No. 84-453 

IN THE SUPREBE COURT OF THE STATE OF MONTAXA 

1985 

STATE ex rel., JOHN FOSS, 

Relator, 

DISTRICT COURT OF THE FOURTH 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AI'JD FOR THE COUNTY 

OF RAVALLI, AND THE WARD IRRIGATION 

DISTRICT, 

Respondents. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

Loble & Pauly, Helena, Montana 

For Respondents: 

Recht & Greef; Charles H. 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 review by a 

writ of certiorari an order of the District Court of the 

Fourth Judicial District, Ravalli County, holding him in 

contempt of 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 the Ward Irrigation District on April 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 inclusion of 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 

from diversion dam [sic] in Ward 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, in 
that 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, or control of the dams, ditches, 

headgates and other matters pertaining to the [District]." 

Further, the June 11, 1979 order directed John 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 concerning water rights, water 

rights on Camas Creek, points of diversions including points of diversion on 

Camas Creek. I don't believe those 

issues are properly before the court at 

this time. I would strongly urge counsel to pursue those remedies. Obviously 

you [counsel for the Fosses] feel that 

Mr. Foss has a 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 

does have such a cause of action, and as 

I said before, I would strongly urge you 

to pursue 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 to the August 31, 1979, 

hearing. At that hearing, only the counsel for the 

Irrigation District appeared, and advised the court that no 

further orders were requested, stating: 

"Counsel for the Fosses, Doug Skelset, 

has asked that we continue the temporary 
order in force without date. I have no 

objection to that, your honor, as long 

as it is understood that at any time I 

can renotice the matter before the court 

to make it permanent. 

"The court: So ordered, thank you." 

Nothing apparently happened for the next 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, all commissioners of the Ward Irrigation District filed affidavits with the 

District Court alleging that Millo Huggins, a relative of the 

Fosses, and acting in her capacity as agent thereof, 

interfered with the operation of the District's headgate 

system. Based on these affidavits, the District Court issued 

another temporary restraining order and order to show cause. 

A hearing on'the temporary restraining order was set for July 

7, 1983. Prior to that, the Fosses filed with the District 

Court a "Request for Determination of Relative Water Rights," 

asking the District Court to determine 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 the temporary restraining order were held 

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 the pleadings on the record, found Millo 

Huggins in contempt of court for violating the August 31, 

1979, injunction. Further, the District Court continued the 

injunction in effect by ordering: 

"3. Millo Huggins, John Foss, the 

owners of the Foss ranch, the relatives, 

servants, agents and employees are 

hereby ordered and enjoined from interfering in any way, either directly or 
indirectly, with the activities of the 

Ward Irrigation District, its commissioners, ditch walkers, agents and 

employees. 

"4. Millo Huggins, John Foss, the 

owners of the Foss 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 this Court to review by certiorari 

the order adjudging her in contempt. 

The Fosses' petition for an adjudication of relative 

water rights went ahead in the District Court. After several 

preliminaries, including a substitution of judge, the matter 

was heard on December 14, 1983, by the Honorable Robert M. 

Holter, District Judge. Judge Holter, after hearing 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. Affidavits of the commissioners of the District and a motion by the 

District for an order holding John Foss in contempt of court 

were filed. This matter was heard by Judge Henson and in his 

findings he recognized the August 4, 1983 order, (quoted 

above) found that John Foss had been aware of said order, and 

found also that he had willfully violated its terms. 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 

in contempt. 

2. That the District Court judge no longer had jurisdiction to try the matter. 

3. That the District Court erred in requiring relator 

Foss to pay attorney's fees. 

On reviewing a contempt citation by writ of certiorari, 

we are limited to the following considerations: whether the 

lower court had jurisdiction to issue the order 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, 

states that: 

"The following acts or omissions in 

respect to a court of justice or 

proceedings therein are contempts of the 

authority of the court: 

" (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 to find him in contempt. 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), 43 Mont. 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 

order was 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 

"the pleadings" 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. Relator had notice of 

his obligation and willfully violated it. The District Court 

both had jurisdiction to issue the contempt order and had 

evidence before it to support the same. 

Secondly, relator argues that Judge Henson was 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, State ex rel. Bacorn v. District Court (1925), 73 

Mont. 297, 236 P. 553; State ex rel. Enochs v. District Court 

(1942), 113 Mont. 227, 123 P.2d 971; 17 Am.Jur.2d, Contempt, 

As stated in the 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 to the District. First, we must note that a 

District Court may properly award a party, in this case the 

movant District, costs of a litigation under the authority of 

25-10-103, MCA. Prior cases have limited the amount of these 

costs to what can be taken out of the fine levied against the 

contemnor. See State ex rel. Nett v. District Court (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. 

District Court (1900), 24 Mont. 33, 60 P. 493. 

The more difficult inquiry is whether a District Court 

may award the "prevailing party" in a contempt action attorney's fees. We first must note the unique nature of a 
contempt action. It is the state's interest, and not an.y 

private party's, that is vindicated 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 available to the plaintiff for the redress 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 to be attained is the 

vindication of the dignity of the authority of the court, and not indemnity 

for the plaintiff or any judgment in his 

favor. (Citations omitted.) 

"Again, it is urged that because in 

practice contempt proceedings are always 

instituted at the expense of the owner 

of the water, he is the one primarily 

interested, and should be reimbursed for 

his expenditures in connection therewith. It is undoubtedly true that many 

owners do find themselves in an unfortunate situation when their water rights 

are violated; but this is a subject for 

the legislature to deal with." 38 Mont. 

at 210, 99 P. at 438. 

The general rule in Montana 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, Cate v. Hargrave (Mont. 1984), 680 P.2d 952, 41 St.Rep. 

697; Bovee v. Helland (1916), 52 Mont. 151, 155, 156 P.2d 

416, 417. Relator cites to us no statutory authority upon 

which we may uphold the District Court's award of attorney's 

fees. Further, we do not find that this case fits within 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: / 

' Chief 

47~~. 

Justice 1