No. 14549 

IN THE SUPRE2-B COURT OF THE STA!I'E OF IvDNI'ANA 

1979 

Plaintiff and Appllant , 

Defendant and Respondent. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Leaphart Law Firm, Helena, Mxtana 

For Respondent: 

-re, Rice, O'Connell & Refling, Bozeman, mntana 

Su3snitted on briefs: March 29, 1979 

Decided: 5 1979 

Filed: 'MFS" - g ,.)?.j 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff Holmstrom Land Company (Holmstrom) appeals 

from a judgment of the District Court, 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 in the Newlan Creek 

Water District. On October 18, 1976, the District Court, 

Fourteenth Judicial District, in a proceeding concerning 

distribution of the waters of Newlan Creek, issued an order 

giving instructions to the water commissioners who had been 

appointed to administer the waters of Newlan Creek. The 

hearing resulting in the order was held on complaint of 

Robert J. Weitz, president of Holmstrom. Holmstrom has 

decreed water rights in both Sheep Creek and Newlan Creek 

located in Meagher County. It uses Newlan Creek as a conduit for the transfer of approximately 1000 inches of Sheep 

Creek water to its 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 to keep track of water from Sheep Creek 

coming into Newlan Creek, and assess Holmstrom 

Land Company for Sheep Creek Water distributed 

through Newlan Creek, if he uses any of his 

time in dispensing it. Holmstrom Land Company 

to get the amount of water from Sheep Creek 

they put into Newlan Creek, less about 10 percent 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 to pay, and defendant padlocked Holmstrom's headgate 

in an attempt to collect. Holmstrom then brought this 
action. Hunter defended on the grounds he was only following the court's order; that Holmstrom was not pursuing 

the proper procedural remedy; and that Holmstrom was trying 

to collaterally attack the October 18, 1976, order even 

though it had not appealed that order. 

The District Court found that Hunter was acting pursuant to its order, that the charges were reasonable, and 

that it was necessary for Hunter to retain 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 suit constituted a collateral attack 

upon its order of October 18, 1976. The court then ordered 

judgment for Hunter and ordered Holmstrom to pay the whole 

sum owing to Hunter. After an evidentiary hearing the court 

also ordered, on July 19, 1978, that Holmstrom pay Hunter 

$750 in attorney fees. 

Although Holmstrom lists eight issues on appeal, we 

determine that the resolution of the two following issues 

will dispose of this appeal: 

1. Whether the attempt to secure the relief set forth 

in the complaint of Holmstrom constituted a collateral 

attack upon the court order dated October 18, 1976? 

2. Whether the District Court was correct in ordering 

Holmstrom to pay attorney fees to Hunter? 

The prayer to Holmstrom's complaint requests in major 

part that "the accounting of the Commissioner be recalculated in accordance with the uses of the waters of ~ewlan 

Creek, exclusive of - any ___- and all uses of waters - of Sheep 

Creek . . ." (Emphasis added.) 
That this requested relief is an attempt to negate the 

District Court's order of October 18, 1976, specifically 

directing the water commissioner to keep track of water 

coming into Newlan Creek from Sheep Creek and to assess 

Holmstrom for any time used in dispensing Sheep Creek water, 

is obvious. Such an attempt clearly constitutes a collateral 

attack on the earlier order. 

The general rule in civil litigation is well expressed 

in the following language: 

"'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 except suits brought to obtain decrees declaring judgments to be void - ab initio." . . .' 

[Citations omitted. 1 

"It has been well-settled in this state that a 

court will overturn a judgment on collateral attack only if the judgment is void on its face, 

and it appears affirmatively from the judgment 

roll that the court did not have jurisdiction or 

committed an act in excess of its jurisdiction." 

Estate of Hofmann (1957), 132 Mont. 387, 395, 

318 P.2d 230, 236. 

It thus becomes the duty of this Court to determine 

whether the initial order is void on its face or beyond the 

powers of the District Court. We conclude it is not. 

Section 89-891.1, R.C.M. 1947, now section 85-2-411 

MCA, provides : 

"Water appropriated under an existing right or 

pursuant to this act may be turned into the 

natural channel of another stream, or from a 

reservoir into the natural channel, and withdrawn or diverted at a point downstream for 

beneficial use, but the waters of that stream 

may not thereby be diminished in quantity or 

deteriorated in quality to the detriment of a 

prior appropriator." 

Thus, it is incumbent upon the District Court, as the entity 

responsible for supervising the distribution of water among 

all appropriators and for supervising all water commis- 
sioners, section 89-896, R.C.M. 1947, now section 85-2-406 

MCA, to insure 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 to do this is to require the water commissioners 

to measure the flow of Sheep Creek water into Newlan Creek 

in dispensing 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 is not a permissible means by which to 

make this challenge. Nor does it appear, in fact, that the 

order is challengeable. 

Conversely, if Holmstrom wanted to challenge 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 

District Court order of October 18, 1976, and the water 

commissioner's assessment filed in July 1977 are final and 

binding. On this first issue, the judgment of the ~istrict 

Court is affirmed. 
As to the award of attorney fees to Hunter, the District Court after receiving evidence in support of an award 

for $959, awarded fees in the amount of $750. Although 

there is no statutory basis for these fees, the District 

Court found it was necessary for Hunter to retain counsel in 

this matter and concluded that it had the power, as a court 

of equity, to order Holmstrom to pay Hunter's reasonable 

attorney fees. We agree. 

This suit was brought against Hunter personally for 

acts undertaken in his capacity as a duly appointed water 

commissioner acting pursuant to a lawful court order. Were 

water commissioners required to defend out of their personal 

funds against suits brought against them for their official 

acts, no one would be willing to serve as water commissioner. 

Where the suit is without 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 to grant the 

relief that justice requires. Tiffany v. Uhde (1950), 123 

Mont. 507, 512-13, 216 P.2d 375, 378. In a recent case, 

this Court stated: 

"The court also reserves the power to grant complete relief under its equity power. This is 

meant to establish no srecedent, but must be 

determined on a case by case basis. 

"If equity is to be done in a situation such as 

this, the attorney fee must be sustained. Plaintiff Anderson sought to bring 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 to dismiss 

which was granted by the trial court. Plaintiff 

Anderson forced her to secure the services of an 

attorney to examine the case and submit a motion 

to dismiss and through no fault on her part to 

incur attorney fees and costs. If defendant 

Eggan is dismissed from the case and not awarded 

attorney fees, she will not be made whole or re- 
turned to the same position as before plaintiff 

Anderson attempted to bring her into the lawsuit." 

Foy v. Anderson (1978), Mont. , 580 P. 2d 

114, 116-17, 35 St.Rep. 811, 814. 

The situation in the instant case is analogous. Holmstrom sued Hunter, but its real quarrel was with the order 

of the District Court. At no time has Holmstrom asserted 

that Hunter seriously deviated from the orders of the court. 

Just as Anderson had no reason or justification for dragging 

Eggan into the lawsuit in the above cited case, Holmstrom 

had no reason to sue Hunter. Justice, equity and good 

conscience dictate that Holmstrom should bear the costs of 

the defense of the action. The award and amount of attorney 

fees is affirmed. 

No proper application for attorney fees being filed on 

appeal, they are hereby denied. 

The judgment of the District Court is affirmed. 

We concur: 
Mr. Chief Justice Haswell concurring in part and dissenting 

in part: 

I concur in affirming the judgment of the District 

Court on the first issue. 

I dissent from the award of attorney fees for the 

reasons stated in my dissent in Foy 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 in the absence of statute or 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