NO. 88-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1388 

JOHN MILLER, JR., and WILLIAM 

E. TAYLOR, 

Plaintiffs and Appellants, 

-vsYELLOWSTONE COUNTY, YELLOF7STONE COUNTY 

COMMISSIONERS, GRACE M. EDWARDS, DWIGHT 

MacKAY, CONRAD BURNS, and YELLOWSTONE 

COUNTY TREASURER, MAY JENKINS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Parker Law Firm; Paul E Toennis, Billings, Montana 

For Respondent: 

Harold Hanser, County Attorey, Billings, Montana 

David W. Hoefer, Deputy County Attorney, Billings 

Submitted on Briefs: Aug. 18, 1988 

Decided: September 27, 1988 

Filed: SEP 2 7 1988' 

*/ 

Clerk 
Mr. Justice LTohn C. Harrison delivered the Opinion of the 

Court. 

Rural Special Improvement District No. 41 was created 

in 1938 by the County Commissioners of Yellowstone County for 

the installation of a water main having a diameter of four 

inches for the benefit of the owners within the District. In 

1986 the County Commissioners replaced the four-inch water 

main in the District with one having a diameter of twelve 

inches and assessed the cost thereof to the owners within the 

District as a maintenance cost. We hold in this appeal by 

John Miller, Jr. , from a summary judgment against him in the 

District Court, Thirteenth Judicial District, Yellowstone 

County, that the replacement of the water main was reconstruction, not maintenance, and reverse the District Court. 

The County was apparently forced to enlarge the water 

main because of the erection of a new county jail within the 

boundaries of the District. The issue on appeal is whether 

the replacement of a four-inch water main with a main of nine 

times greater capacity is mere maintenance. The question 

seems to answer itself. 

Under 5 7-12-2102, MCA, county commissioners are given 

broad power to order and create special improvement districts 

outside the limits of incorporated towns and cities for the 

purpose of building, constructing and acquiring all of the 

improvements allowed to city special improvement districts as 

described in 5 7-12-4102, MCA. Through the latter statute, 

the county commissioners thus have the power, whenever the 

public interest or convenience may require, to create special 

improvement districts "and order the acquisition, constructi-on, or reconstruction" of water mains and extensions of 
water mains. Section 7-12-4102 (2) (d) (iii) , MCA. (Emphasis 

added. ) 

Once a rural special improvement district has been 

created, and the improvements installed, the county 

commissioners have two options by which to defray the cost of 

maintenance. Under S 7-12-2120, it is made the duty of the 

county commissioners "to adequately and suitably maintain and 

preserve" the improvements and "to fully keep the same in 

proper repair and operation" by contract or otherwise as the 

board may determine. The whole cost of such maintaining, 

preserving or repairing the improvements under § 7-12-2120 is 

assessed to the entire district and paid by the property 

owners with their taxes. 

The other option for the county commissioners to pay 

maintenance costs is to create an improvement district 

maintenance fund under S 7-12-2162, MCA. Under this 

provision it is the duty of the county commissioners, before 

the first Monday in September of each year, to adopt a 

resolution assessing the whole cost of maintaining, 

preserving or repairing the improvements for that year 

against the property within the district. 

In this case, the County Commissioners apparently 

decided to proceed under S 7-12-2120, MCA, to replace the 

water line, and to charge the district property owners the 

cost of replacement as maintenance, preservation and repair 

of the water line, spread over five years. But whichever 

option was used, the applicable principles remain the same. 

No notice of the proposed replacement of the water line 

or opportunity to protest the replacement was given to the 

property owners within the District. 

It is obvious that the meanings of the words "maintenance," "preservation" or "repair" cannot be stretched to 

include the complete replacement of the water main, and its 
enlargement to nine times its capacity. A reconstruction 

occurred, for which the County Commissioners had the power to 

create a special improvement district under the statutes 

aforesaid. If the County Commissioners had proceeded to 

create a rural special improvement district for such reconstruction, the property owners would have been given notice 

of the intention to create the district (S 7-12-2105, MCA) 

and of their right to protest its creation or extension 

(§ 7-12-2109, MCA). 

We hold that the replacement of the water line in this 

case was not maintenance, but rather, reconstruction. We 

therefore reverse the summary judgment as to the appellant 

John Miller, Jr. The other plaintiff, William E. Taylor, has 

not appealed, and the judgment of the District Court stands 

as to him. 

There were other issues raised both by Miller and the 

County in the District Court which were not reached because 

of the summary judgment. Those issues are not before us on 

this appeal. We therefore reverse and remand for further 

proceedings before the District Cou t in conformance with 5 

this opinion. 

We Concur: 

' Chief Justice /Y 

/ Justices 

Justice I - 

Mr. Justice Sheehy did not partici pate in this cause.