No. 14549 

### IN

### THE SUPRE2-B COURT OF THE STA!I'EOF IvDNI'ANA 1979

Plaintiff 

### andAppllant

## ,

Defendant 

### and Respondent.

Appeal from: District

### Court of the Fourteenth Judicial District, HonorableNat Allen, Judge presiding. Counsel of Record: For Appellant: Leaphart Law Firm, Helena, Mxtana For Respondent: -re, Rice, O'Connell & Refling, 

### Bozeman, mntana

Su3snittedon briefs: March 29, 1979 Decided: 

# 51979 Filed: 

## 'MFS" 

# - g 

### ,.)?.jMr. Justice Gene B. Daly delivered the Opinion of the Court. Plaintiff Holmstrom Land Company (Holmstrom) appeals from a judgment of the DistrictCourt, Fourteenth Judicial District, Meagher County, dated May 16 and July 19, 1978, in favor of William R. Hunter. This appeal involves a dispute over charges made by the water commissioner for dispensing waters inthe Newlan Creek Water 

### District. On October 18, 1976, the 

### DistrictCourt, Fourteenth Judicial District, in a proceeding concerning distribution of thewaters of Newlan Creek, issued an order giving instructions to the water commissioners who had been appointed to administer thewaters of Newlan Creek. The hearing resulting inthe order was held on complaint of Robert J. Weitz, president of Holmstrom. Holmstrom has decreed water rights inboth Sheep Creek and Newlan Creek located inMeagher County. Ituses Newlan Creek 

### as a conduit for the transfer of approximately 1000 inches of Sheep Creek water toits headgates and ditches. The court order of October 18, 1976, contains the following directions to the commissioner: "Water Commissioner Fuller was told by the Court tokeep track of 

### water from Sheep Creek coming intoNewlan Creek, and assess Holmstrom Land Company for Sheep Creek Water distributed through Newlan Creek, if he uses any of his 

### time indispensing 

### it. Holmstrom Land Company toget the amount of water from Sheep Creek they put intoNewlan Creek, 

### less about 10percent for seepage, etc." Defendant Hunter was appointed water commissioner on June 7, 1977, to carry out the October order. In 1977 Holmstrom was billed by defendant on the basis of both Newlan Creek and Sheep Creek waters. Holmstrom refused topay, and defendant padlocked Holmstrom's headgate inan attempt tocollect. Holmstrom then brought thisaction. Hunter defended on the grounds he was only following the court's order; thatHolmstrom was not pursuing the proper procedural remedy; and thatHolmstrom was trying tocollaterally attack the October 18, 1976, order even though it had not appealed that order. The DistrictCourt found that Hunter was acting pursuant to

### its order, that the charges 

### were reasonable, and that 

### it was necessary for Hunter toretain counsel. The court then concluded that sections 89-1012 and 89-1013, 

### R.C.M. 1947, now sections 85-5-204 and 85-5-205 MCA, constituted the sole remedy for one who objects to the charges of 

### a water commissioner appointed by court order. The court further concluded this suitconstituted a collateral attack upon 

### its order of October 18, 1976. The court then ordered judgment forHunter and ordered Holmstrom topay thewhole

sum owing toHunter. After an evidentiary hearing the court also ordered, on July 19, 1978, thatHolmstrom pay Hunter $750 inattorney fees. Although Holmstrom 

### lists eight issues on appeal, 

### we determine that the resolution of the two following issues 

### willdispose of this appeal: 1. Whether the attempt to secure the relief 

### set forth inthe complaint of Holmstrom constituted 

### a collateral attack upon the court order dated October 18, 1976? 

### 2. Whether the District Court was correct inordering Holmstrom topay attorney fees toHunter? The prayer toHolmstrom's complaint requests inmajor part that "the accounting of the Commissioner be recalculated inaccordance with the uses of thewaters of ~ewlan Creek, exclusive of 

### -any ___- and alluses of waters 

### - of Sheep Creek 

# . . ." (Emphasis added.)That this requested relief 

### is an attempt tonegate the District Court's order of October 18, 1976, specifically directing thewater commissioner tokeep track of water coming intoNewlan Creek from Sheep Creek and to assess Holmstrom for any 

### timeused indispensing Sheep Creek water, 

### is obvious. Such an attempt clearly constitutes a collateral attack on the earlier order. The general rule incivil litigation 

### is

### well expressed inthe following language: "'By "collateral attack" 

### ismeant "every proceeding inwhich the integrity of a judgment 

### is challenged, except those made inthe action wherein the judgment 

### is rendered orby appeal, and except suitsbrought to obtain decrees declaring judgments tobe void - ab initio." 

# . . .' [Citations omitted.

### 1 "Ithas been well-settled inthis state that a court

### willoverturn 

### a judgment on collateral attack only if the judgment 

### isvoid on 

### its face, and it appears affirmatively from the judgment roll that the court did not have jurisdiction or committed an 

### act inexcess of 

### its jurisdiction." Estate of Hofmann (1957), 132 Mont. 387, 395, 318 P.2d 230, 236. It thus becomes the duty of thisCourt todetermine whether the initial order 

### isvoid on 

### its face orbeyond the powers of the District Court. Weconclude it 

### isnot. Section 89-891.1, R.C.M. 1947, now section 85-2-411 MCA, provides: "Water appropriated under an existing right or pursuant tothis 

### act may be turned into the natural channel of another stream, or from a reservoir into the natural channel, and withdrawn ordiverted ata point downstream for beneficial use, but thewaters of that stream may not thereby be diminished inquantity or deteriorated inquality to the detriment of a prior appropriator." Thus, 

### it is incumbent upon theDistrictCourt, as the entity responsible for supervising the distribution of water among allappropriators and for supervising allwater commis-sioners, section 89-896, R.C.M. 1947, now section 85-2-406 MCA, toinsure that appropriators of Newlan Creek water 

### were not adversely affected by Holmstrom's use of Newlan Creek as

a conduit for 

### its Sheep Creek waters. A legitimate and logical way todo this 

### is torequire the water commissioners tomeasure the flow of Sheep Creek water into Newlan Creek indispensing the waters according to the decreed rights of the parties. Water commissioner Hunter, although appointed after the October 1976 order, 

### is nevertheless bound by 

### it. Luppold v. Lewis (1977), 

### -Mont

# . , 563 P.2d 538, 542, 34 St.Rep. 227, 231. Holmstrom, as the holder of the decreed rights, must pay for the proportionate costs of the commissioner's fees and compensation. Section 89-1001(5), R.C.M. 1947, now section 85-5-101(4) MCA. If Holmstrom wanted to challenge the District Court order of October 18, 1976, 

### as it related to assessments of his Sheep Creek water, the proper legal procedure would have been an appeal within the proper time. Rules l(a)and 5, M.R.App.Civ.P. Holmstrom did not appeal. The current collateral attack 

### isnot a permissible means by which to make this challenge. Nor does it appear, in fact, that the order is challengeable. Conversely, if Holmstrom wanted tochallenge the apportionment of fees and expenses 

### by the water commissioner, 

### it should have followed the procedure 

### set forth in sections 89- 1012 and 89-1013, R.C.M. 1947, now sections 85-5-204 and 85- 5-205 MCA. This it also failed to do. Therefore, the DistrictCourt order of October 18, 1976, and the 

### water commissioner's assessment filed inJuly 1977 are final and binding. On this firstissue, the judgment of the ~istrict Court 

### is affirmed.As to the award of attorney fees toHunter, the Dis

### trict Court after receiving evidence in support of an award for $959, awarded fees inthe amount of $750. Although there is no statutory basis for these fees, the District Court found 

### itwas necessary for Hunter toretain counsel in thismatter and concluded that it had the power, as a court of equity, toorder Holmstrom topay Hunter's reasonable attorney fees. We agree. This suitwas brought againstHunter personally for acts undertaken inhis capacity as a duly appointed water commissioner acting pursuant to a lawful court order. 

### Were water commissioners required todefend out of their personal funds against suitsbrought against them for their official acts, no one would be willing to serve aswater commissioner. Where the suit

### iswithout 

### merit, as in this case, it is only proper that the costs should be borne by the water user instituting the action. Courts of equity have the inherent power togrant the relief that justice requires. Tiffany v. Uhde (1950), 123 Mont. 507, 512-13, 216 P.2d 375, 378. In a recent case, thisCourt stated: "The court alsoreserves the power togrant complete relief under 

### its equity power. This 

### is meant toestablishno srecedent, butmust be determined on a case by case basis. "If equity 

### is tobe done in

### a situation such as this, the attorney feemust be sustained. Plaintiff Anderson sought tobring defendant Eggan into the lawsuit when she had asserted no claim against him and had no intention of doing so. For this reason she submitted a motion todismiss which was granted by the trialcourt. Plaintiff Anderson forced her to secure the services of an attorney toexamine the case and submit a motion todismiss and through no faulton her part to incur attorney fees and costs. If defendant Eggan 

### isdismissed from the case and not awarded attorney fees, she

### willnot bemade whole or 

### re-

### turned to the same position as 

### before plaintiff Anderson attempted tobring her into the lawsuit." Foy v. Anderson (1978), Mont. 

## , 580 P.

### 2d 114, 116-17, 35 

### St.Rep. 811, 814. The situation inthe instant case is 

### analogous. Holmstrom sued Hunter, but its real quarrel was with the order of the District

### Court. At

### no 

### timehas Holmstrom asserted thatHunter seriously deviated from the orders of the court. Just asAnderson had no reason orjustification for dragging Eggan into the lawsuit inthe above cited case, Holmstrom had no reason to sue Hunter. Justice, equity and good conscience dictate thatHolmstrom should bear the costs of the defense of the action. The award and amount of attorney fees is 

### affirmed. No proper application for attorney feesbeing filedon appeal, they are hereby denied. The judgment of the District 

### Court 

### is affirmed.

We 

### concur:Mr. Chief Justice Haswell concurring inpart and dissenting inpart: I concur inaffirming the judgment of the District Court on the firstissue. I dissent from the award of attorney fees for the

reasons stated inmy dissent inFoy v. Anderson (1978), Mont. 

## , 580 P.2d 114, 117, 35 St.Rep. 811, 815. An award of attorney fees under the guise of making the prevailing party whole 

### is applicable to any case; permits such an award inthe absence of statuteor contract; and constitutes a clear example of judicial legislation. Where neither the legislature nor the parties have provided for such an award, I would abstain from granting 

### it. 

# 4;&~k- Chief ~ustyce