310. 82-233 

IN TI-IE SUPREME COURT OF TIIE STATE OF MONTANA 

1983 

GIWNITE DITCH CO., et al., 

Plaintiffs, 

WILLIAM ANDERSON, et al.. , 

Defendants. 

CHARLES DESCHEEMAEKER, GEORGE PJ. 

GAUGER and WILL G. METZ, JR., 

Petitioners and Xespondents, 

-vsLAKRY PIHLAJA, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, The Honorable 

Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Anderson, Brown, Gerbase, Cebull & Jones; Andrew J. 

Lensink, Billings, Montana 

For Respondents: 

Ayers & Alterowitz; Arthur W. Ayers, Jr., Red Lodge, 

Montana 

For Arriicus Curiae: 

Donald D. MacIntyre, Dept. of Natural Resources, 

Helena, Montana 

-- - --- 

Submitted: January 14, 19 83 

Decided : May 5, 1983 

Filed: MAY' 5 - 1983 

- -.--- - - - -- -- . -- 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

This action was instituted in the District Court of the 

Thirteenth Judicial District of the State of Montana, County 

of Carbon, requesting the District Court to amend a water 

rights decree entered in 1970 and to declare petitioners' 

water rights senior to those of respondent, here the 

appellant. On December 16, 1981, the District Court entered 

its order "clarifying" the decree entered in 1970. The 

effect of the court's order wa.s to find the waters of Clear 

Creek to be part of the Rock Creek system, declare the rights 

of petitioners in Rock Creek water to be senior to the rights 

of appellant, and require appellant to allow Clear Creek 

water to flow into Rock Creek so that petitioners' rights 

could be satisfied before appellant's rights were exercised. 

Appellant appeals from that order. We affirm. 

The appellant is owner of water rights in Clear Creek, 

the earliest right dating to 1910. Petitioners have water 

rights in Rock Creek, dating to 1896 which were decreed in 

Granite Ditch Co., et al., v. William Anderson, et al., Cause 

No. 275 (Thirteenth Judicial District Court, Carbon County, 

August 21, 1903.) Clear Creek is a tributary of Rock Creek. 

Appellant had obtained a court order issued February 17, 

1970, without notice, directing the Rock Creek water 

commissioner to "carry out" the Clear Creek water rights of 

appellant "in accordance with the filing thereof, contingent 

on water being available for said filings and. subject to 

hearing objections of any party contending to be injured 

thereby." The involvement of the water commissioner of Rock 

Creek stemmed from the fact that the Clear Creek water rights 

were diverted at or near the mouth or outlet of Clear Creek 

into Rock Creek, and then carried in the natural course of 
Rock Creek for approximately one and a half miles to the 

headgate of the High Line Ditch Company, where the water was 

again diverted and carried in the High Line Ditch Company 

ditch to the land of appellant for irrigation usage. 

As a consequence of the court permission granted 

February 17, 1970, the water commissioner has honored in full 

the requests of appellant for water without regard to any 

priority in the relationship of Clear Creek water rights to 

Rock Creek water rights. The result is that in times of 

water shortage senior Rock Creek decreed water rights are cut 

off, while appellant continues to receive water under his 

junior Clear Creek appropriated water rights. This 

circumstance became known to Rock Creek water users in 1977 

for the first time, and three of them filed the petition 

which is the basis for the instant action seeking to have the 

1970 court order rescinded and, in effect, direct the water 

commissioner to subject the Clear Creek water rights of 

appellant to the priorities of Rock Creek water rights. 

The following issues are presented for review: 

1. Whether the appeal should be dismissed because 

notice of appeal was not timely filed? 

2. Whether the District Court had jurisdiction under 

sections 3-7-213, 3-7-501, MCA, to hear the petition 

regarding the administration of water right priorities on 

Clear Creek and Rock Creek? 

3. Whether the failure to join other owners of water 

rights on Clear Creek requires remand of this cause for 

joinder, or alternately dismissal under Rule 19, M.R.Civ.P.? 

4. Whether the District Court's order is contrary to 

Montana law? 
5. Whether the District Court's order violates due 

process rights of appellant and other Clear Creek water right 

owners ? 

6. Whether the District Court's order denies appellant 

equal protection of the laws? 

We hereafter treat issues one and two separately and 

consolidate issues three through six. 

ISSUE 1 -- WHETHER THE APPEAL SHOULD BE DISMISSED BECAUSE 

NOTICE OF APPEAL WAS NOT TIMELY FILED? 

Respondents contend that appellant's notice of appeal, 

filed April 1, 1982, was not timely and therefore this appeal 

should be dismissed. The premise underlying respondents' 

position is that the order entered by the District Court on 

December 17, 1981, constituted a final order, from which date 

timeliness of appeal under Rule 5, M.R.App.Civ.P., must be 

determined. Respondents further maintain that appellant's 

"Motion for Clarification", filed January 19, 1982, does not 

suspend the running of time for filing notice of appeal 

because Rule 5, M.R.App.Civ.P., specifically limits 

suspension to motions timely filed pursuant to Rules 50(b) 

[motion for judgment notwithstanding verdict] , 52 (b) [motion 

for amendment of or addition to findings of fact], or 59 

[motion for new trial], M.R.Civ.P. 

Respondents' argument is not well taken. Absent an 

express determination that there is no just reason for delay 

and certification as final judgment, an order adjudicating 

the rights and liabilities of less than all parties is not 

appealable. Rule 54(b), M.R.Civ.P.; Benders v. Stratton 

(1982) Mont . , 655 P.2d 989, 39 St.Rep. 2389. The 

December 17, 1981 order which determined only the rights of 

the appellant vis-a-vis those of respondents was not 

certified by the District Court as a final judgment. 
Therefore, this cause was not ripe for appeal until March 4, 

1982 when the interests of - all parties, including an 

intervenor, were finally determined. 

Furthermore, under Rule 5, M.R.App.Civ.P., the thirty 

day period for filing of notice of appeal does not commence 

to run until the clerk of court properly serves notice of 

entry of judgment as required by Rule 77(d), M.R.Civ.P. 

Pierce Packing Co. v. District Court of the Thirteenth 

Judicial District (1978), 177 Mont. 50, 579 P.2d 760. 

Because here the clerk of the District Court did not serve 

notice of entry of judgment upon the parties, respondents beg 

the question by asserting that the thirty day period provided 

under Rule 5, M.R.App.Civ.P., has expired, when it has not 

yet commenced. Cf. Rex v. Rex (1982), Mont . , 649 

P.2d 460, 39 St.Rep. 1432, where there was neither a final 

judgment nor service of notice of entry of judgment and the 

combined factors constituted a jurisdictional defect. 

We hold that the notice of appeal was timely made and 

proceed to examine the substantive issues raised herein. 

ISSUE 2 -- DID THE DISTRICT COURT HAVE JURISDICTION TO HEAR 

THIS MATTER? 

Appellant argues exclusive jurisdiction to resolve water 

disputes lies with the duly elected water judge of the water 

division in which the waterways are located pursuant to 

sections 3-7-101, 102, and 3-7-501, MCA, which provide in 

pertinent part as follows: 

"3-7-101. Water divisions. To adjudicate existing 

water rights water divisions are established as 

defined in 3-7-102. A water division shall be 

presided over by a water judge." 

"3-7-102. Water divisions boundaries. There are 

four water divisions whose boundaries are formed by 

the natural divides between drainages and the 

borders of the state of Montana and which are 

described as follows: 
(1) The Yellowstone River Basin water division 

consists of those areas drained by the Yellowstone 

and Little Missouri Rivers and any remaining areas 

in Carter County . . ." 

"3-7-501. Jurisdiction. (1) The jurisdiction of 

each judicial district concerning the determination 

and interpretation of existing water rights is 

exercised exclusively by it through the water 

division or water divisions that contain the 

judicial district wholly or partly. 

(2) No water judge may preside over matters 

concerning the determination and interpretation of 

existing water rights beyond the boundaries 

specified in 3-7-102 for his division except as 

provided in 3-7-201 and 3-7-213. 

(3) The water judge for each division shall 

exercise jurisdiction over all matters concerning 

the determination and interpretation of existing 

water rights within his division as specified in 

3-7-102 that are considered filed in or transferred 

to a judicial district wholly or partly within the 

division." 

After the instant action was filed on May 12, 1977, 

District Judge Jack D. Shanstrom, acting as water judge, 

designated the presiding judge of the Thirteenth Judicial 

District, Judge Charles Luedke, to be the water judge for 

purposes of presiding over the proceedings here at issue. 

The appellant contends that Judge Luedke was without 

jurisdiction because the water judge did not comply with 

statutory requirements for designating an alternate judge to 

serve as water judge. Appellant relies upon section 3-7-213, 

MCA, which provides: 

"3-7-213. Designation of alternate judge. The 

water judge may designate any other district judge 

or retired district judge to preside in his absence 

on his behalf as water judge for the immediate 

enforcement of an existing decree or the immediate 

granting of extraordinary relief as may be provided 

for by law upon an allegation of irreparable harm." 

Appellant contends the requirements of section 3-7-213, 

MCA, have not been met and that Judge Luedke did not have 

jurisdiction. We find such argument to not be dispositive of 

the issue. 
Section 3-7-501 (2) , MCA, hereinbefore set forth, 

provides that no water judge may preside over matters beyond 

the boundaries of his water division. The apparent purpose 

of the statute is to recognize the parochial nature of water 

usage and assure that water judges are conversant with the 

history of water usage when making water adjudications. The 

provisions of section 3-7-213, MCA, governing designation of 

an alterna.te judge, must be interpreted in con junction with 

the provisions of section 3-7-501. When the two sections are 

integrated we find that the intent of the legislature was to 

provide that a district judge, sitting as a water judge, 

could not serve beyond the boundaries of his division absent 

the showing required by section 3-7-213, MCA. In other words 

Judge Shanstrom could not have called in a district judge 

from outside the division to serve as water judge in the 

Yellowstone River Basin Water Division without a showing that 

there was "an immediate enforcement of an existing decree or 

the immediate granting of extraordinary relief." No such 

showing was necessary here. Judge Luedke served as a 

district judge with general jurisdiction over water rights 

matters and he was located within the Yellowstone River Basin 

Water Division. Judge Luedke clearly had jurisdiction. 

CONSOLIDATION - OF ISSUES --- 3 THRU 6 

WHETHER THE DISTRICT COURT VIOLATED ANY CONSTITUTIONAL RIGHTS 

OF APPELLANT OR ACTED CONTRARY TO MONTANA LAW IN INTERPRETING 

THE 1970 WATER RIGHTS DECREE? 

Appellants contentions categorized in issues 3 thru 6 

rest upon two bases. First, appellant assumes that the 

adjudication here at bar, affects people not before the 

court. Secondly, appellant believes that Clear Creek water 

rights can be adjudicated separate and apart from Rock Creek 

water rights. Both contentions fail. 
With respect to the contention that rights not before 

the court were being adjudicated, the District Court, in its 

memorandum in support of final order, stated: 

"The second principal ground for resistence by 

respondent Pihlaja is his contention that to grant 

the relief requested by petitioners will be 

tantamount to ordering that the separate water 

right adjudication decrees of Clear Creek and Rock 

Creek be administered as one, which would be 

violative of the due process rights of all of the 

other owners of water rights in Clear Creek. 

"If that were the scope of relief sought by the 

present petitioners, the respondents position would 

be well-taken. However, the present petition is 

limited to the water and water rights which DeVries 

and Pihlaja rendered subject to this action, the 

Rock Creek cause, by the filing of their original 

petition and invoking Court jurisdiction as to them 

and securing an Order which allegedly affects the 

Rock Creek decreed rights of the present 

petitioners. Whether the present petition is 

construed as a continuation of the legal momentum 

created by the original petition and Order issued 

thereon, or is construed as a complaint of 

dissatisfied Rock Creek water users under section 

85-5-301, MCA, it is confined to the question of 

the proprieties of the water allocation being made 

by the Water Commissioner under the influence of 

the February 17, 1970 Order. In that way the 

relief sought by the present petitioners is 

actually a matter of directing the Water 

Commissioner with respect to the proper 

interpretation and effect to be given to the 

Language 'contingent on water being available for 

said filings.' The present petitioners contend 

that such 'availability' should be measured 

according to priority rights vested in Rock Creek 

water right owners and respondent contends that it 

should not. The issue raised is, therefore, far 

short of any request to administer two separate 

decrees as one." 

We agree with the District Court. The only rights 

affected by the court's order are the rights of the parties 

before the court. The court held that the proper 

interpretation to be given to the February 17, 1970 Order, 

was simply that "available water" had to recognize senior 

rights in Rock Creek. This did not administer two streams 

and does not affect rights not before the court. 

We now turn our attention to the basic problem involved, 

nameiy, a determination of the relationship between the Clear 
Creek water in which appellant has rights and the decreed 

water rights of petitioners in Rock Creek. 

It is undisputed that Clear Creek is a tributary of Rock 

Creek. As such, its waters belong to Rock Creek to the 

extent of prior appropriations. Woodward v. Perkins (1944) , 

116 Mont. 46, 147 P.2d 1016; Loyning v. Rankin (1946), 118 

Mont. 235, 165 P.2d 1006. 

It is also undisputed that the decreed water rights of 

the petitioners are prior in time to the Clear Creek 

appropriations acquired by appellants. We need not cite 

authority for the proposition that "first in time, first in 

right" is the controlling principle. We agree with the 

District Court that the 1970 Court Order, applied by the Rock 

Creek water commissioner to fulfill junior appropriations 

ahead of the prior decreed rights of petitioners, was 

improper. The District Court was correct in honoring the 

senior rights of petitioners in Rock Creek and requiring that 

the water rights of appellants be administered so that these 

senior rights be given priority. 

We affirm the order of the Di 

We concur: V 

Chief 

24 6h4, Justice "& 4 
Mr. Justice Fred J. Weber, respectfully dissents as follows: 

While in general I agree with the legal theories stated 

in the majority opinion, I do not agree with the result. 

The contradiction which is not clearly resolved is 

pointed out in the majority quotation from the District Court 

opinion which states: 

"The second principal ground for resistance by 

respondent Pihlaja is his contention that to grant 

the relief requested by petitioners will be 

tantamount to ordering that the separate water 

right adjudication decrees of Clear Creek and Rock 

Creek be administered as one, which would be 

violative of the due process rights of all of the 

other owners of water rights in Clear Creek. 

"If that were the scope of relief sought by the 

present petitioners, the respondent's position 

would be well taken . . . " 

The order of the District Court does result in rights on 

Clear Creek and Rock Creek being administered as one. 

The petition of February 17, 1970, sought approval for 

the use of Rock Creek as a conduit to carry Clear Creek water 

for approximately one and one-quarter miles. The 1970 order 

does not indicate any intention on the part of petitioners or 

the District Court to subject Clear Creek rights to Rock 

Creek rights as a result of the application. Nonetheless, 

the District Court in its memorandum stated: 

"That brings us to the basic problem involved, 

namely, a determination of the relationship between 

the Clear Creek water and water rights of 

respondent, and the decreed water rights in Rock 

Creek of the present petitioners." 

The District Court then pointed out that the decreed Rock 

Creek rights are prior in time to the Clear Creek 

appropriations. 

The District Court then made its "clarification" of the 

1970 order. The effect of that "clarification" is to hold 
that the request to transport water in Clear Creek subjected 

Clear Creek rights to the Rock Creek adjudication. As a 

result, appellant is now required to allow his Clear Creek 

water to flow into Rock Creek where it is to be used by Rock 

Creek appropriators during times of water shortage. 

As a result, for the parties to this action, two 

separate streams are administered as one, a result which the 

District Court indicated it did not intend. I do not find 

the 1970 petition and order a sufficient basis for that type 

of action. 

From the majority opinion, which is founded upon the 

principle of first in time being first in right, an owner of 

a Rock Creek water right can arbitrarily sue any owner of a 

Clear Creek right and restrain his usage of water during 

times of shortage. In the absence of an adjudication which 

covers both streams, I do not agree with that conclusion.