NO. 88-276
IN THE SUPREME COURT OF THE STATE OF MONTANA 1388

JOHN MILLER, JR., and WILLIAM E. TAYLOR, Plaintiffsand Appellants,-vsYELLOWSTONECOUNTY,YELLOF7STONE COUNTY COMMISSIONERS, GRACEM. 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, Judgepresiding. COUNSEL OF RECORD:
ForAppellant: ParkerLaw Firm; Paul E Toennis, Billings,Montana For Respondent: Harold Hanser,CountyAttorey, Billings,Montana David W. Hoefer, Deputy CountyAttorney, Billings

Submitted on Briefs: Aug. 18, 1988 Decided: September 27, 1988 Filed: 

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ClerkMr. Justice LTohn C. Harrison delivered the Opinion of the Court.

Rural Special Improvement District No. 41 was created in 1938by the County CommissionersofYellowstoneCounty 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 replacementof a four-inchwatermain with amain 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 improvementsallowed 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 interestor conveniencemay require, to create special improvement districts "and order the acquisition, constructi-on,or reconstruction" of water mains and extensions ofwater 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 optionsby which to defray the cost of maintenance. Under S 7-12-2120, it is made the duty of the county commissioners "to adequately and suitablymaintain 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 improvementsunder § 7-12-2120 is assessed to the entire district and paid by the property ownerswith 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 theproperty 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 theproposed replacementof thewater 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 itsenlargement to nine times its capacity. A reconstruction occurred, forwhich the County Commissionershad thepower 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 (S7-12-2105,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 JohnMiller, 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 

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We Concur:

' Chief Justice 

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Mr. Justice Sheehy did notpartici pate in this cause.