No. 84-453 INTHE SUPREBE COURT OF THE STATE OF MONTAXA 1985

STATE 

### exrel., JOHN FOSS, Relator,

DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAI'JD FOR THE COUNTY OF RAVALLI, AND THE WARD IRRIGATION DISTRICT, Respondents.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Relator:

Loble & Pauly, Helena, Montana

ForRespondents: Recht & Greef; CharlesH. Recht, Hamilton, Montana

Submitted: 

### January 21, 1985 Decided: 

### June 13, 1985

-- 

### -- Clerk

### Mr. Justice L.C. Gulbrandson delivered the Opinion of the Court.Relator, John Foss,petitions this Court to reviewby a writ of certiorari an order of the District Court of the Fourth Judicial District, Ravalli County, holding him in contemptof court. This proceeding is a continuation of Ravalli County, Cause No. 6999, "In the Matter of the Establishment and Organization of the Ward Irrigation District." The District Court's continuing jurisdiction over the District, and this action, began with the petition filed by certain parties to form theWard IrrigationDistrict onApril 

### 6,1938. Generally,the only actions involving the District that the District Court has been called to rule upon has been audits, administrative matters,petitions for the inclusionof lands, and other matters pertaining to the operation of the District. The controversy that eventually led to this Cause No. 84-453, and its companion case, Cause No. 84-298,was first brought before the District Court in 1979. On April 30, 1979, Ralph Springer, Ronald M. Porter and George W. Else, all commissioners of the Ward Irrigation District filed affidavits with the District Court alleging that John Foss, relator in this action, "without permission removed padlocks fromdiversion dam [sic] inWard Irrigation Ditch and refused to replace or return locks to Ward Irrigation commissioner(s)

# ." 

### Based upon those affidavits, the District Court issued a temporary restraining order and, on June 

### 4, 1979, held a hearing on the order to show cause why the temporary restraining order should not be made permanent. Both the Irrigation District and John Foss were represented at that hearing, and both presented evidence pertaining to the control of the headgate in issue. The District Court, inthat action, found that John Foss was not in contempt of court. The court's order included a temporary injunction against John Foss from interfering "in any way with the administration, regulation, orcontrol of thedams, ditches, headgates and other matters pertaining to the [District]." Further, theJune 11, 1979 orderdirectedJohn Foss and other members of the Foss ranch to appear on August 31, 1979, to show cause why the temporary injunction should not be made permanent. The transcript indicates that at the 

### time the 

### District Court issued the temporary injunction, 

### it strongly urged the Foss Ranch to seek another remedy, such as an adjudication of the relative rights and priorities in the waters of the affected ditches, instead of seeking the same adjudication in the injunctive action. The court stated: "Well, there has been considerable testimony concerningwater rights, water rights on Camas Creek, points of diversions including points of diversion on Camas Creek. I don't believe those issues areproperly before the court at this

### time. I would stronglyurge counsel topursue those remedies. Obviously you [counsel for the Fosses] feel that Mr. Foss hasa cause of action, but once again I don't feel they are properly before the court at this 

### time. There are judicial remedies available if he doeshave sucha causeof action, and as I saidbefore, I would stronglyurgeyou topursue those. 

# ..

# . "I 

### will set the order for 60 days to give you an opportunity to file an action,

# . ..what I would do 

### is set it for another show cause hearing 

### to show why 

### it shouldn't be made permanent if you have not in fact sought another remedy.

### " Counsel for the Fosses did not petition for an adjudication of water rights prior tothe August 31, 1979, hearing. At that hearing, only the counsel for the Irrigation 

### District appeared, and advised the court that no furtherorders

### were requested, stating: "Counsel for the Fosses, Doug Skelset, has asked that

### we continuethetemporaryorder in force without date. I have no objection to that, your honor, as long as 

### it is understood that atany time I can renoticethematter before the court tomake 

### itpermanent. "The court: So ordered, thank you." Nothing apparentlyhappened forthenext several years. Neither the District appeared before the court to make the temporary injunction permanent, nor did the Fosses petition for a determination of water rights. Then, on June 8, 1983, Dean Frost, Ronald Porter and Ralph Springer, allcommission

### ers of theWard IrrigationDistrict filedaffidavitswith the District Court allegingthatMillo Huggins, a relativeof the Fosses, and acting in her capacity as agent thereof, interfered with the operation of the 

### District's headgate system. Based on these affidavits, theDistrictCourt issued another temporary restraining order and order toshow cause. A hearingon'the temporary restraining orderwas 

### set forJuly 7, 1983. Prior tothat, the Fosses filed with the District Court a "Request forDetermination of RelativeWater Rights," asking the 

### District Court todetermine the nature and extent of the water rights of the various parties involved in this litigation, and to determine the relative priorities of the waters in Hayes Creek, the Ward Irrigation Ditch and Camas Creek. Hearings on thetemporary restrainingorder

### wereheld

on July 7 and July 

### 26, 1983. Both parties were represented by counsel. The District Court, stating that 

### it had heard the testimony of the various witnesses, argument of counsel, and having reviewed thepleadings on therecord, found Millo Huggins in contempt of court for violating the August 31, 1979, injunction. Further, theDistrict Court continued the injunction in effectby ordering: "3. Millo Huggins, John Foss, the owners of theFoss ranch, the relatives, servants, agents and employees are hereby ordered and enjoined from interfering in any way, either directly orindirectly, with the activities of the Ward Irrigation District, 

### its commissioners, ditch walkers, agents and employees. "4. Millo Huggins, John Foss, the owners of theFoss ranch, the relatives, servants, agents and employees, are hereby ordered and enjoined from interfering in any way, either directly or indirectly with the administration, regulation, or control of the dams, ditches, headgates and other matters pertaining to the Ward Irrigation 

### District." Millo Huggins did not ask thisCourt toreview by certiorari theorder adjudgingher incontempt. The Fosses' petition for an adjudication of relative water rightswent ahead intheDistrictCourt. After several preliminaries, including a substitution of judge, thematter

was heard on December 14, 1983, by the Honorable Robert M. Holter, DistrictJudge. Judge Holter, afterhearing evidence and reviewing the record issued findings and conclusions on April 17, 1984. That order 

### is the subject of the appeal in Cause No. 84-298. The next summer, in 1984, this matter arose. Affidavitsof the commissioners of theDistrict and a motion by the District for an order holding John Foss incontempt of court

were filed. Thismatterwas heard by Judge Henson and inhis findings he recognized the August 4, 1983 order, (quoted above) found thatJohn Foss had been aware of said order, and found alsothathe had willfullyviolated 

### itsterms. He then found John Foss in contempt of court, fined him 

### $500 and sentenced him to serve five days in the Ravalli County jail suspended on certain conditions. The District Court further granted the Ward Irrigation District attorneys fees and costs. John Foss appea1.s from this order, presenting the following issues for

### review: 1. That no valid injunction order was 

### ever issued and

nor 

### is injunction a remedy available in this proceeding;therefore, the District Court was powerless to find relator incontempt. 2. That the DistrictCourt judge no longer had jurisdiction totrythematter. 

### 3. That the 

### District Court erred inrequiring relator Foss topay attorney's fees. On reviewing a contempt citationby 

### writof certiorari,



### we are limited tothe following considerations: whether the lower courthad jurisdiction toissuetheorder and secondly, whether there 

### is evidence supporting the same. In Re the Marriage of Smith (Mont. 1984), 686 P.2d 912, 

### 41 St.Rep. 2325; Milanovich v. Milanovich (Mont. 1982), 655 P.2d 963, 39 St.Rep. 963; Schneider v. Ostwald (Mont. 1980), 617 P.2d 1293, 37 St.Rep. 1728; In the Matter of the Contempt of Graveley and Hammerbacker (1980), 188 Mont. 546, 614 P.2d

Relator argues that the 

### District Court was without jurisdiction to find him in contempt. Section 3-1-501, MCA, statesthat: "The following acts or omissions in respect to a court of justice or proceedings therein are contempts of the authority of thecourt:



### "(e) disobedience of any lawful judgment, order, or process of the court; 

# .

# .." Here, relator argues that the order he was found to have violated was not "lawful" and therefore the District Court had no jurisdiction tofind him incontempt. He argues that

no valid injunction order was ever issued, nor 

### is an injunction remedy available in this type of proceeding. Citing the general rule that an injunction 

### is an action ancillary to another action and 

### is an extraordinary remedy available only when there 

### is an underlying proceeding

### pending, section 27-19-101,MCA,and State 

### ex rel. Working v. Mayor (1911),43Mont. 61, 114 P. 

### 777,he points out that the only documents the District Court had before it prior to issuing the August 31, 1979, temporary injunction were the three affidavits filed by the Ward District commissioners. These affidavits do not contain the elements requisite to a pleading, and thus no action was pending at the time that orderwas issued. Relator's argument is without merit. He neglects to observe that he was found in contempt of court for violating the August 4, 1983, order. At the time of that order, at relators own instance, an action was pending. Although the existence of an underlying action was not specifically pled in the District's motion or the affidavits, the District Court in the 1983 order finding Millo Huggans in contempt, and making permanent the injunction stated that it had read "thepleadings" herein and was "advised thereof.

### " Further, the affidavits filed in support of the District's motion contain the necessary elements to find relator in contempt. Relator cites section 27-19-102,MCA and argues that an injunction is improper in this action because there was no "obligation existing in favor of the applicant." This argument is also not persuasive. The August 4, 1983, order clearly obligated relator to refrain from tampering with any of the District's distribution system. Relatorhad notice of his obligation and willfully violated it. The DistrictCourt both had jurisdiction to issue the contempt order and had evidence before it to support the same. Secondly,relator argues that Judge Hensonwas without jurisdiction to find him in contempt because he had ceded jurisdiction of the underlying adjudication action to Judge Holter. This argument is also without merit. In Kuzara v.Kuzara (Mont. 1984), 682 P.2d 1371, 41 St.Rep. 1201, 

### we stated: "This Court has held that a contempt proceeding 

### is entirely independent of the civil action out of which 

### it arose. Myhre v. Myhre (1976)

### , 168 Mont. 521, 548 P.2d 1395. The District Court therefore has the authority to enforce 

### its judgment even though an appeal 

### is pending thereon. Contempts are punishable because of the necessity of maintaining the dignity of and respect towards the courts and their decrees." See also, Stateex

### rel. Bacorn 

### v. District Court (1925), 73 Mont. 297, 236 P. 553; Stateex

### rel. Enochs v. DistrictCourt (1942), 113Mont. 227, 123 P.2d 971; 17Am.Jur.2d, Contempt,

As stated inthe above cases, the power of contempt 

### is to enforce the decorum of the court, not the dignity of any particular judge thereof. Thus, 

### it does not matter that Judge Henson had ceded jurisdiction over the adjudication to Judge Holter, because all. that he was doing in this action

was enforcing a lawful order of the court. Finally, relator argues that the District Court exceeded 

### its jurisdiction when 

### it authorized an award of attorney's fees totheDistrict. First, 

### we must note that a DistrictCourt may properly award a party, in this case the movant District, costsof a litigation under theauthorityof 25-10-103, MCA. Prior cases have limited the amount of these coststowhat can be taken outof the fine levied against the contemnor. See Stateex rel. Nett v. DistrictCourt (1925), 72 Mont. 206, 232 P. 204; State ex rel. Edwards v. District Court (1910), 41 Mont. 369, 109 P. 434; Dunlavey v. Doggett (1909), 38 Mont. 204, 99 P. 436; State ex rel. Flynn v. DistrictCourt (1900), 24 Mont. 33, 60 P. 493. The more difficult inquiry 

### iswhether a 

### District Court may award the "prevailing party" ina contempt action attorney's fees. We first must note the unique nature of acontempt action. It 

### is the state's interest, and not an.y privateparty's, that

### isvindicated by the invocation of this power. As

### we stated in Dunlavey

### v. Doggett, supra.. "What 

### we do hold 

### is that contempt proceedings do not furnish a remedy availabletotheplaintiff for theredress or prevention of a private wrong. While such proceedings may have the result nf deterring the defendants from again interfering with plaintiff

## 's rights, still the object tobe attained 

### is the vindication of the dignity of the authority of the court, and not indemnity fortheplaintiff orany judgment inhis favor. (Citationsomitted.) "Again, 

### it 

### is urged that because in practice contempt proceedings arealways instituted atthe expense of the owner of the water, he 

### is the one primarily interested, and shouldbe reimbursed for his expenditures in connection therewith. It 

### isundoubtedly true thatmany owners do find themselves inan unfortunate situation when their water rights are violated; but this 

### is a subject for the legislaturetodeal with." 38 Mont. at210, 99 P. at438. The general rule inMontana 

### is that a prevailing party in an action 

### is not entitled to attorney's fees unless a statutory or contractual provision expressly provides for such, Catev. Hargrave (Mont. 1984), 680 P.2d 952, 41St.Rep. 697; Bovee v. Helland (1916), 52 Mont. 151, 155, 156 P.2d 416, 417. Relator cites tous no statutory authority upon which we may uphold theDistrictCourt's award of attorney's fees. Further, 

### we do not findthatthiscase fitswithin the exceptions recognized in Foy v. Anderson (1978), 175 Mont. 507, 511, 580 P.2d 114, 116 (upholding the court's general equity power to afford complete relief); Cate, supra (awarding attorney's fees to penalize reprehensible self-help); or In 

### re Marriage of Redfern (Mont. 1984), 692 P.2d 468, 41 St.Rep. 2391 (attorney's fees awarded in contempt action to enforce 

### terms of divorce decree). See also; Williams, 

# ".

. . and Attorneys Fees to the Prevailing

### Party: Recovering Attorneys Fees Under Montana Statutory 

### Law," 46 Mont.L.Rev. 

### 119, 121 (1985). The order of the District Court finding relator in contempt is hereby affirmed, and that portion of 

### the order awarding attorney's fees to the Ward Irrigation District is hereby reversed.

We concur: 

# / 

# 47~~. '

### ChiefJustice 

# 1