PETER A. MORRISON, etal., Plaintiffs,



### ERWIN F. HIGBEE, etai.

### , Defendants.



### ..................................... THO~~S MILLER

### AND LEWIS IIUGKES, Appellants,

VS. JAMES E. ROBERTSON and OPA MEGEE and ROSE M. MEGEE, Intervenorsarid Respondents.

Appeal from: DistrictCourt of theFifthJudicialDistrict, inand fortheCounty of Yadison, The honorable Pi. W. Lessley, Judge presiding.

Counsel of Record: For Appellants: Korrow & Sedivy; Terry Sckaplow, Bozeman, Montana For Respondents: !100re, Rice, OIConnelland Refling; avid C. ?.loon, Bozeman, Montana



### - - Submittedon Briefs: March 17, 1983 Decided: June 30, 1983

### Mr. JusticeL. C. Gulbrandson delivered theOpinionof theCourt.

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 inthe District Court 

### of the Fifth Judicial 

### District, Madison County. The two parallel ditches in question divert water out of SouthMeadow Creek, which 

### rises inSouthMeadow Creek Lake inthe BeaverheadNational Forest, flows easterly, and thenempties into Ennis Lake. The ditch used by appellants, Miller and Hughes, 

### is the firstditch of the two parallel ditches to take water out of South Meadow Creek. The second ditch, several feet below the Miller-Hughes ditch, 

### isused 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 toRobertson's land. Robertson 

### is the lastwater user

on the ditchsystem. 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 thatthe brush and trees impede ditch maintenance and consume large amounts of water. To understand how this controversy arose, we must look to a dissatisfiedwater user's actionbegun in1977. On June 22, 1977, two downstreamwater 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 distributionof water.Under section 85-5-301, MCA, the Honorable Frank E. Blair ordered a hearing todetermine the proper enforcement of the 1912 decree. After the hearing, Judge Blair ordered the appointment of Charles C. Bowman ascourt 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 clerkof court certified thatcopies 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 fallof 1979, Judge Blair asked the court referee to investigate whether the parties had complied with hisorder. 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 theMiller-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 alsomoved for substitution of the judge. The Honorable W. W. Lessley assumed jurisdiction and seta hearing on thepetitionforOctober 1, 1980. On September 24, 1980, Robertson and Megee petitioned to intervene in the proceedings for modification of the 1979order. A pre-trial hearing was not held until November 19, 1981, after whichJudge Lessley appointed aWater Master to hold a hearing on the

### merits of themodificationpetition. 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 thatthe timelimits of Rule 52(b), M.R.Civ.P., had not been followed. The District Court denied themotion and 

### set the datefor a hearing before theWater 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 inher memorandum that littleevidencewas 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 ditchbanks resulted inconsumptionof 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 themature brush from the sides of the ditches, excepting the large trees located intheHughes' yard. On July 16, 1982, the 

### District Court adopted the Water Master's decision. No noticeof entryof 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 finaljudgment was filed. A notice of entry of judgment

was finallyfiledonOctober 12, 1982. Miller and Hughes filed a noticeof appealNovember 10, 1982. The threemain issueson appeal are: 1. whether the appeal 

### is timely; 2. whether the court referee initiallyhad the authority to recommend removal of the brush; 

### and 3. whether the evidence supports the order that the brushshould be removed. Respondents have made several strong arguments regarding the timeliness of thisappeal. They claimthatthe 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 thatthepetition formodificationfiledone year laterwas
a motion to amend judgment and not timely under Rule 59(g), M.R.Civ.P. Even if thepetitionwas timely, respondentsargue thatsince thepetitionwas not noticed for hearing orheard withinthe 

### time limitations of Rule 59(d), it was deemed denied as of May 15, 1980. The time for appeal thenexpiredJune 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 argumentsmust fail simplybecause 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 noticeof entryof 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 aDistrict Court lacks jurisdiction after the motions are deemed denied. See Winn v. Winn (1982)I Mont. 

## ,651P.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 

### itsnotice of entryof judgment. This Court has consistently stated that it 

### is the filing ofthe notice of entry of judgment that begins the running of the time limitations for filing a notice of appeal. Haywood v. Sedillo (1975), 167Mont. 101, 535 P.2d 1014; PiercePacking Co.

v. District Court (1978), 177Mont.50, 579 P.2d 760. Thisrule hasbeen technicallyapplied inorder to assureproper noticeand

an understanding of when the 

### time for appeal begins to run. In both Haywood and PiercePacking, 

### we concluded thatactual notice

was not sufficient. As inPiercePacking, we areagain 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 actionbegan under section85-5-301, MCA, as a dissatisfied water user's action. The procedure governing such an action 

### is quite informal. No formal response pleadings or motions arerequired. SeeAllen v. Wampler (1964), 143 Mont. 486, 491, 392 P.2d 82, 85, quoting Gans and Klein Investment Co. v. Sanford (1932), 91Mont. 512, 8 P.2d 808; and Sain 

### v. Montana Power Co. (1936), 84 F.2d 126. Since standard trialprocedures arenot followed inthese informal, summary proceedings, the time 

### limitsgoverning post-trial procedures should notbe strictlyapplied. Appellants argue that the court referee lacked the authority torecommend the removal of brush along the ditch banks. Since theDistrictCourt adopted the referee's findings, appellantsare actuallychallenging the authority of theDistrictCourt. As noted above, this action began as a dissatisfied water user's actionprovided for insection85-5-301, MCA. The purpose of a dissatisfiedwater 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 ditchmaintenance 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 distributionby ordering

a wellmaintained ditch system. The evidence supports the Water Master's findings thatremoval 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: