PETER A. MORRISON, et al., 

Plaintiffs, 

ERWIN F. HIGBEE, et ai. , 

Defendants. ..................................... 

THO~~S MILLER AND LEWIS IIUGKES, 

Appellants, 

VS. 

JAMES E. ROBERTSON and OPA 

MEGEE and ROSE M. MEGEE, 

Intervenors arid Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

in and for the County of Yadison, 

The honorable Pi. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Korrow & Sedivy; Terry Sckaplow, Bozeman, Montana 

For Respondents: 

!100re, Rice, OIConnell and Refling; avid C. ?.loon, 

Bozeman, Montana 

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Submitted on Briefs: March 17, 1983 

Decided: June 30, 1983 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. 

Water users, Miller and Hughes, appeal from a judgment 

ordering them to remove trees and brush from along their irrigation ditches and to allow respondents, Robertson and Megee, to 

repair and maintain the ditches. The judgment was entered in the 

District Court of the Fifth Judicial District, Madison County. 

The two parallel ditches in question divert water out of 

South Meadow Creek, which rises in South Meadow Creek Lake in the 

Beaverhead National Forest, flows easterly, and then empties into 

Ennis Lake. The ditch used by appellants, Miller and Hughes, is 

the first ditch of the two parallel ditches to take water out of 

South Meadow Creek. The second ditch, several feet below the 

Miller-Hughes ditch, is used by respondents, Robertson and Megee. 

Appellant Miller diverts his water out of the upper ditch. 

The two ditches then meet carrying the water for Megee, Hughes, 

and Robertson. After the two ditches meet, respondent Megee's 

ditch diverts water across Miller's land to Megee's land. The 

water remaining in the main ditch continues then past Hughes' 

house and to Robertson's land. Robertson is the last water user 

on the ditch system. 

The present appeal arises from the District Court's order 

requiring removal of mature trees and brush along the banks of 

the ditches. Appellants, Hughes and Miller, claim that the 

ditches will wash away if the brush is removed. Respondents, 

Robertson and Megee, claim that the brush and trees impede ditch 

maintenance and consume large amounts of water. 

To understand how this controversy arose, we must look to a 

dissatisfied water user's action begun in 1977. 

On June 22, 1977, two downstream water users on South Meadow 

Creek filed a complaint against the water commissioner, seeking 

proper distribution of water under a 1912 decree. The 

complainants alleged that the water measuring devices upstream 

were defective, improperly placed, or locked, thereby preventing 

proper distribution of water. 
Under section 85-5-301, MCA, the Honorable Frank E. Blair 

ordered a hearing to determine the proper enforcement of the 1912 

decree. After the hearing, Judge Blair ordered the appointment 

of Charles C. Bowman as court referee. 

On April 20, 1979, the District Court adopted the recommendations of the court referee and filed findings of fact, conclusions of law, and a decree requiring, among other things, that 

appellants and respondents remove brush from their ditch banks. 

The clerk of court certified that copies of the findings, conclusions and decree had been sent to all interested parties. No 

document labeled "notice of entry of judgment" was filed or 

mailed by the clerk of court. 

In the fall of 1979, Judge Blair asked the court referee to 

investigate whether the parties had complied with his order. In 

April 1980, Judge Blair sent letters to the parties pointing out 

deficiencies found by the court referee. In particular, Judge 

Blair informed Miller and Hughes that brush had not been cut 

along the Miller-Hughes ditch. 

On May 5, 1980, in response to the letter from Judge Blair, 

Miller and Hughes filed a petition for modification of order and 

findings. Miller and Hughes claimed that the ditch banks would 

wash out if brush were removed. They also moved for substitution 

of the judge. The Honorable W. W. Lessley assumed jurisdiction 

and set a hearing on the petition for October 1, 1980. 

On September 24, 1980, Robertson and Megee petitioned to 

intervene in the proceedings for modification of the 1979 order. 

A pre-trial hearing was not held until November 19, 1981, after 

which Judge Lessley appointed a Water Master to hold a hearing on 

the merits of the modification petition. 

On April 23, 1982, Robertson and Megee filed a motion to 

dismiss the petition for modification, on the grounds that the 

petition was a motion to amend judgment and that the time limits 

of Rule 52(b), M.R.Civ.P., had not been followed. The District 

Court denied the motion and set the date for a hearing before the 
Water Master. 

On May 11 and May 19, 1982, the Water Master conducted 

hearings. She heard testimony, accepted exhibits, and personally 

viewed the ditches. 

On July 19, 1982, the Water Master filed her findings of 

fact, conclusions of law, and decree. She found that the brush 

along the banks impeded maintenance of the ditches. She stated 

in her memorandum that little evidence was presented to show that 

the brush prevented erosion of the ditch banks. Most importantly, she found that the aggregate effect of the brush lining 

the ditch banks resulted in consumption of large amounts of water 

which would otherwise be available for other water users on the 

South Meadow Creek. She then ordered the parties to develop a 

schedule of maintenance to remove the mature brush from the sides 

of the ditches, excepting the large trees located in the Hughes' 

yard. 

On July 16, 1982, the District Court adopted the Water 

Master's decision. No notice of entry of judgment was filed. On 

July 30, Miller and Hughes moved to amend the Master's findings 

under Rules 52(b) and 53(e), M.R.Civ.P. On August 2, Robertson 

and Megee moved to amend the judgment under Rule 59 (g) , 

M.R.Civ.P. 

On August 16 and August 30, the motions were argued. The 

District Court asked for briefs and the matter was deemed submitted September 9, 1982. On September 20, 1982, the District 

Court filed an amended judgment and memorandum. On October 8, 

1982, a final judgment was filed. A notice of entry of judgment 

was finally filed on October 12, 1982. Miller and Hughes filed a 

notice of appeal November 10, 1982. 

The three main issues on appeal are: 

1. whether the appeal is timely; 

2. whether the court referee initially had the authority to 

recommend removal of the brush; and 

3. whether the evidence supports the order that the brush 
should be removed. 

Respondents have made several strong arguments regarding the 

timeliness of this appeal. They claim that the certified mailing 

of Judge Blair's original findings of fact, conclusions of law, 

and decree by the clerk of court constituted notice of entry of 

judgment within the meaning of Rule 77(d), M.R.Civ.P. They then 

argue that the petition for modification filed one year later was 

a motion to amend judgment and not timely under Rule 59(g), 

M.R.Civ.P. 

Even if the petition was timely, respondents argue that since 

the petition was not noticed for hearing or heard within the time 

limitations of Rule 59(d), it was deemed denied as of May 15, 

1980. The time for appeal then expired June 17, 1980. 

Lastly, respondents argue that the motion to amend judgment 

filed on July 30, 1982, was also not heard within the time 

requirements of Rule 59(d), and was therefore deemed denied on 

August 10, 1982. The time for appeal expired then on September 

12, 1982. 

Respondents' procedural arguments must fail simply because no 

notice of entry of judgment was filed until October 12, 1982. 

The notice of appeal filed on Novemer 10, 1982, was therefore 

timely. 

If a notice of entry of judgment had been filed, respondents' 

argument that the time for appeal began to run when post-trial 

motions were deemed denied would be compelling, especially in 

light of the cases stating that a District Court lacks jurisdiction after the motions are deemed denied. See Winn v. Winn 

(1982) I Mont. , 651 P.2d 51, 39 St.Rep. 1831, and cases 

cited therein. Moreover, the adoption of respondents' argument 

would lead to a fundamental contradiction. If the thirty-day 

time for appeal began to run after the post-trial motions were 

deemed denied, then the District Court would lose jurisdiction 

prior to its notice of entry of judgment. 

This Court has consistently stated that it is the filing of 
the notice of entry of judgment that begins the running of the 

time limitations for filing a notice of appeal. Haywood v. 

Sedillo (1975), 167 Mont. 101, 535 P.2d 1014; Pierce Packing Co. 

v. District Court (1978), 177 Mont. 50, 579 P.2d 760. This rule 

has been technically applied in order to assure proper notice and 

an understanding of when the time for appeal begins to run. In 

both Haywood and Pierce Packing, we concluded that actual notice 

was not sufficient. As in Pierce Packing, we are again led to a 

technical application of the rule, and find that the appeal is 

timely. 

One further consideration has influenced our conclusion that 

the appeal is timely. This action began under section 85-5-301, 

MCA, as a dissatisfied water user's action. The procedure 

governing such an action is quite informal. No formal response 

pleadings or motions are required. See Allen v. Wampler (1964), 

143 Mont. 486, 491, 392 P.2d 82, 85, quoting Gans and Klein 

Investment Co. v. Sanford (1932), 91 Mont. 512, 8 P.2d 808; and 

Sain v. Montana Power Co. (1936), 84 F.2d 126. Since standard 

trial procedures are not followed in these informal, summary proceedings, the time limits governing post-tr ial procedures should 

not be strictly applied. 

Appellants argue that the court referee lacked the authority 

to recommend the removal of brush along the ditch banks. Since 

the District Court adopted the referee's findings, appellants are 

actually challenging the authority of the District Court. 

As noted above, this action began as a dissatisfied water 

user's action provided for in section 85-5-301, MCA. The purpose 

of a dissatisfied water user's action is to enforce the original 

decree, and oversee the water commissioner's distribution of 

water through properly maintained ditches, headgates, and other 

water measuring devices. See sections 85-5-301, and 85-5-302, 

MCA; Luppold v. Lewis (1977), 172 Mont. 280, 563 P.2d 538; and 

Allen, supra. Here, the District Court ordered the removal of 

trees and brush on the ditch banks in order to facilitate ditch 
maintenance and to conserve the water absorbed by the trees and 

brush for other water users. The District Court's order does 

nothing more than enhance the method of distribution by ordering 

a well maintained ditch system. 

The evidence supports the Water Master's findings that removal of the mature brush and trees would not cause significant 

erosion. The evidence also supports the findings that certain 

brush and trees need to be removed to ensure proper ditch maintenance. 

The District Court's judgment 

t 

We concur: