreme shortage of water
which caused a reduction in the hay crop as compared to previous
years. Elmer Hanson, a leaseholder of McStravick, testified
water was very low and only intermittently available during 1973;
and that this condition was present during the months of May and
June, when Four Mile Creek would reach the North Fork of Smith
River if uninterrupted and unimpeded. Rick Buckingham testified
the water was low in 1973 and he was present when his father con-
fronted the water commissioner about this shortage.
The district court was presented with conflicting testi-
mony. The water commissioner's records, which are the basis for
payment of his services, reflected that respondents received
their decreed water. Respondents and Elmer Hanson on the other
hand disputed these records, as can clearly be noted from Hanson's
testimony he believed the records to be incorrect. The weight
assigned to testimony is for the district court's determination,
and such will not be disturbed on appeal.
The next procedural issue is whether the district court
failed to direct notice to be given to all necessary parties.
Appellant relies on State ex rel. McKnight vs. District Court,
111 Mont. 520, 111 P.2d 292, for the proposition that all users
and owners under the prior decree must be given notice. We do
not agree. If such were the case, section 89-1015, R.C.M. 1947,
would have so stated. Section 89-1015 states, in part:
" * * * Thereupon the judge shall fix a time for
the hearing of such petition, and shall direct
that such notice be given to the parties
interested in such hearing as the judge may deem
necessary. * * * "
This discretion given to the district judge is not
absolute and McKnight so held. However, McKnight does not
stand for appellant's broad statement of law. McKnight
involved a section 89-1015 action where notice was only served
upon the water commissioner, and - water users or owners were
no
served with notice nor made parties to the action. The district
court then held that one water user's rights pursuant to one
decree were subordinate to a second decree, which was not bind-
ing upon that user. This Court held that such a determination
of rights was a denial of due process and notice should have been
given to the water user. We find no such prejudicial abuse of
discretion in the instant case. Notice was given to appellant
because it questioned the water commissioner's authority on Four
Mile Creek; to the water commissioner; and to the Montana Depart-
ment of Natural Resources and Conservation,which was also made
party to the action, pursuant to the district court's order of
June 24, 1974. Notice was not given to any of the other water
users, however they did not question the water commissioner's
authority on Four Mile Creek, nor were their rights adversely
affected, as in McKnight.
The final procedural issue is whether the action pursuant
to section 89-1015 was improperly allowed because the water com-
missioner did not post a sufficient bond, and his 1973 term had
expired prior to the start of this action. We hold the action
was proper.
The district court is given discretion to fix the sum
of the water commissioner's bond. Section 89-1003, R.C.M. 1947.
Appellant cites authority which involves public officials who
posted - bond.
no Here, the water commissioner did post a one
dollar bond, as fixed by the district court. Appellant did not
object to the sufficiency of the bond at the time of appointment,
but does so now when the issue has no relevance to this appeal.
Not only is the objection untimely, but we find no abuse of the
district court's discretion which would affect the outcome of
this appeal.
The purpose of sections 89-1001 et seq., R.C.M. 1947,
is to provide a uniform, equitable, and economical distribution
of adjudicated, stored, and supplemental waters. Section 89-
1001(3), R.C.M. 1947. To achieve a uniform method of distribu-
tion, the instructions given by the district court must be bind-
ing upon the office of water commissioner, not merely upon the
individual holding the office at a particular time. Here,
William Smith was the water commissioner in 1973 when the contro-
versy arose, and was reappointed in 1974. The controversy over
Four Mile Creek arose during the 1973 irrigation season, however
it continued into the 1974 irrigating season and still exists at
the time of this appeal. For these reasons we find no error in
allowing this action to be filed subsequent to the expiration of
the water commissioner's 1973 term.
2. It has repeatedly been held by this Court that the pur-
pose of an action pursuant to section 89-1015, is not to adjudi-
cate water rights previously determined by decree, but only to
enforce the rights determined by the prior decree. State ex rel.
McKnight, supra. In Quigley v. McIntosh, 110 Mont. 495, 500,
103 P.2d 1067, the court stated:
"It then becomes obvious that the decree must
be the yardstick by which the commissioner shall
proceed, and, of necessity, must likewise consti-
tute the yardstick for the consideration of in-
structions given to him by the court. It is,
therefore, necessary to look to the controlling
provisions of the decree for the authority of
both court and commissioner. * * * "
Therefore, the primary questions for the district court to consider
are:
(1) What was adjudged in the former proceeding and
decree?
(2) Was the water commissioner distributing the water
in accordance with what was there adjudged? Brennan v. Jones,
101 Mont. 550, 55 P.2d 697. Furthermore, the district court
may refer to the pleadings, judgment roll, and the entire record
of the original case when construing a water right decree which
is lacking in certain elements or obscure and uncertain in mean-
ing. Quigley v. McIntosh, supra.
The governing issues of this appeal are:
1) Whether the district court erred in finding the 1890
decree to be obscure and uncertain in meaning?
2) Whether the district court erred in finding Four Mile
Creek to be adjudged in the 1890 decree?
The district court found that three aspects of the 1890
decree rendered it uncertain in meaning and susceptible of dif-
ferent interpretations. First, the respective lands owned by
the parties to whom water was decreed were not identified. Sec-
ond, the decree referred to both the "Smith River" and the "North
Fork of Smith River" without specifying whether they were one
and the same or separate streams. Third, the term "waters of
the Smith River" was uncertain.
We agree. The absence of identifying the respective
lands of the water owners by itself is sufficient to support
the district court's finding. Quigley v. McIntosh, supra. In
addition, the transcript reveals the parties themselves were
uncertain as to the meaning of the decree. William Smith, the
water commissioner, testified he was the water commissioner from
1960 to the time of this action, excepting two years, and that
he had always administered the waters of Four Mile Creek when
necessary in the past and no objection was made by appellant's
predecessors in interest. Carl Holt, appellant's ranch manager,
testified to a conversation about Four Mile Creek with the
water commissioner:
"Q. Go ahead and tell what he said. A. I
told him that I couldn't see where it had
ever been decreed and I didn't know whether
he had any business up there and I would like
to have him clarify it." (Emphasis supplied.)
Next, we determine whether there was substantial evi-
dence to support the finding that Four Mile Creek was adjudged
in the 1890 decree. We find there is substantial evidence to
support this finding.
George F. Danzer was appellant's predecessor in interest
to the 29th water right in the 1890 decree. The 1890 decree,
listing George F. Danzer's rights states:
"Geo. F. Danzer 50 inches Appropriated October, 1878
"Geo. F. Danzer 125 " I
' April, 1879
"Geo. F. Danzer 275 " I1
September 6, 1879
June, 1883"
"Geo. F. Danzer 100 " It
(Emphasis supplied. )
Thereafter, George F. Danzer was awarded, under the decree, the
10th right of 50 inches of the "waters of the Smith River", the
11th right of 125 inches of the "waters of the Smith River", the
12th right of 275 inches of the "waters of the Smith River", and
the 29th right of 100 inches of the "waters of the Smith River."
In his answer to the original action, Danzer stated he
irrigated land in Section 25, Township 10 North, Range 7 East
from Four Mile Creek, and that James T. Anderson and E. J. Ander-
son, predecessors in interest, had diverted 100 inches of water
from Four Mile Creek and appropriated the same on or about June
1, 1883, the exact date and amount appropriated which was referred
to in the 1890 decree. Additionally, the maps and exhibits in-
troduced at trial show that the land previously described could
only be irrigated from Four Mile Creek. The district judge viewed
this topography himself and determined this to be true. This
evidence is more than enough to support the district court's
finding that Four Mile Creek was adjudged in the 1890 decree.
Therefore, there is no need for this Court to rule upon the
reliability of the partial transcript of the 1890 proceedings,
wherein George F. Danzer makes reference to Four Mile Creek in
his testimony.
Appellant next contends the district court exceeded its
jurisdiction in finding that Four Mile Creek is a tributary of
the North Fork of Smith River, since it cannot determine tribu-
tary status nor change a point of diversion in an action pur-
suant to section 89-1015. This would be correct if the district
court had in fact done so. However, the district court only
determined what had been adjudged in the 1890 decree, as evi-
denced by finding of fact 8:
"That the issue of whether or not Four-Mile Creek
was a tributary of the North Fork of Smith River
was actually raised in the pleadings of this action
and that such issue was actually litigated at the
trial thereof and it is res judicata that Four-
Mile Creek is a tributary of the North Fork of
Smith River and therefore controlled and governed
by the 1890 Decree."
The evidence supports the finding that George F. Danzer's 29th
right was from Four Mile Creek. Therefore, the 1890 decree
necessarily adjudged Four Mile Creek to be a tributary of the
North Fork of the Smith River. Otherwise, Danzer's right would
not be one of 29th priority, subsequent to the previous 28 rights
awarded. Appellant's objections are the same as those considered
by the Court in Zosel v. Kohrs, 72 Mont. 564, 578, 234 P. 1089:
"But plaintiff alleges that at certain times the
waters of Baggs Creek below her ditch and before
reaching Cottonwood Creek if not taken by her,
would sink and be lost. (She does not say whether
the water would reach the Pierce ditch.) She
therefore avers that Baggs Creek during that period
of the year is not a tributary to Cottonwood. But
she is precluded from maintaining this position.
The decree determined that Baggs Creek is a trib-
utary of Cottonwood Creek; that is an adjudicated
fact, and evidence to the contrary will not be
heard until a change in the condition sub-
sequent to the decree has been shown. (Howell
v. Bent, 48 Mont. 268, 137 P. 49.)
"If it be true that there are times when the
waters at the head of plaintiff's Baggs Creek
ditch will be lost unless used by her, not
being of sufficient quantity to reach to the
ditch next lower upon the stream, her remedy
is, in a proper proceeding for that purpose,
to ask for a modification of the decree per-
mitting her to use the water when those condi-
tions obtain. Until modified in that respect
she is bound by the decree as it is written."
Thus it is appellant, not the district court, who attempts to
exceed the scope of section 89-1015.
Appellant raises certain specifications of error, which
indicate that some of the district court's findings did exceed
the scope of section 89-1015. Findings based upon facts and
occurrences subsequent to the 1890 decree, and those outside
of the pleadings, record, and judgment role of that decree can-
not stand. One such finding is that appellant waived any claim
to Four Mile Creek by its appearance in Hanson v. Southside
Canal Users, 167 Mont. 210, 537 P.2d 325, 32 St.Rep. 611. An-
other is that appellant has no claim to Four Mile Creek water
under any Water Right Location or Notice of Appropriation filed
subsequent to the 1890 decree. We are not ruling upon the merits
of these claims, but merely stating that such matters are not
for the district court's consideration.
3. The district court found that appellant interfered with
and hindered the water commissioner in distributing Four Mile
Creek water by asserting that the 1890 decree did not adjudge
Four Mile Creek and by locking and rendering inoperative head-
gate controls on diversions from Four Mile Creek. Appellant
contends this is error. We disagree. There is substantial
evidence in the record to support such a finding. The parties
agree that appellant disputed the water commissioner's authority
on Four Mile Creek. The water commissioner testified that a
combination lock was placed on a headgate without his per-
mission and without offering the combination to him, and this
prevented him from regulating appellant's diversion from Four
Mile Creek. The testimony of appellant's ranch manager that
the water commissioner knew the combination, and the lock was
placed on the headgate to prevent vandalism, merely raises a
question of credibility and weight of the evidence. Such
matters are for the district court's determination and will
not be disturbed on appeal.
Appellant questions the propriety of allowing as costs
the expense of certain copies of documents, and the abstractor's
fee for title reports used in preparing certain maps. The ob-
jections to the copies of documents is that they were ordered
and paid for when the original petition for clarification was
filed. This petition was subsequently dismissed without preju-
dice, and other copies were not introduced at trial. Concerning
the abstractor's fee, the parties agree that such expense was
incurred for the preparation of maps not introduced or used at
trial.
It has been repeatedly held that no expense of litiga-
tion may be recovered unless covered by section 93-8618, R.C.M.
1947, or taken out of its operation by special statute, by
stipulation of the parties, or by rule of the court. Roseneau
Foods, Inc. v. Coleman, 140 Mont. 572, 374 P.2d 87; Broberg v.
Northern Pac. Ry. Co., 120 Mont. 280, 182 P.2d 851. A party
is not entitled to recover every expense of litigation.
To qualify as an "express provision of law" under sec-
tion 93-8618, R.C.M. 1947, as contended by respondents, a stat-
ute must address the issue of what is an allowable "cost" and
"disbursement". Section 89-1015, R.C.M. 1947, provides:
" * * * The judge shall make such order_as,to the
payment o c o s k ~
f of such hearing as m a w e a r +o
him to b . s
e>+ a n d praper. " _IEmphasis supplied .)
The discretion granted the district court in a section 89-1015
action is to determine who will pay the costs, it is not to
determine what are allowable "costs". Regardless of whom the
district court orders to pay the "costs", section 93-8618, R.C.M.
1947,governs what "costs" are allowable.
It is essential that only "costs" incurred in the
action for which the judgment is entered be allowed. This
prevents any possibility of multiple reimbursement for the same
expense. Even though the petition for clarification was filed
for the same objective as the previous petition, which was dis-
missed, the two were separate and distinct actions. For this
reason, those costs incurred in the previous action are not
recoverable in the present action, and section 93-8618 states:
" * * * the legal fees paid for filing and
recording papers and certified copies thereof
necessarily used in the action or on trial * * *".
A reading of the statute reveals that it is not fatal if the
copies are not introduced at trial. They are allowable costs
if the district court determines they were "necessarily used
in the action", as was done here. See Kenyon v. Automatic
Instrument Co., 10 F.R.D. 248, 254, for the distinction between
the phrases "use in the case" and "use on trial".
In considering the expenses incurred in making maps
section 93-8618 States:
" * * * the reasonable expenses for making a
map or maps if required, and necessary to be used
on trial or hearinq * * *". (Emphasis supplied.)
This specifically required the map to be used on trial or hear-
ing. The introduction in evidence of a map may not be necessary
if some use is made at trial and it is necessary to an under-
standing of the case. However, in the present case no use
whatever was made of the map and for this reason the abstractor's
fee connected therewith is not an allowable cost.
Appellant's final objection is to the attorney fees
awarded respondents, which were incurred in providing proof
of the matters of fact set forth in respondents' request for
admissions.
Rule 37 (c), M.R.Civ.P., in 1974 stated:
" * * * and if the party requesting the ad-
missions thereafter proves the genuineness of
any such document or the truth of any such
matter of fact, he may apply to the court for
d L .. ..
an order re~uirinsthe other wartv to Dav him
A
reasonable expenses incurred in making such
proof, including reasonable attorney's fees.
* * *" (Emphasis supplied.)
Rule 7 (b)(1), M.R.Civ.P. and Rule 5 (a), M.R.Civ.P. govern
how such an application is to be made. Rule 7(b)(1), M.R.Civ.P.
states:
"An application to the court for an order shall
be by motion which, unless made during a hearing
or trial, shall be made in writing, shall state
with particularity the grounds therefor, and
shall set forth the relief or order sought. The
requirement of writing is fulfilled if the motion
is stated in a written notice of the hearing of
the motion." (Emphasis supplied.)
Rule 5 (a), M.R.Civ.P. states:
" * * * every written motion other than one which
may be heard ex parte * * * shall be served upon
each of the parties affected thereby * * *".
(Emphasis supplied.)
Decisions rendered prior to the enactment of the Montana
Rules of Civil Procedure were in accord with the requirement of
Rule 5(a), M.R.Civ.P., and the purpose of the notice requirement
is best expressed in McVay v. District Court, 126 Mont. 382,
"While our Codes do not specify all the in-
stances in which notice of the time for making
or presenting an intended motion must be given,
the general rule is that a party interested
in resisting the relief sought by a motion has
a right to notice and an opportunity to be heard.
* * *
"The requirement that timely notice be given
of the making of the proposed motion is to
afford opposing counsel the opportunity to be
present and intelligently to oppose the motion
when made." (Emphasis supplied.)
Here, respondents incorporated their "Motion" within
their proposed findings of fact and conclusions of law. The
first notice to appellant of this motion was when the district
court awarded attorney fees to respondents in its findings of
fact and conclusions of law. Such notice is insufficient to
allow a resisting party "the opportunity to be present and
intelligently to oppose the motion when made." For this reason,
the award of attorney fees was error.
This cause is affirmed in part and reversed in part.
It is remanded to the district court to amend the findings of
fact, conclusions of law, and the judgment and to retax costs
in accordance with this decision.
We concur:
Chief Justice
H
W&J-&---
Justices