No. 13261 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

WILLIAM LUPPOLD , 

Plaintiff and Respondent, 

LEN LEWIS et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fourteenth Judicial 

District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Patrick F. Hooks appeared, Townsend, Montana 

Loble, Picotte and Pauly, Helena, Montana 

Bruce Loble argued and Henry Loble argued, Helena, 

Montana 

For Respondent: . 

John V. Potter, Jr. argued, White Sulphur Springs, 

Montana 

Moore and Rice, Bozeman, Montana 

Perry J. Moore argued, Bozeman, Montana 

Submitted: January 18, 1977 

Decided : APR 1 3 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 respondents' predecessors in interest were parties to the 1890 

adjudication, wherein they received the following rights: 

Party Priority of Right Tota,l Inches 

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 contend that Four Mile Creek was adjudged in the 1890 decree, specifically 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 complaint 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 repeatedly 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 favorable to the prevailing party in the district court, and the credibility 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 . P.2d I - , 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) Substantive 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. Appellant 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 dissatisfied with the method of distribution by the water commissioner 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 dissatisfied 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 confronted the water commissioner about this shortage. 

The district court was presented with conflicting testimony. 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 no - water users or owners were 

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 binding 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 Department 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 commissioner 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 - no bond. 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 distribution, the instructions given by the district court must be binding 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 controversy 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 purpose of an action pursuant to section 89-1015, is not to adjudicate 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 constitute the yardstick for the consideration of instructions 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 meaning. 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 different interpretations. First, the respective lands owned by 

the parties to whom water was decreed were not identified. Second, 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 evidence 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 

"Geo. F. Danzer 100 " It June, 1883" 

(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. Anderson, 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 introduced 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 tributary status nor change a point of diversion in an action pursuant 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 evidenced 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 FourMile 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 tributary of Cottonwood Creek; that is an adjudicated 

fact, and evidence to the contrary will not be 
heard until a change in the condition subsequent 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 permitting her to use the water when those conditions 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 cannot 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. Another 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 headgate 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 permission 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 objections 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 prejudice, 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 litigation 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 section 93-8618, R.C.M. 1947, as contended by respondents, a statute 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 of cosk~ of such hearing as mawear +o 

him to be.>s+ and 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 dismissed, 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 hearing. The introduction in evidence of a map may not be necessary 

if some use is made at trial and it is necessary to an understanding 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 admissions thereafter proves the genuineness of 

any such document or the truth of any such 

matter of fact, he may apply to the court for 

an order re~uirins d the other wartv L A to Dav .. .. him 

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 instances 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. 

Chief Justice H 

We concur: 

W&J-&--- Justices