No. 83-106 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE: PETITION FOR ORGANIZATION AND 

ESTABLISHMENT OF AN IRRIGATION DISTRICT 

IN RAVALLI COUNTY, TO BE KNOWN AS DALY 

DITCHES IRRIGATION DISTRICT. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Loble & Pauly, Lester Loble I1 and Thomas Hopgood 

argued for Dept. of Natural Resources, Helena, 

Montana 

For Respondents: 

Larry Persson argued for Daly Ditches and other 

petitioners, Hamilton, Montana 

Recht & Greef; Charles H. Recht and Judy Loring 

argued for Skalkaho Creek Exchange Water Users, 

Hamilton, Montana 

Paul B. Smith, Boulder, Plontana 

Stanton Cooper, pro se, Hamilton, Montana 

Charles Likes, pro se, Hamilton, Montana 

Filed: 

Submitted: December 8, 1983 

Decided: April 17, 1984 

APR i / 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On December 17, 1982, the District Court, Fourth 

Judicial District, Ravalli County, entered its order and 

decree establishing an irrigation district in Ravalli County 

to be known as Daly Ditches Irrigation District. 

The appeals here are not concerned with the legality of 

the organization of the district, but rather how the cost of 

maintenance of the district shall be allocated or distributed 

among members and water users. 

I. 

Facts and History 

By transfer from the Montana Department of Natural 

Resources and Conservation, the district has become the owner 

of certain irrigation ditches, waste ditches, distribution 

1a.terals and three small reservoirs, all formerly known as 

the Daly ditches water project. 

Two of the district's ditches, the Republican Ditch and 

the Hedge Ditch divert water from the Bitteroot River. These 

ditches, 12.75 miles and 23.25 miles in length respectively 

cross in their lonq courses Skalkaho Creek. The district has 

water users who own early water rights (that is to say early 

in time of appropriation) to the use of waters from Skalkaho 

Creek. The district includes members whose lands are above 

and easterly from the Republican and Hedge Ditches, and water 

from these ditches cannot reach such members' lands. 

By diverting waters from Skallcaho Creek, irrigation 

waters can be and have been brought to those higher lands. 

Long ago an exchange system was worked out whereby the owners 

of lands below the Hedge and Republican Ditches, who owned 
early rights to the use of waters from Skalkaho Creek, 

permitted the predecessors of the district to divert waters 

from Skalkaho Creek for distribution to the high lands. 

Under the exchange, the early Skalkaho water use owners 

received an equivalent amount of water from the Republican 

and Hedge Ditches, out of the Bitterroot River, delivered 

without charge. 

The Republican Ditch was originally constructed by the 

Republican Ditch Company prior to the year 1885. In 1901, 

the canal right-of-way and water right were conveyed to the 

Ravalli Land and Irrigation Company. 

The Hedge Ditch was constructed for the most part by the 

fabled Montana copper king, Marcus Daly. All of the 

rights-of-way and water rights to the Hedge Ditch were 

conveyed by Margaret P. Daly for herself and as executor of 

the will of Marcus Daly to the Ravalli Land a.nd Irrigation 

Company on December 20, 1901. 

Under a decree entered on July 29, 1916, in the Ravalli 

County District Court, in cause no. 2149, entitled Ravalli 

Land and Irrigation Company v. R. W. Nicol, et al., the 

District Court decreed the rights of water users from 

Skalkaho Creek through Ravalli Land and Irrigation Company. 

The right of Ravalli Land and Irrigation Company to sell 

water which it had appropriated came before this Court in 

Brennan v. Jones (1936), 101 Mont. 550, 55 P.2d 697. This 

Court made note of the exchange arrangement, stating: 

"It appears from the record that prior to the 

commencement of the original water rights suit, the 

corporati-on entered into an arrangement verbally 

whereby certain of the wa.ter users whose rights 

were based on appropriations out of Skalkaho Creek, 

and whose lands lay below the 'Republican1 and 

'Hedge' ditches, obtained from these two ditches an 

amount of water equal to their rights out of the 

Skalkaho, and in exchange the corporation diverted 
from the waters of the Skalkaho an amount of water 

equal to that delivered to the water users bel-ow 

the two company river ditches.. . . " 101Mont. at 

559, 55 P.2d at 698. 

In Brennan, it was noted by this Court that the water 

commissioner in distributing the waters of Skalkaho Creek, 

distributed first to the irrigation company the amount of its 

prior rights, in accordance with the priorities of the 1916 

decree, and also the amount of water adjudicated to various 

water users to whom the company was delivering an equal 

amount of river water from the Republican and Hedge Ditches. 

The court further noted that the manner of taking waters both 

by exchange and under the rights which the irrigation company 

owned was handled the same way both before and after the 

commencement and termination of the water right suit in 1916. 

101 Mont. at 560-561, 55 P.2d at 699. 

On October 1, 1942, the Ravalli Land and Irrigation 

Company deeded all of its right, title and interest in the 

several irrigation ditches owned by it, waste ditches, 

distribution laterals, and reservoirs to the State Water 

Conservation Boa-rd. The instrument of transfer recites the 

following obligation on the part of the water board in 

connection with the transfer: 

"Said second party further agrees that it will, 

without charge, supply water to those owners of 

land having decreed water rights from Skalkaho 

Creek, and whose lands lie west of and below the 

Republican and Hedge river Ditches, and whose wa.ter 

rights have been taken from Skalkaho Creek above 

such ditches for use on higher lands with an 

equivalent amount of water from said river 

ditches. " 

The Montana Department of Natural Resources and 

Conservation (DNRC) is the successor to the State Water 

Conservation Board. During the time that the state has owned 

the Daly ditch project, it has sustained financial losses. 
In 1979, the state legislature found that extensive cost of 

repairs for the Daly ditch water project were now necessary; 

it had operated at a loss since the state owned the project; 

it would require increased subsidization from the general 

fund for future operation; and the useful life of the water 

project for the state of Montana had ended. The legislature 

therefore directed the DNRC to dispose of the project by 

transferring or selling it, or else the project should be 

abandoned. Ch. 534, Laws of Montana (1979). 

Daly Ditches Irrigation District is being formed for the 

purpose of taking over from the DNRC the operation and 

maintenance of the Daly ditch project. 

The District Court found that the DNRC has attempted 

unilaterally to revoke its consent to the exchange agreements 

by a letter of cancellation sent to individuals claiming 

exchange user status, and unilaterally to cancel all exchange 

agreements, and has refused to deliver water from the 

Republican Ditch or any other ditch in exchange for Skalkaho 

Creek water. (Findings No. 90, 93, 94.) 

Some of the Skalkaho Creek exchange vrater users have 

petitioned to be members of the new Daly Ditches Irrigation 

District; more have not. In its order and decree of December 

17, 1982, establishing the district, the District Court made 

findings relating to the exchange of the use of such waters. 

It found that the exchange water users (not all are below the 

Republican and Hedge Ditches, as will be seen later) had 

relied upon representations of the DNRC and its predecessors 

that in exchange for the use of their water rights they were 

to receive substitute water, miner's inch for miner's inch 

without cost, and that in reliance thereon they had allowed 

their diversion and irrigation distribution systems and 
laterals to be impacted, crossed and intersected by the Daly 

Ditches; their respective systems had been allowed to 

deteriorate in their belief that the DNRC and its 

predecessors considered themselves bound to supply the 

substitute water from the Bitteroot River. It found that 

Skalka.ho Creek exchange water users had been damaged and 

suffered detriment, at least those having tenth or superior 

rights to use of Skalkaho Creek water. It found thzt the 

actual cost for operation and maintenance of each ditch, 

lateral, canal diversion, or improvement of the Daly ditch 

water project could be determined by existing bookkeeping 

practice. It then made the following finding: 

"It is fair and equitable that the Skalkaho Creek 

Exchange water user individuals having tenth or 

superior water rights will receive water from the 

Daly Ditch Water Project on the exchange basis and 

receive a credit against the cost allocable to them 

for the operation, maintenance, replacement or 

reconstruction of Republican or Hedge diversions as 

well as on account of the purchase of water from 

Painted Rock Water Project. This credit should 

exist for a fixed number of years. " (Finding No. 

112.) 

The court made conclusions of law based on the findings, 

and incorporated the same in its decree. The effect with 

respect to cost is tha.t certain exchange water users who are 

members of the district will receive a credit, to be 

determined later by the court after a hearing, on any 

a.ssessment levied against lands of the water users by the 

district, if the water user had a tenth or superior decreed 

right out of Skalkaho Creek. 

It will be seen that the effect of the conclusions and 

the order of the District Court is not explicitly that the 

exchange water users who are members of the district shall 

receive the use of water in exchange for the use of their 
earlier decreed water rights on a cost-free delivery basis. 

Instead the court will order a "credit" for a fixed term 

against district assessments possibly varying from individual 

to individual, the credit and the duration thereof to be 

determined at a later hearing. (Conclusion No. 16.) 

A further legal effect of the order entered by the 

District Court is that it did not deprive the exchange water 

users of other remedies if they should decide not to become 

members of the Daly Ditches Irrigation District. The court 

further provided that any individual who owned a decreed 

right out of Ska.lkaho Creek and who is currently exchanging 

Skalkaho Creek water for Bitteroot River water under an 

exchange agreement, and who does not opt to become a member 

of the district may avail himself of such further remedies as 

are provided by any valid agreement or as provided at law or 

in equity. 

In other words, under the decree, exchange water users 

have a choice. They can come into the irrigation district as 

members and their rights to credits on their assessments 

shall be determined by their priorities in the Skalkaho Creek 

decree of water rights. Or they can remain out of the 

district, and to preserve their rights, pursue such other 

remedy as is provided at law or in equity. 

The court certified under Rule 54 (b) of the Montana 

Rules of Civil Procedure that the decree was a final judgment 

for the purposes of appeal. We will now proceed to treat the 

issues raised by the various parties on this appeal. 

11. 

Issues raised by the appeal of the DNRC 

1. Whether the exchange users, and the issues presented by 
the exchange users, are properly before the District Court. 

The DNRC contends that only one exchange water user, 

Bernie E. Swift appeared at the hearing on the petition for 

the organization of the district to contest the same. 

Therefore, The DNRC contends that the District Court at such 

hearing could not determine the issues raised with respect to 

the exchange water users. 

Technically, the DNRC is correct. Section 85-7-106, 

MCA, provides that at the hearing "all interested persons" 

whose lands or rights may be damaged "may appear and contest" 

the orga.nization of the district. 

Inherently, however, the District Court, in ordering the 

district to be established, must determine what lands are to 

be included within the district. Section 85-7-107, MCA, 

relating to the court decision after the hearing, provides in 

subsection (1) (b) : 

"Lands which will not, in the judgment of the 

court, be benefited by irrigation from the works of 

the proposed districts;. . . which have 9urtenant 

water rights;. . . may not be included in the 

district unless the owner of such lands consents in 

writing to the inclusion." (Emphasis added.) 

The District Court was careful not to offend that 

statutory provision. The court left open to the individual 

decision of the water users who owned appurtenant decreed 

rights to the use of waters from Skalkaho Creek the decision 

to become members of the district. Because of the District 

Court's duty to determine what lands should be included in 

the district, and which should be excluded, inherently it had 

to treat the issues raised by the exchange water users, 

whether the users appeared formally or not. 

2. Whether the DNRC or any other party has an obligation to 
deliver water to the exchanae users. 

The statement of the issue negates itself. If the 

rights to use water are not exchanged, there is no exchange. 

The District Court found that the Hi-Line Ditch is a 

part of the Daly ditch water project and of the proposed 

irrigation district. Its diversion in Skalkaho Creek is 

located upstream from all other components or works of the 

district. The Court found that for the past 81 years the 

DNRC and its predecessors have supplied water on an exchange 

basis to the exchange users without reduction of amount based 

upon stream flaw in the Skalkaho Creek; the only source of 

water for the Hi-Line Ditch is Skalkaho Creek; the portion of 

the water diverted by the project from Skalkaho Creek into 

the Hi-Line Ditch is represented by the exchange water that 

is delivered downstream to the exchange users through the 

Daly ditch system from the Bitteroot River; without the 

exchange water, there is insufficient water available to 

continue irrigating the acreage being irrigated out of the 

Hi-Line Ditch; the DNRC and its predecessors have for many 

years been exchanging Skalkaho Creek decreed waters for 

Bitteroot River waters up to and at least the seventeenth 

decreed right; a diversion and distribution system existed 

prior to the construction of the Daly ditch water project for 

the diversion and distribution of Skalkaho Creek water to its 

water users; the reconstruction and replacement of that 

diversion and distribution system for delivery of Skalkaho 

Creek water to present d.ecreed water rights users is 

financially not feasible; the diversion and distribution 

system for diverting and distributing Skalkaho Creek water to 

its decreed users has degenerated, falling to disrepair and 

non-use because the exchange users have relied upon the DNRC 
and its predecessors to supply exchange water to them through 

its ditch and canal system free of charge, in consideration 

for the Skalkaho Creek water diverted by the DNRC for its own 

use and benefit on lands other than those owned by the 

Skalkaho water exchange users. 

There does appear then to be an obligation, the exact 

nature of which we do not here attempt to determine, on the 

part of the newly-organized Daly Ditches Irrigation District, 

if it intends to use the points of diversion and rights of 

appropriation appurtenant to the lands of Skalkaho Creek 

exchange users for the use and benefit of other land owners, 

to provide substitute water in exchange to the exchange water 

users. Some of the exchange water users have petitioned to 

become members of the new district; some have also contracted 

with the DNRC for an exchange of their appurtenant right; 

some have refused to contract and rely instead on their 

appurtenant appropriation rights; some have rights which 

though decreed may not be useful because of the lack of water 

to supply the same, the District Court determining that those 

below the tenth decreed right are of little real value. 

Aware of these factors, the District Court sought a method to 

recognize the rights of the exchange water users to obtain 

water on a basis that would take into account the use by the 

district of their appurtenant rights in the Skalkaho. If the 

exchange water users join the district, they will receive a 

credit on their assessments to be determined at a later time. 

If they do not join, the exchange water users have left to 

them all legal or equitable remedies if water is not 

delivered to them. The District Court was eminently fair in 

handling the problem of the exchange water users and was 

acting in accord with legislative authority. 
Section 85-7-1912, MCA, provides that any irrigation 

district shall have the right to contract with the owner or 

owners of the right to the use of waters in any stream for an 

exchange of water, and to supply him or them with water from 

the district system. Section 85-7-2103, MCA, provides that 

all irrigable lands in each irriga.tion district shall pay at 

the same rate for all purposes for which the lands are 

charged, "except such lands that are included within the 

district because of the exchange or substitution of water 

under the provisions of 85-7-1912." The statutes contemplate 

exactly what the District Court has done in this case. 

In a nutshell, the District Court recognized that some 

form of obligation existed from the district to the exchange 

water users. In recognition of that obligation, it will give 

a credit to the exchange water users at or above the tenth 

decreed rights if they become members of the district. If 

the exchange water users do not become members of the 

district, the newly-formed district has the option of 

contracting with the exchange water users under section 

85-7-1912, or risking the pursuit by the exchange water users 

of their remedies at law or in equity. 

3. Whether the languaqe in the deed to the State Water 

Conservation Board is enforcible as a lien or as a covenant 

running with the land. 

This is really a non-issue at the present time. The 

court amended it findings of fact and conclusions of law on 

March 26, 1983. It deleted Finding of Fact No. 99, which had 

stated that the language of the State Water Conservation Deed 

"is in the nature of a lien or covenant running with the land 

. . ." Later the District Court reinstated Finding of Fact 

No. 99 on the basis that a clerical error had occurred, the 
reinstatement taking place on April 25, 1983. The DNRC 

contends that it is doubtful whether under Rule 59, 

M.R.Civ.P., the issue is before us. 

We have stated above that we will not now determine the 

nature of the obligation if any, which is owed to the 

exchange wa.ter users. In the stance of the case before us, 

it is not necessary for us to reach that issue. If in the 

future one or more of the exchange water users brings suit 

against the DNRC or the district at law or in equity, it will 

be proper at that time to determine the nature of the 

obligation which the exchange water users cia-im. 

We do not reach in any manner the extent of the 

obligations existing between the exchange water users and the 

DNRC. We have before us only the matter of the organization 

and establishment of the Daly Ditches Irrigation District and 

the rights and duties of the district and the exchange water 

users as members towards each other. 

4. Whether further judicial proceedings are necessary to 

determine the credit for senior exchange water users. 

Here, the DNRC contends that no further judicial 

proceedings are necessary to determine the amount of the 

credit, although it admits that such hearings are necessary 

for the duration of the credit. 

The issue is raised prematurely. Until the District 

Court decides the amounts of the credits and their duration 

we have no way of determining whether the District Court is 

in error. 

5. Other issues. 

Other issues raised by the DNRC will be treated in 

connection with other subjects hereunder. 
The appeal of Bernie A. Swift or the Skalkaho Creek 

Exchange Water Users Association. 

The court found that Bernie A. Swift is a member of the 

Skalkaho Creek Exchange Water Users Association, an 

unincorporated association, and an officer of the Skalkaho 

Creek Exchange Water Users Association, Inc., a Montana 

corporation, and that he did appear and testify on behalf of 

the said unincorporated association and on behalf of the 

members of the successor corporation, including himself. 

Bernie A. Swift also claims status as an exchange water user. 

He owns 23 acres in Ravalli County and is the owner of 

Skalkaho Creek water rights which are appurtenant to his 23 

acre tract by reason of a decree entered in the case of 

Ravalli Land and Irrigation Company v. Nicol, above referred 

to. 

The court found that Bernie A. Swift has one right to 

use of water from Skalkaho Creek which is ranked third in 

priority among the decreed water rights and which allows him 

8.85 miner's inches of water. He further owns a second water 

use right appurtenant to his 23-acre tract which is ranked 

twelfth in priority among the decreed rights and which would 

allow him 14.15 miner's inches of water. 

The court further found that the DNRC and its 

predecessors have for many years and are presently exchanging 

Skalkaho Creek decreed waters for Bitteroot River water 

including the seventeenth Skalkaho right as described in 

Ravalli Land and Irrigation Company v. Nicol. The DNRC and 

its predecessors have sold waters diverted from the Skalkaho 

Creek to land owners other than the exchange users. 
The court found that Bernie A. Swift had received 

sufficient water from the Daly ditch water project on an 

exchange basis to irrigate his 23-acre tract all through the 

irrigation season, though the exact amount of water he has 

received is unknown, because there are no measuring devices 

present. 

The court found that prior to 1971 and after each normal 

irrigation system, Bernie A. Swift and his predecessors in 

interest had diverted stock water to be used on the 23-acre 

tract by means of a diversion called the Reeser Diversion. 

However, in 1971 or 1972, the Reeser Diversion was damaged by 

a flood and has been useless since that time except for a 

small amount of stock water. In 1974, the DNRC removed the 

remainder of the Reeser Diversion, thereby preventing any 

further diversion of the water at that point. The Reeser 

Diversion has not been replaced by any party. Bernie A. 

Swift uses water from other sources, including subwater, 

overflow water, and Smithy Creek water for his off-season 

irrigation purposes. 

As evidence of the existence of agreements between the 

exchange water users, including Bernie A. Swift and the DNRC 

and its predecessors, the court took into consideration the 

decree of the District Court in Brennan v. Jones, supra, the 

fact that the DNRC attempted unilaterally to revoke its 

consent to such exchange agreements by a letter of 

cancellation, and a written agreement between Ravalli Land 

and Irrigation Company and Henry and Daisy Gilmore that 

called for the exchanges of Skalkaho Creek water for 

Bitteroot River water. In the Gilmore agreement it was 

provided that if the exchange water was not delivered by the 
project, the Gilmores would immediately become entitled to 

their original Skalkaho Creek water rights. 

The District Court also found that the provision in the 

deed to the State Water Conservation Board was a 

representation by the DNRC and its predecessors to the 

exchange water users upon which the exchange water users 

relied that the DNRC and its predecessors would supply 

substitute water or exchange water for the use of their water 

rights on Skalkaho Creek for diversion to other lands. 

It is clear from the findings that without the use of 

the water rights owned by the exchange water users, the Daly 

Ditches Irrigation District would not have sufficient water 

to deliver to its contract users. 

In spite of those findings, however, as we have noted, 

the District Court did not make a final judgment respecting 

the rights of the exchange water users. As we have said, 

they can join and become members of the irrigation district, 

or they can remain outside the district and contract with the 

district for the use of their water rights. If such 

negotiations fail they may pursue any remedies at law or in 

equity . 

The principal argument on appeal of Bernie A. Swift, and 

of the exchange water users is that the District Court erred 

in providing a credit, if an exchange water user joined the 

district, only to those holders of decreed rights ra.nked 

tenth or superior. Swift and his users contend that the 

remaining holders of rights down to the seventeenth decreed 

right should also be entitled to a credit. 

We regard, however, the action of the District Court in 

establishing the tenth or superior right as a basis for 

credit if the exchange water users become members of the 
district as merely setting terms for membership of such 

exchange water users in the district. The District Court 

found in fact that the holders of water rights down to the 

seventeenth right had been supplied with exchange water 

without charge and "without reduction in volume based upon 

the flow in Skalkaho Creek." (Finding No. 65.) We have 

found it within the statutory authority of the District Court 

to make that determination for membership. Section 

85-7-107 (1) (a) , MCA. 

Since the District Court reached no final judgment on 

the rights and obligations between the district and the 

exchange water users who are not members of the District, our 

appellate powers do not reach the questions raised by Bernie 

A. Swift and the water users as to whether the right to 

receive substitute water is a covenant running with the land 

or a lien. Nor do we purport to determine here the amounts 

of water that the exchange water users are entitled to 

receive under their decreed water rights. Those questions 

are reserved for the future. 

IV. 

The Appeal of Stanton Cooper and Charles Likes 

Stanton Cooper and Charles Likes objected to the 

formation of the district. Their predecessors had entered 

into an agreement with Marcus Daly, the builder of the Daly 

ditch water project, and particularly the Hedge Ditch, 

whereby Marcus Daly was allowed to construct the Hedge Ditch 

in part in approximately the same place as the 

Blodgett-Culler-Gril.1 Ditch, and in return Daly agreed to 

transport Sleeping Child water in the Hedge Ditch. Sleeping 

Child Creek is another water channel involved in the Daly 

ditch water project. Daly agreed to be responsible for the 
maintenance of the combined Hedge and Blodgett-Culler-Grill 

Ditches to the points of distribution to Cooper and Likes. 

Before and after its junction with the Hedge Ditch, the 

maintenance of the Blodgett-Culler-Grill Ditch rests with 

Cooper and Likes. 

The court found that Cooper and Likes had established 

water rights appurtenant to their land. 

Again, the court made no final judgment with respect to 

Stanton Cooper and Charles Likes. It provided in Conclusion 

of Law No. 12, that water shall be conveyed from the 

conjunction of the Blodgett-Culler-Grill Ditch and the Hedge 

Ditch to the places of dispersion on their property "under 

conditions that may be agreed upon between the parties or may 

be later decreed." It found the same with respect to water 

from the Mason Harmony Ditch, another ditch involved in the 

project; the water shall be transported through the Hedge 

Ditch for the benefit of Cooper, again under conditions that 

may be agreed upon between the parties or later decreed. 

(Conclusion No. 13.) 

Cooper and Likes have appeared in this action and on 

appeal without counsel. They have objected to the conditions 

imposed upon them in the formation of the irrigation district 

on the ground that under section 85-7-106 (1) , MCA, they are 

interested persons whose lands or rights would be damaged in 

the formation of the district. They request that the 

conditions imposed on their water right-of-way be settled 

prior to the final formation of the district. 

The condition of the record for Cooper and Likes is much 

the same as that for the exchange water users. The court has 

not made a definitive judgment with respect to their rights 

but has left it to future negotiation or decisions. The 
District Court found however that Cooper and Likes have 

established water rights which are appurtenant to their lands 

and that there historically was transportion of their water 

free of charge in the Hedge Ditch from its junction with the 

Blodgett-Culler-Grill Ditch to the places of dispersion. 

Absent a final judgment with respect to their water 

right-of-way, we have nothing to review as an appellate court 

respecting Cooper and Likes. 

CONCLUSION 

In essence, the order and decree as amended by the 

District Court is affirmed. The organization and 

establishment of the Daly Ditches Irrigation District as 

ordered by the court is affirmed. Its provisions with 

respect to membership in the district of holders of exchange 

water use rights are affirmed. The cause is remanded to the 

District Court for such further proceedings as may be 

necessary to determine the rights of the parties or other 

interested persons. Each party to this appeal shall pay his 

or its own costs. 

We Concur: 

1. Chief Justice 
District Judge, sitting 

for Mr. Justice John C. 

Harrison