No. 86-454 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

BERNIE A. SWIFT, pro se spokesman; 

CHARLES F. TREECE, pro se; MAY VALLANCE, 

pro se; ADELBERT E. REYNOLDS, pro se; 

ELLA SHARP, pro se; VICTOR H. WARNER, 

pro se; and DEAN L. WALROD, pro se, 

Plaintiffs and Appellants, 

-vsSTATE OF MONTANA, DEPARTMENT OF NATURAL 

RESOURCES & CONSERVATION, and DALY DITCHES 

IRRIGATION DISTRICT, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Judith A. Loring, Hamilton, Montana 

For Respondent : 

Loble & Pauly; Lester H. Loble, 11, Helena, Montana 

Larry Persson, Hamilton, Montana 

&PI; 2 . , r 

- Filed: 

Submitted on Briefs: Feb. 13, 1987 

Decided: April 21, 1987 

e 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Appellants appeal an order of the District Court of the 

Fourth Judicial District in and for Ravalli County, Montana, 

dismissing with prejudice a complaint filed in that court. 

We affirm. 

The pertinent facts are those in In re Petition for 

Organization and Establishment of an Irrigation District in 

Ravalli County (Mont. 1984), 680 P.2d 944, 41 St.Rep. 658, 

the Daly Ditch case. Briefly, at the turn of the century the 

Ravalli Land and Irrigation Company included water users who 

had rights to use water from the Bitterroot River and users 

with rights to use water from Skalkaho Creek. Water from the 

river is diverted primarily by way of the Republican Ditch 

and the Hedge Ditch, both of which cross Skalkaho Creek. 

Because of geography it is impossible to irrigate certain 

lands with water from the ditches. The owners of land below 

the ditches who owned rights to the use of Skalkaho Creek 

water permitted a diversion of these waters to lands above 

the ditches in exchange for the use of water from the 

ditches. A transfer of right, title and interest of the 

Ravalli Land and Irrigation Company to the State Conservation 

Board in 1942 continued this exchange. The Montana 

Department of Natural Resources and Conservation (DNRC) is 

the successor to the State Water Conservation Board. 

Because of significant financial losses and the need 

for extensive and costly repairs, the 1979 legislature 

directed the DNRC to dispose of the project by sale or 

abandonment. See S 85-1-401 et.seq., MCA. An action was 

brought in the District Court to organize the Daly Ditches 

Irrigation District (DDID) for the purpose of taking over 

from DNRC operation and maintenance of the Daly Ditch 
project. The DNRC had attempted unilaterally to revoke its 

consent to the exchange agreements by sending letters of 

cancellation and refused to deliver ditch water in exchange 

for Skalkaho Creek water. 

In its order establishing the DDID, the District Court 

found that certain Skalkaho Creek exchange water users had 

been damaged by refusal of the DNRC to deliver water. The 

District Court said: 

It is fair and equitable that the 

Skalkaho Creek Exchange water user 

individuals having tenth or superior 

water rights will receive water from the 

Daly Ditch Water Project on the exchange 

basis and receive a credit against the 

cost allocable to them for the operation, 

maintenance, replacement or 

reconstruction of Republican or Hedge 

diversions as well as on account of the 

purchase of water from Painted Rock Water 

Project. This credit should exist for a 

fixed number of years. 

We affirmed the District Court in the Daly Ditch case, supra, 

and remanded to allow the District Court to determine the 

rights of the parties or other interested persons. 

The District Court issued an order January 24, 1986, 

which made a preliminary determination of those rights which 

fell within the priorities one through ten and those rights 

which fell within priorities eleven through seventeen. The 

Court specifically advised anyone who had a disagreement with 

its decision to present supporting evidence, and set a trial 

date of April 1 and 2 for people owning rights one through 

ten. Appellants filed a pro se complaint February 6, 1986, 

which the District Court characterized as a collateral attack 

on the Daly Ditch decision and an interlocutory appeal of the 

April trial before the court announced its decision. On June 

6 the court dismissed the complaint, with prejudice. The 
District Court's findings of fact, conclusions of law and 

judgment relative to the April hearing were issued August 4, 

1986. A notice of appeal to this Court was filed August 7. 

The appeal is directed to the dismissal of the complaint and 

not to the findings of the court relative to the April 

hearing. 

The appellants state they filed their pro se complaint 

in an attempt to invoke the lower court's jurisdiction to 

hear and determine questions having to do with the continuing 

validity of certain water exchange agreements. We agree with 

the District Court that the complaint does not state a claim 

upon which relief may be granted. It is a collateral attack 

on the final judgment of the District Court establishing the 

DDID. This Court affirmed the District Court's decision in 

the Daly Ditch case, which established the DDID. 

The general rule is that a judgment is not subject to 

collateral attack where the court has jurisdiction of the 

subject matter and of the parties. 

By 'collateral attack' is meant 'every 

proceeding in which the integrity of a 

judgment is challenged, except those made 

in the action wherein the judgment is 

rendered or by appeal, and &xcept suits 

brought to obtain decrees declaring 

judgments to be void - ab initio.' [Citing 

cases. ] 

Daly Bank v. State (1957) , 132 Mont. 387, 395, 318 P. 2d 230, 

236. The court's jurisdiction is not questioned. The 

appellants did not oppose establishment of the District. 

Insofar as paragraph one of the complaint is an attack (and 

this is unclear) on the establishment of the District, such 

an attack is a collateral attack on a final judgment and 

cannot be heard. 

Appellants argue they should be permitted to amend 

their complaint rather than having it dismissed with 
prejudice. We have long supported the general proposition 

that claims ought to be decided on their merits. See 

Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 504 ~.2d 

Appellants, however, have no complaint that has not 

been adjudicated on its merits. This Court in the Daly Ditch 

case found the DDID had an obligation to provide substitute 

water to the exchange water users. The District was required 

to take any exchange water user who joined. It was required 

to give a credit to all exchange water users who had priority 

rights one through ten for as long as they remained members 

of DDID. The rights of the exchange water users to obtain 

water on a basis that would take into account the use by the 

District of their appurtenant rights in the Skalkaho were 

recognized by granting them a credit if they joined the 

District. However, they will not receive use of the water on 

a cost free delivery basis. Those who chose not to join the 

DDID nonetheless retain all legal and equitable remedies to 

preserve their rights. 

If appellants' intent was to challenge these items, 

they are barred by the doctrine of res judicata. 

The criteria to be used in determining 

whether an action is barred by - res 

judicata are . . . 

(1) the parties or their privies must be 

the same; (2) the subject-matter of the 

action must be the same; (3) the issues 

must be the same, and must relate to the 

same subject-matter; and (4) the 

capacities of the persons must be the 

same in reference to the subject-matter 

and to the issues between them. 

Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 ~.2d 

929, 931. All four criteria are met. The parties, appellant 

exchange water users, the DNRC and the DDID are the same here 
as in the Daly Ditch case; the subject matter, the right to 

receive exchange water, is the same. The issue in both cases 

is the credit to be received by holders of Skalkaho Creek 

water rights junior to the tenth right. The capacities of 

the parties are the same in reference to the subject matter 

and the issues. 

Appellants could not at the time their complaint was 

filed be heard to complain that they "[were] and will 

continue to be impacted and damaged by virtue of 

establishment of Daly Ditches Irrigation District System 

encroaching upon and interfering with our decreed Skalkaho 

Creek water rights," because those rights had not been 

interfered with. If it were appellants1 intent to challenge 

the District Court's determination of rights to certain 

credits the Complaint is an interlocutory appeal, and thus 

fails to state a claim on which relief may be granted. 

The Order dismissing the Complaint with prejudice does 

not affect appellants' water rights. Neither does it deprive 

them of an appeal of the decision issued by the District 

Court August 4. Appellants are not left without opportunity 

for further judicial relief. 

In its Order dismissing the Complaint, the District 

Court also found dismissal was warranted because appellant 

Bernie Swift was practicing law without a license. We agree. 

Because Bernie Swift is not licensed to practice law in 

Montana he cannot act as spokesman for others before the 

court. / 

The order of the District Court is aff: