No. 01-044 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 295N 

SITZ ANGUS FARMS LIMITED PARTNERSHIP, 

a Montana Limited Partnership, 

Plaintiff, Respondent and Cross-Appellant, 

v. 

EDWARD J. DALLASERRA, JR., and 

DONALD A. DALLASERRA, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

Honorable Frank M. Davis, Judge Presiding 

COUNSEL OF RECORD: 

For Appellants: 

Holly Jo Franz, Gough, Shanahan and Johnson, Helena, Montana 

For Respondent: 

John E. Bloomquist & Patti L. Rowland, Doney, Crowley, Bloomquist 

and Uda, Helena, Montana 

Submitted on Briefs: November 8, 2001 

 Decided: December 12, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1996 Internal Operating Rules, the following decision shall not be 

cited as precedent but shall be filed as a public document with the 

Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of 

noncitable cases issued by this Court.

¶2 Appellants, Edward J. Dallaserra, Jr., and Donald A. 

Dallaserra (Dallaserras), appeal from the findings of fact and 

conclusions of law entered by the Montana Fifth Judicial District 

Court, Beaverhead County, declaring ownership and interests in 

Blomquist Spring and Blomquist Reservoir. Sitz Angus Farms (Sitz) 

cross-appeals the District Court’s decision denying attorney fees 

to Sitz as the prevailing party. 

¶3 We affirm in part, reverse in part, and remand. 

¶4 We rephrase the issues on appeal as follows: 

¶5 1. Did the District Court exceed its jurisdiction when 

granting declaratory relief regarding water rights to Blomquist 

Spring and water storage rights in Blomquist Reservoir? 

¶6 2. Did the District Court err by denying Appellants’ postjudgment motion to certify the parties’ underlying water rights 

claims to the Montana Water Court?

¶7 3. Did the District Court err in denying Appellants’ motion 

to amend the judgment to conform to the findings of fact and 

conclusions of law entered by the District Court?

¶8 4. Did the District Court err in denying Appellants’ motion 

for a new trial?

¶9 5. Did the District Court err in denying the 

Respondent/Cross-Appellant an award of costs and attorney fees 

pursuant to § 70-17-112, MCA?
3 

BACKGROUND

¶10 Dallaserras and Sitz own adjacent pieces of property. Both 

pieces of property were previously owned by John E. Blomquist (Mr. 

Blomquist), now deceased. In 1944, Mr. Blomquist filed a Notice of 

Appropriation of Water Right in Beaverhead County, claiming the 

water of certain springs. In the same year, Mr. Blomquist and his 

son Emmett E. Blomquist (Emmett) developed what is known as the 

Blomquist Spring and developed and constructed a reservoir known as 

the Blomquist Reservoir. Water from Blomquist Spring flows in a 

southeasterly direction and is conveyed to the reservoir by means 

of a channel or ditch constructed by Mr. Blomquist. 

¶11 The ditch, or channel, conveying water from Blomquist Spring 

currently flows through Blomquist Reservoir to a headgate control 

device located at the reservoir dam impoundment. Water from 

Blomquist Spring is stored in Blomquist Reservoir when the water 

level in the reservoir is sufficient to inundate the channel or 

ditch, or when the headgate is closed and the reservoir fills. 

¶12 The reservoir has two headgate outlets situated at the dam. 

The north headgate is situated at the terminus of the ditch from 

Blomquist Spring and controls the release of water to a ditch which 

courses across Dallaserras’ property to supply water to both 

Dallaserras and Sitz. The south headgate is situated at the 

southern edge of the dam and controls the release of water to a 

ditch system which transports water to Dallaserras’ pump site. 

Water released from the south headgate is not available to Sitz at 

Sitz’s pump site during the irrigation season but has historically 
4 

supplied stockwater to Sitz’s property in the fall and winter. 

Water released from the south headgate bypasses the water 

distribution and measuring device, known as a “Splitter Box,” which 

is situated in the ditch conveying irrigation water from the north 

headgate. 

¶13 The Blomquist Reservoir is situated on the property currently 

owned by Dallaserras. The Blomquist Spring and Blomquist Reservoir 

were part of a large system used to benefit the property originally 

owned by Mr. Blomquist, and the reservoir was required in order to 

control and convey the water derived from Blomquist Spring. 

¶14 Mr. Blomquist first conveyed a portion of his property by a 

deed dated April 15, 1955, conveying to his son and daughter-inlaw, Emmett and Voris C. Blomquist (Voris), an undivided onequarter interest in the spring and reservoir along with an 

unqualified easement across his land for the purpose of conveying 

water to the land of Emmett and Voris. 

¶15 In May 1955, Emmett purchased from his brother 80 additional 

acres of property that was also previously owned by his father. 

According to Emmett, the property purchased from his brother 

contained the water rights from Willow Creek, which Emmett then 

traded to his father in exchange for a greater share of the right 

to the water from Blomquist Spring. Water from Willow Creek also 

feeds into the Blomquist Reservoir. A deed transferring the Willow 

Creek water rights from Emmett to his father was executed in 1958. 

 No similar deed, however, was executed to transfer additional 
5 

spring rights from Mr. Blomquist to Emmett. It is this property, 

formerly owned by Emmett and Voris, that is now owned by Sitz. 

¶16 In 1961, Mr. Blomquist transferred his remaining property to 

Don T. McCandless and T.M. McCandless (McCandlesses), along with 

“[a]ll water and water rights, ditches and ditch rights thereunto 

belonging or in any ways appertaining, including but not limited to 

the right to use 500 inches of water of that certain unnamed spring 

the notice of appropriation of which is recorded in Book 73 of 

Water Rights, at page 351, official records of Beaverhead County, 

Montana . . . .” 

¶17 In 1974, Emmett, Voris, and the McCandlesses executed and 

recorded an instrument entitled “Correction Conveyance of Water 

Right.” Sitz and Dallaserras agree that this instrument was 

completed by their predecessors, but disagree on the effect the 

instrument had on the legal interests of each party to the 

Blomquist Reservoir. The Correction Conveyance described the 

Blomquist and McCandless interest as follows: 

That T.M. McCandless and Verla McCandless are the owners 

of a two-thirds (2/3) interest, and that Emmett E. 

Blomquist and Voris C. Blomquist are the owners of a onethird (1/3) interest in and to that certain unnamed 

spring and the waters derived therefrom, together with 

all rights applicable thereto . . . . 

At trial, Emmett, a party to the correction instrument, testified 

that the intention of the parties was to split the waters derived 

from Blomquist Spring on a one-third/two-third basis. 
6 

¶18 In 1983, Emmett and Voris sold their property to Mallon Ranch 

Company under a contract for deed. This transfer included all 

water and water rights, ditches and ditch rights appurtenant to the 

real property including, but not limited to, one-third of the flow 

of the “Big Spring” and “all tenements, hereditaments, and 

appurtenances thereto belonging or in anywise appertaining.” 

¶19 In June 1997, Sitz purchased the property from the Mallon 

Ranch Company. The “Assumption Agreement” by Sitz and Mallon 

contained identical language regarding water rights and 

appurtenances. Based on previous claims and conveyances, 

Dallaserras agree that Sitz is entitled to one-third of the flow of 

Blomquist Spring for Sitz’s property and that Dallaserras are 

entitled to the remaining two-thirds flow of Blomquist Spring for 

use on their own property. Sitz and Dallaserras are also in 

agreement that Dallaserras are entitled to all of the “Willow 

Creek” water for use on Dallaserras’ land. They disagree, however, 

on whether Sitz is entitled to use Blomquist Reservoir to store 

Sitz’s share of water generated from Blomquist Spring. As a result 

of the dispute over ownership of storage water in Blomquist 

Reservoir and a dispute over Sitz accessing the north headgate over 

Dallaserras’ land for the purpose of adjusting the amount of water 

released by the north headgate into the north ditch, Dallaserras 

placed a lock on the north headgate and blocked access across their 

land from the highway. Dallaserras’ actions led to Sitz filing its 

complaint in June 1999. 
7 

¶20 Sitz sought from the District Court a declaratory judgment 

determining that it owns a one-third interest in the direct flow 

from Blomquist Spring and that it additionally has a right to any 

of its one-third interest that may be stored in Blomquist 

Reservoir. Sitz also sought damages and injunctive relief against 

Dallaserras for alleged interference with Sitz’s primary and 

secondary ditch easements and for Dallaserras’ alleged interference 

with Sitz’s use of the water by locking the north headgate and 

blocking access across their land. Finally, Sitz requested that 

the District Court order Dallaserras to install measuring devices 

and to remedy a defective condition of the Splitter Box. 

¶21 After a bench trial, the District Court entered findings of 

fact and conclusions of law and concluded that Sitz was entitled to 

a one-third interest in the water derived or generated from 

Blomquist Spring. The District Court concluded that Sitz was 

entitled to a one-third interest in and to Blomquist Reservoir to 

store and convey its interest in water derived or generated from 

Blomquist Spring. The District Court further concluded that Sitz’s 

interest included primary and secondary easements for the 

conveyance of the water and for access to all conveyance works 

across Dallaserras’ property consistent with previous owners’ 

historic access. 

¶22 In its judgment the District Court permanently enjoined 

Dallaserras from locking headgates, access gates, and from moving 

or interfering with the distribution works and enjoined Dallaserras 
8 

from any further activities interfering with Sitz’s rights to 

peaceably enjoy its interest. 

¶23 In its findings and conclusions, the District Court also 

ordered Dallaserras to repair and replace the Splitter Box and 

ordered the parties to develop an equitable and workable plan to 

distribute to each party their respective one-third two-third 

interest, splitting costs between Sitz and Dallaserras according to 

ownership interest. Finally, the District Court ordered that each 

party bear their own respective costs and attorney fees. 

¶24 Dallaserras now appeal. Sitz cross-appeals the District 

Court’s denial of its request for costs and reasonable attorney 

fees as the prevailing party. 

DISCUSSION

¶25 1. Did the District Court exceed its jurisdiction when 

granting declaratory relief pertaining to water rights in Blomquist 

Spring and water storage rights in Blomquist Reservoir?

¶26 Dallaserras contend that the District Court’s declaratory 

ruling that Sitz owned a one-third interest in the water from 

Blomquist Spring and a one-third interest to store the water in 

Blomquist Reservoir is a de facto adjudication of water rights 

which lies exclusively within the jurisdiction of the Montana Water 

Court. Dallaserras argue that, because the water court had issued 

no previous decrees regarding water rights to Blomquist Spring or 

Blomquist Reservoir, the District Court did not have jurisdiction 

to issue an injunction or clarify entitlements based upon any 

former decree of water rights. 
9 

¶27 Sitz first responds that its one-third ownership interest in 

the water from Blomquist Spring was admitted by Dallaserras in 

their Answer, stipulated to as a judicial admission in the pretrial 

order, and recognized at trial. Sitz contends that the inclusion 

of this fact in the District Court’s findings of fact is nothing 

more than a recognition, rather than an adjudication, by the 

District Court of agreed upon water rights in Blomquist Spring. 

¶28 Second, Sitz responds that the District Court’s declaration of 

interests in Blomquist Reservoir was a declaration of property 

rights, wholly apart and separate from a declaration or 

adjudication of water rights. Sitz argues that such a declaration 

of property rights in Blomquist Reservoir consisted of an 

adjudication of easement and ownership interests in the conveyance 

system developed by Sitz’s and Dallaserras’ predecessors, and 

consisted of and required no adjudication of priority dates, 

established flow rates, points of diversion, places of use, acres 

irrigated, nor any other elements or parameters of the rights as 

would be adjudicated by the Water Court. 

¶29 Dallaserras rely on this Court’s decision in State ex rel. 

Jones v. District Court (1997), 283 Mont. 1, 938 P.2d 1312. In 

Jones, the four district court judges of the Fourth Judicial 

District ordered that a 1902 decree, that decreed 27 water rights 

on Carlton Creek, be updated. The judges were concerned about the 

deteriorating physical state of the 1902 decree in conjunction with 

the fact that it would be necessary for the water commissioners, as 
10 

well as the public, to handle the decree. Jones, 283 Mont. at 3-4, 

938 P.2d at 1314-15. 

¶30 The Montana Water Court, however, was also in the process of 

adjudicating the rights to Carlton Creek, which included 92 claims 

for Carlton Creek waters. Had the Updated Decree been allowed to 

stand, it would have controlled the determination and 

administration of water rights on Carlton Creek. 

¶31 The order authorizing the updated decree provided in part: 

Finding of Fact 3 – To remedy this situation the 1902 

decree should be reworked and expanded to include 

additional information such as the land description of 

the place of use, any subsequent court order defining a 

decreed right, the judicial knowledge of the court 

relating to present use of water, and information 

regarding ditches, lake storage water or any other 

information that is necessary for a water commissioner to 

have to properly perform his duty. 

Order number 4 – That the updated decree shall supercede 

[sic] all prior pleadings in this action relating to the 

matters contained in the updated Decree. 

Jones, 283 Mont. at 6, 938 P.2d at 1315-16. 

¶32 The resulting Updated Decree decreed “the ownership, priority 

date, flow rate, place of use and means of diversion of the various 

rights.” Jones, 283 Mont. at 6, 938 P.2d at 1316. It thus 

constituted a de facto adjudication of water rights, as an 

adjudication of said elements are within the exclusive jurisdiction 

of the Water Court. Jones, 283 Mont. at 6, 938 P.2d at 1316. We 

thus held that, pursuant to § 85-2-234(6), MCA, the district court 

exceeded its jurisdiction. “[W]hile a district court may grant 

injunctive or other relief which is necessary and appropriate to 

preserve property rights or the status quo pending issuance of a 
11 

final decree, the district court lacks jurisdiction to issue a 

final decree with regard to the water right.” Jones, 283 Mont. at 

7, 938 P.2d at 1316. 

¶33 We agree with Sitz that Jones is not applicable to the present 

situation. As noted by Sitz, the pretrial order reflects an 

agreement between Sitz and Dallaserras that Sitz was entitled to 

one-third of the flow of Blomquist Spring. Likewise, in opening 

statement at trial, counsel for Dallaserras stated: 

One, Sitzes have asked this Court to declare that they’re 

entitled to one-third of the flow from the spring. We 

have no objection to that. We agree with that. 

Secondly, Sitz is asking this Court to declare that 

they’re entitled to store in the reservoir one-third of 

their water if they wish. And we do object to that . . . 

. 

¶34 The District Court’s declaration that Sitz owns one-third and 

Dallaserras own two-thirds interest in Blomquist Spring was not an 

adjudication of water rights, but merely a recognition that the 

parties presented no question of fact regarding ownership of such 

water rights based upon previous use and conveyances. 

¶35 Further, this Court has previously held that water rights and 

property rights, such as ditch rights, are entirely bifurcated and 

thus separate from one another. See Mildenberger v. Galbraith

(1991), 249 Mont. 161, 166, 815 P.2d 130, 134 (citation omitted); 

also see Smith v. Krutar (1969), 153 Mont. 325, 331, 457 P.2d 459, 

462 (concluding that a water right and a ditch right may exist as 

separate and independent species of property). 

¶36 The determination that Sitz owned a one-third interest in 

Blomquist Reservoir in no way adjudicated existing water rights. 
12 

As the District Court ably noted, this was not a water rights case, 

but a secondary easement case dealing with, among other issues, 

Sitz’s interest to store and convey water through and across 

Dallaserras’ property via Blomquist Reservoir, which, it 

determined, was an appurtenance to the Sitz property. Notably, the 

District Court did not adjudicate priority dates, establish flow 

rates, points of diversion, places of use, acres irrigated, nor any 

other elements or parameters of each parties’ water rights. 

Rather, its determination that Sitz owned a one-third interest in 

Blomquist Reservoir was an adjudication of easement and ownership 

interests in the conveyance system. Such adjudication of property 

rights is properly within the jurisdiction of the District Court. 

¶37 We hold, therefore, that the District Court did not exceed its 

jurisdiction. Its decision is affirmed accordingly. 

¶38 2. Did the District Court err by denying Appellants’ postjudgment motion to certify the parties’ underlying water rights 

claims to the Montana Water Court?

¶39 Dallaserras contend that, as the District Court has no 

jurisdiction over water rights, it erred in denying Dallaserras’ 

post-judgment motion for certification of the parties’ claims to 

the Montana Water Court. However, as we have already concluded 

that the District Court did not exercise authority outside its 

jurisdiction, as it did not adjudicate elements of either parties’ 

water rights claims, we likewise conclude that the District Court 

did not err in denying Dallaserras’ post-judgment motion for 

certification to the Water Court. 

¶40 The denial of Dallaserras’ post-judgment motion is affirmed. 
13 

¶41 3. Did the District Court err in denying Appellants’ motion 

to amend the judgment to conform to the findings of fact and 

conclusions of law entered by the District Court?

¶42 The standard of review of discretionary trial court rulings is 

abuse of discretion. Harwood v. Glacier Electric Co-op, Inc.

(1997), 285 Mont. 481, 492, 949 P.2d 651, 658 (citation omitted). 

Discretionary trial court rulings include trial administration 

issues and post-trial motions. Harwood, 285 Mont. at 492, 949 P.2d 

at 658. 

¶43 Dallaserras contend that the judgment entered by the District 

Court addressed a number of issues which were not addressed in the 

court’s findings of fact and conclusions of law, including the 

granting of injunctive relief, the requirement for Dallaserras to 

move the Splitter Box at their sole cost, the specific definition 

of Sitz’s secondary ditch easement, and the finding that 

Dallaserras interfered with Sitz’s easement. Dallaserras thus 

argue that the judgment is not supported by the findings of fact 

and requests that this Court remand to the District Court for entry 

of judgment consistent with its findings. 

¶44 Sitz responds that the District Court’s relief was within its 

equitable authority, that the judgment was grounded upon the 

evidence presented at trial and properly based on the court’s 

findings, conclusions, and memorandum. Sitz prepared the judgment 

at the direction of the District Court and submitted a copy to 

Dallaserras for comment. After nearly two weeks, Sitz received no 

comment from Dallaserras and submitted the judgment to the District 

Court for consideration. 
14 

¶45 This Court has previously stated that: 

[F]indings of fact and conclusions of law are not the 

judgment, but merely the foundation for the judgment. 

This foundation need not consist of a multitude of 

evidentiary facts, but must be comprised of ultimate 

facts. In other words, the findings of fact required by 

Rule 52(a) is nothing more than a recordation of the 

essential and determining facts upon which the District 

Court rested its conclusions of law and without which the 

District Court’s judgment would lack support. 

Wareing v. Schreckendgust (1996), 280 Mont. 196, 207, 930 P.2d 37, 

44 (citation omitted). 

¶46 While the findings of fact, conclusions of law and memorandum 

of the District Court do not directly address the granting of 

injunctive relief to Sitz, the District Court included in the 

findings the ultimate fact that Dallaserras’ control of the 

distribution system of Blomquist Reservoir “has deprived and is 

depriving Sitz” the full use of its one-third interest in the water 

from Blomquist Spring. This finding is sufficient to support the 

injunctive relief in the judgment, and additionally supports 

inclusion in the judgment that the actions of Dallaserras 

interfered with Sitz’s peaceful enjoyment associated with its onethird interest. 

¶47 Likewise, the above findings, in addition to the District 

Court’s finding that Blomquist Reservoir is an appurtenance to the 

respective properties, supports the inclusion of the specific 

definition of Sitz’s secondary ditch easement in the court’s 

judgment. 

¶48 We do agree with Dallaserras that the judgment is 

inconsistent with the District Court’s findings of fact and 

conclusions of law wherein the judgment orders that Dallaserras 
15 

shall bear all costs associated with repairing and replacing the 

Splitter Box in a manner which results in an accurate and reliable 

distribution of water according to each parties’ interest. The 

District Court specifically states in finding # 11: 

The Court finds that any cost necessary to implement a 

practical distribution plan should be borne by the 

parties, 2/3-1/3. If a water master or commissioner is 

necessary, they should likewise share that cost. 

¶49 The judgment, in paragraph 6, thus erroneously requires 

Dallaserras to bear all costs associated with repairing and 

replacing the Splitter Box. We hold, therefore, that the District 

Court erred in ordering that Dallaserras bear all costs associated 

with repairing and replacing the Splitter Box. This portion of the 

judgment is reversed and remanded accordingly. Upon remand, the 

District Court shall amend the judgment to reflect that the parties 

shall share costs according to their respective interests. 

¶50 The decision of the District Court in denying Dallaserras’ 

motion is otherwise affirmed. 

¶51 4. Did the District Court err in denying Appellants’ motion 

for a new trial?

¶52 Dallaserras contend that a prejudicial irregularity occurred 

during trial that prevented them from receiving a fair trial. 

According to an affidavit submitted by Dallaserras, the judge fell 

asleep during trial, missing all or portions of the testimony of 

Larry Lee Mallon (Mallon). Dallaserras argue that, as the judge 

did not avail himself of the opportunity to listen to Mallon’s 

testimony or observe his demeanor, the court was in no position to 

issue findings in this matter. 
16 

¶53 Dallaserras rely on this Court’s holding in Worden v. 

Alexander (1939), 108 Mont. 208, 90 P.2d 160, 161-62, wherein we 

stated: 

It has been held by this court that where a motion for a 

new trial is heard by a judge who did not try the case, 

such judge, not having seen the witnesses or heard their 

testimony and observed their demeanor on the stand, was 

compelled to gain his knowledge of the case from the 

record alone, and was therefore in no better position to 

determine the motion than is this court, and hence his 

order does not carry with it the presumption usually 

indulged in favor of such order. 

¶54 Sitz responds that Dallaserras did not suffer prejudice as 

Mallon’s testimony did not support any of Dallaserras’ assertions, 

but rather, buttressed Sitz’s assertions in its complaint. 

Further, Sitz argues that even without Mallon’s testimony, the 

District Court received numerous documentary exhibits and the 

testimony of other witnesses, particularly the testimony of the 

former owner of the Sitz property, Emmett Blomquist. 

¶55 We agree with Sitz and find Dallaserras’ reliance on Worden

unpersuasive. This Court’s holding in Worden broadly refers to a 

situation in which a trial judge has not had the benefit of 

listening to or observing any trial witnesses, and was thus in no 

better position than this Court to review a transcript and grant or 

deny a motion for a new trial. That is not the case presently 

before this Court. 

¶56 In the present situation, it is not alleged that the trial 

judge did not listen to or observe the other seven witnesses who 

testified at trial. Prejudice thus cannot be presumed. Rather, a 

review of the transcript is necessary and helpful. The transcript 
17 

reveals that Larry Mallon testified that he was familiar with the 

irrigation practices on both the Dallaserras and the Sitz 

properties. Mallon testified that some of his irrigation water 

probably flowed from water stored in the Blomquist Reservoir, that 

he participated in maintenance of the channels, spring and the 

reservoir and paid for any maintenance according to his one-third 

interest. He further testified that he commonly accessed the 

Splitter Box and pump site location by crossing over the 

Dallaserras property from the Highway 91 North access point. 

Mallon also testified, based on what he had been told by Emmett, 

that he believed his one-third interest included the right to store 

water in the reservoir and that he would access the reservoir if he 

knew there was some water in it that he could use. 

¶57 We note that the substance of Larry Mallon’s testimony lends 

support to Sitz’s allegations and offers nothing to substantiate 

Dallaserras’ assertions. As a result of our review of the entire 

transcript, we conclude that, even without Mallon’s testimony, the 

District Court’s findings of fact are supported by substantial 

evidence, particularly the testimony of the former owner of the 

Sitz property, Emmett. 

¶58 This Court reviews the findings of a district court sitting 

without a jury to determine if the court’s findings are clearly 

erroneous. See Rule 52(a), M.R.Civ.P. A district court’s findings 

are clearly erroneous if substantial credible evidence does not 

support them, if the trial court has misapprehended the effect of 

the evidence or if a review of the record leaves this Court with 
18 

the definite and firm conviction that a mistake has been committed. 

Ray v. Nansel, 2002 MT 191, ¶ 19, 311 Mont. 135, ¶ 19, 53 P.3d 

870, ¶ 19 (citation omitted). 

¶59 As the District Court’s findings are supported by substantial 

evidence, apart from Mallon’s testimony, we conclude that its 

findings are not clearly erroneous and that Dallaserras did not 

suffer prejudice even in the event that the trial judge may have 

missed all or part of Mallon’s testimony. 

¶60 5. Did the District Court err in denying the 

Respondent/Cross-Appellant an award of costs and attorney fees 

pursuant to § 70-17-112, MCA?

¶61 In its July 2000, order, the District Court found that 

“Dallaserras’ control of the distribution system of the reservoir 

water both from the spring and Willow Creek, has deprived and is 

depriving Sitz” of the full use of what Dallaserras admit is a onethird right to the water originating from Blomquist Spring. 

¶62 In its attached Memorandum, the District Court stated: 

“Although downright arrogant and unneighborly, the Court gives them 

the benefit of the doubt as to what they perceived to be a good 

faith position. Thus in the Court’s discretion, no costs or 

attorney fees are imposed. Further interference to a secondary 

easement right would surely justify such sanctions.” 

¶63 Sitz contends that it is the prevailing party in this action 

and, as the prevailing party, is entitled to costs and attorney 

fees pursuant to § 70-17-112(5), MCA. Said section provides: 

If a legal action is brought to enforce the provisions of 

this section, the prevailing party is entitled to costs 

and reasonable attorney’s fees. 
19 

Sitz brought this action, in part, pursuant to § 70-17-112(1), MCA, 

which provides: 

A person with a canal or ditch easement has a secondary 

easement to enter, inspect, repair, and maintain a canal 

or ditch. 

In this action, Sitz pled interference with its easement interests 

in Blomquist Reservoir, the attendant ditch, distribution system, 

and interference by Dallaserras of Sitz’s secondary easements to 

access said interests. 

¶64 Sitz obtained a ruling enforcing subsection (1), guaranteeing 

a secondary easement and preventing Dallaserras from encroaching or 

impairing said easement. As Sitz is the prevailing party in this 

action, pursuant to subsection (5), Sitz is also entitled to 

receive costs and reasonable attorney fees. Accordingly, as Sitz 

successfully enforced subsection (1), the District Court, pursuant 

to subsection (5), retained no discretion to deny costs and 

reasonable attorney fees. Said costs and attorney fees include 

those incurred by Sitz herein on appeal. See Kephart v. Portmann

(1993), 259 Mont. 232, 239, 855 P.2d 120, 124 (citing Sharon v. 

Hayden (1990), 246 Mont. 186, 189, 803 P.2d 1083, 1085). 

¶65 We hold that Sitz, as the prevailing party, is entitled to 

costs and reasonable attorney fees pursuant to § 70-17-112(5), MCA. 

 We reverse and remand accordingly. 

¶66 Affirmed in part, reversed in part, and remanded. 

/S/ JIM RICE 

We concur: 
20 

/S/ JAMES C. NELSON 

/S/ TERRY N. TRIEWEILER 

/S/ W. WILLIAM LEAPHART 

/S/ JIM REGNIER