No. 13652 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

LEONARD ELIASON and R. E. INDRELAND, 

Plaintiffs and Appellants, 

ROBERT EVANS, 

Defendant and Respondent. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniels and Mizner, Deer Lodge, Montana 

M.K. Daniels argued, Deer Lodge, Montana 

For Respondent : 

Knight, Dahood and Mackay, Anaconda, Montana 

Conde F. Mackay argued, Anaconda, Montana 

Submitted: April 28, 1978 

Decided: 2 1 1918 

Filed : 

17 ?3:8 . - 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court . 

Plaintiffs appeal from an order of the District Court, 

Powell County, dissolving a temporary restraining order, 

denying plaintiff's motion for an injunction pendente lite, 

and adopting defendant's proposed findings of fact and conclusions of law. 

The action below involved three parties asserting 

conflicting water rights. The land involved is located in 

the Deer Lodge Valley in Powell County, approximately 8 miles 

south of Deer Lodge, Montana. All of the land is bounded on 

the west by Interstate 90 and on the east by the Clark Fork 

River. Defendant's land is located south and adjacent to 

land previously owned by Mr. and Mrs. Raymond Johnson. The 

Johnson's property has apparently passed to their daughter, 

Audrey Ragsdale. For clarity, this property will hereafter 

be referred to as the Johnson-Ragsdale land. Plaintiffs' 

land is situated immediately east of the Johnson-Ragsdale 

property. It is bounded on the immediate east by the Clark 

Fork River. All of the property slopes in a northeasterly 

direction toward the Clark Fork River. 

In approximately 1955, defendant used a drag line to 

construct a drainage ditch on the western boundary of his 

property. This ditch is estimated to be 35 feet wide and 

five to seven feet deep; it extends about one mile north before 

turning due east into a smaller irrigation ditch. The smaller 

ditch runs along the northern boundary of defendant's land. 

In the past, the excess water from the Evans' irrigation 

ditch emptied and drained onto the southeast corner of the 

Johnson-Ragsdale property. From there, it flowed over the 

Johnson-Ragsdale property and onto the property owned by the 

plaintiffs. 

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Plaintiffs and their predecessors in interest had, until 

1970, utilized this water to irrigate their hay fields and 

pastureland. 

In approximately 1971, defendant installed a sprinkler 

system on his property and discontinued using the water from 

his irrigation ditch. This action increased the volume of 

water flowing onto the Johnson-Ragsdale property and in 

turn, provided the plaintiffs' with more water for their 

land. However, the additional water caused extensive flooding 

and erosion of topsoil on the Johnson-Ragsdale property. 

To alleviate the destruction of their property, the 

Ragsdales built a drainage ditch across the western portion 

of their property. This ditch extended in a southerly 

direction until it merged with Evans' drainage and irrigation 

ditches. At the intersection of the Johnson-Ragsdale ditch and 

Evans' irrigation and drainage ditches, Evans built a small 

earthen dam which diverted all of the water into the JohnsonRagsdale ditch, to the eventual exclusion of the plaintiffs' land. 

The Ragsdales then filed an application for water appropriation 

on all water flowing from the Evans' ditch. With the dam in 

place, all water which normally flowed to the plaintiffs' 

land had ceased. The Ragsdales have been using the water to 

operate their sprinkling system. 

On several different occasions, the small earthen dam 

has become inoperable and water would resume flowing across 

the Johnson-Ragsdale property, to be later used by the plaintiffs. 

To permanently prevent the water from flowing to the plaintiffs, 

Evans, in 1975, brought in heavy equipment and built a much 

larger, more permanent dam. 

In response, the plaintiffs filed this action in Deer 

Lodge County to force the removal of the dam to allow the 

water to resume flowing to plaintiffs' land. Contemporaneous 

with filing their complaint, the plaintiffs obtained a 

temporary injunction against defendant and scheduled a show 

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cause hearing for June 14, 1976. The hearing was actually 

held on June 21, 1976, at which time the parties produced 

a total of five witnesses. 

The District Court did not enter an official order after 

the June 21, 1976 hearing. Instead, the District Court judge 

apparently requested the parties submit proposed findings of 

fact and conclusions of law. 

Defendant submitted his proposed findings and conclusions 

on August 5, 1976. The District Court adopted the defendant's 

findings by making a notation at the bottom of the submitted 

document, and by signing the order which concluded as follows: 

"Adopted this 6th day of August, 1976. Let Judgment be entered 

accordingly." 

On August 19, 1976, thirteen days after the Court adopted 

defendant's findings and conclusions, the plaintiffs submitted 

their proposed findings and conclusions, and they also filed 

an amended complaint. The amended complaint was substantially 

the same as the original except that in the amended complaint 

the plaintiffs had joined one additional defendant and also 

were more specific in their prayer for relief. 

On September 10, 1976, defendant filed a motion to 

dismiss the amended complaint on the grounds it did not state 

a claim upon which relief could be granted. On September 27, 

1976, without further action by the Court, defendant filed 

his answer, a general denial of plaintiffs' allegations. 

Defendant' answer was the last action taken by either party. 

On November 1, 1976, the District Court entered an order 

dissolving the temporary restraining order, denying plaintiffs' 

motion for an injunction pendente lite, and adopting the 

defendant's findings of fact and conclusions of law. It is 

from this last order that plaintiffs appeal. 

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In their appeal the plaintiffs contend (1) that the 

District Court deprived the plaintiffs of substantive 

property rights in a summary hearing; (2) that the District 

Court made an adjudication of the relative rights and priorities 

of the parties; and (3) that the findings of fact and conclusions 

of law do not conform to the evidence presented by the 

parties. 

Before addressing the specific issues presented by 

plaintiffs' appeal, we must resolve one preliminary question. 

Some disagreement exists among the parties concerning the 

purpose of the June 21, 1976 hearing. The confusion stems 

from certain language used by plaintiffs in their complaint 

and show cause order. A review of the District Court files 

shows the prayer in plaintiffs' original complaint sought a 

temporary restraining order, a show cause hearing and such 

further relief as this Court may deem proper. Then, in his 

order to show cause signed by another District judge, the 

plaintiffs used the phrase "show cause why he [defendant] 

should not be permanently restrained from interferring with 

said waters and diversions." (Emphasis and brackets added). 

Based on this language, defendant contends both parties 

understood the hearing on June 21st would be on the "merits" 

and would finally settle plaintiffs' water right claim. We 

cannot accept this contention. 

It is well settled that a temporary restraining order 

is an interlocutory order issued often on an ex parte basis. 

The restraining order is intended to preserve the status quo 

until a show cause hearing can be held. Electric Co-op 

Inc. v. Ferguson (1951), 124 Mont. 543, 554, 227 P.2d 597. A 

temporary restraining order is effective only for the reasonable 

time necessary to give notice and schedule a hearing to determine 
the appropriateness of an injunction pendente lite. State 

ex rel. Cook v. Dist. Court (1937), 105 Mont. 72, 75, 69 

P. 2d 746. See also: Boyer v. Karagacin (1978) , Mont . 

I- P.2d , 35 St.Rep. 939. 

We conclude that plaintiffs, in scheduling the show 

cause hearing for June 21, 1976, were trying to follow the 

standard procedures set up to obtain injunctions pendente 

lite. We can find no support for defendant's position that 

the June 21, 1976 hearing was agreed or understood to be a 

hearing on the "merits" of plaintiffs' claim. Absent clear 

evidence of an agreement or an understanding, we must assume 

plaintiffs intended the hearing to be limited to a finding 

on the appropriateness of an injunction pendente lite. 

Having determined the purpose of the June 21 hearing, 

we turn now to the merits of plaintiffs' assignments of 

error. For convenience, plaintiffs first and third assignments 

can be consolidated. Simply stated, plaintiffs contend the 

District Court should not have entered any findings of fact 

or conclusions of law. Plaintiffs take the position that 

any findings or conclusions dealing with the merits of their 

complaint are premature. They stress, although extensive 

testimony was received on June 21, 1976, the trial court did 

not receive enough evidence to resolve the merits of plaintiffs' 

claim. Defendant, on the other hand, contends the evidence 

produced at the hearing was sufficient to support the findings 

and conclusions of the District Court. 

After a careful examination of the conclusions of law, 

we believe plaintiffs are correct and the findings of fact 

and conclusions of law should be vacated. The conclusions, as 

adopted by the District Court, provide: 
"Plaintiffs have no water right to the water 

from the Evans ditch either by right of 

appropriation or by adverse use. 

"That an appropriation as to this water was 

filed and completed by Raymond J. Johnson 

and Lillian M. Johnson and is first in time 

to any claim made by Plaintiffs. 

"That Plaintiffs have no right to enter upon 

Defendant Evans property and in any way change, 

divert or alter the ditches located thereon." 

These conclusions were purportedly derived from evidence 

presented at the June 21, 1976 hearing and were entered on 

November 1, 1976. 

We have already stated that the primary purpose of the 

June 21, 1976 hearing was to determine the propriety of an 

injunction pendente lite. It is well established that 

substantive property rights cannot be adjudicated in a 

summary way. Ryan v. Quinlan (1912), 45 Mont. 521, 124 P. 

512. The general rule is that title to, or right of possession 

of real estate may not be litigated in an action for an 

injunction. Davis v. Burton (1952), 126 Mont. 137, 246 P.2d 

236. In the same vein, water rights should not be resolved 

in a preliminary proceeding for injunctive relief. 

The problems inherent in trying the merits of a case at 

an injunctive hearing are obvious. Typically, an injunction, 

or a motion for an injunction is filed very early in the 

proceedings, usually before discovery has been completed and 

often before the pleadings of the parties are complete. At 

such juncture, the District Courts normally do not have 

sufficient evidence to conclusively resolve the merits of 

the case. The present proceedings are a good example of why 

property rights should not be adjudicated in a summary 

fashion. 

The hearing in this case was scheduled for June 21, 

1976, only 11 days after the plaintiffs filed their original 

complaint. Indeed, because Rules 30 and 31, M.R.Civ.P.,contain 
restrictions as to when discovery can be commenced, it does 

not appear that plaintiffs could have been prepared on June 

21, 1976, for a final trial on the merits. 

Additionally, we find defendant had not yet filed his 

answer on June 21, 1976. This last fact is significant 

because regardless of how defective plaintiffs' first complaint 

may have been, under Rule 8, M.R.Civ.P., plaintiffs had an 

absolute right to amend their complaint prior to the time the 

answer was filed. 

Accordingly, we hold plaintiffs' allegations were not 

ripe for final decision on June 21, 1976. The trial court 

should have limited its inquiry to the appropriateness of an 

injunction pendente lite. Since its inquiry and subsequent 

decision went beyond these limits, the findings of fact 

and conclusions of law must be vacated. 

We note that plaintiffs later filed an amended complaint 

in this action. The new complaint raises the possibility 

that plaintiffs may recover if they can establish a valid 

water right. Under the circumstances recovery can possibly 

be predicated on section 89-801, R.C.M. 1947, which was in 

effect during the crucial time periods involved in this case. 

That section allows "waste" water to be appropriated if the 

requisites of the statute are met. The plaintiffs, of 

course, bear the burden to prove a valid appropriation and 

any discussion of the merits of their claim would be premature. 

Today's decision simply vacates the findings of fact and conclusions of law entered by the District Court. Additionally, 

since plaintiffs did not challenge the denial of their motion 

for an injunction pendente lite, the trial court's determination 

on the matter is affirmed. 
The order is vacated and this case is remanded to the 

District Court for proceedings consistent with this opinion. 

We Concur: 

%&* jkk-4 Chief Justice