No. 83-348 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

GILBERT H. CATE, and MAXINE CATE, 

husband and wife, ROBERT L. CONNELL; 

SIDNEY M. GOODRICH & MILDRED GOODRICH, 

et al. , 

Plaintiffs and Appellants, 

C. LEO HARGRAVE, and ELLEN HARGRAVE, 

his wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable James M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Patrick 11. Springer, Kalispell, Montana 

For Respondents: 

Murphy, Robinson, Heckathorn & Phillips; Dana L. 

Christensen, Kalispell, Montana 

Filed: 

Submitted on Briefs: January 19, 1984 

Decided: April 19, 1984 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This action was initiated September 22, 1981, in the 

Flathead County District Court. Plaintiffs, owners of property surrounding McGregor Lake, sought a judicial determination 

of the extent of defendants' senior water right on the outlet 

stream of the lake, McGregor Creek. Plaintiffs specifically 

sought a determination of whether defendants were wasting 

water by their failure to maintain a dam on the outlet of the 

lake and whether defendants were exceeding their lawful 

appropriation in amount or place of use. Defendants counterclaimed alleging plaintiffs damaged their dam and headgate. 

From a judgment in favor of defendants, plaintiff property 

owners appeal. 

The defendants are successors in interest and owners of 

two valid appropriations of water, one dated June 27, 1919, 

and the other dated October 13, 1924. These appropriations 

total thirteen cubic feet of water per second which is diverted from McGregor Creek several miles below the outlet of 

McGregor Lake. At the outlet the defendants' predecessor in 

interest constructed in the early 1900's a dam and headgate. 

The structure is located on land leased by defendants and is 

designed to regulate the flow from the lake into the creek. 

The structure has the potential to affect the water level of 

McGregor Lake. The dam and headgate have not been maintained 

by defendants for several years and there is leakage around 

the structure. 

Since 1968, when they purchased their ranch, defendants 

have been putting to beneficial use up to thirteen cubic feet 

of water per second. Their use varies with the season, their 

needs, and climatic conditions. Plaintiffs have valid water 
rights for domestic purposes but all are later in time than 

defendants' existing rights. Plaintiffs desire that the 

level of the McGregor Lake be kept as high as possible for 

consumptive, aesthetic and recreational purposes. It is 

their contention that defendants have a responsibility to 

maintain the dam at the outlet of McGregor Lake and close the 

headgate in the dam in the fall when they are not irrigating. 

At trial both parties filed motions for partial summary 

judgment which were denied preceding the trial on October 25, 

1982. The District Court bifurcated the cause, left certain 

equi-table matters to the court and factual matters to the 

jury. After a three-day trial the jury found for defendants 

on the issue of whether defendants' senior right was being 

properly exercised a.nd that defendants incurred damage 

through plaintiffs' interference with their headgate. The 

court accepted the special verdict of the jury and awarded 

defendants court costs and attorney fees as a measure of 

their damages on the successful counterclaim. From this 

judgment, plaintiffs appeal and defendants cross-appeal 

alleging damages beyond those recognized by the District 

Court. 

We have framed the issues raised by plaintiffs, appellants hereinafter, as follows: 

1. Did the District Court err when it denied appellants' motion for partial summary judgment and not determine 

as a matter of law the complete extent of defendants' water 

right? 

2. Were the conclusions of law of the District Court 

contrary to the facts and evidence? 

3. Was the award of attorney fees an inappropriate 

measure of damages? 
4. Are the defendants entitled to additional damages 

for crop loss and decreased cattle production? 

I 

Appellants claim that their cause was prejudiced when 

the trial court failed to reach the questions of the exact 

extent of defendants' water right, whether defendants could 

change the area of beneficial use, whether the concept of 

beneficial use restricted the season of use, and whether the 

defendants had a duty to maintain the dam. Appellants claim 

that these questions had to be answered prior to the questions answered by the iury in the special verdict. Absent 

the court's ruling on these issues presented in the motion 

for summary judgment, appellants argue they were denied a 

fair determination of the factual issues. 

Appellants correctly recognize that a motion for summary judgment under Rule 56(c), M.R.Civ.P., is properly granted 

only when there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. 

Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 

509. In denying the parties' motions for partial summary 

judgment the District Court recognized that there were outstanding questions of fact concerning the Hargraves' (defendants below) water right. Given the fact that at this point 

in the proceeding, there was conflicting evidence as to how 

much water the Hargraves were putting to a beneficial use, 

the amount of acreage irrigated, and other factors that would 

affect the court's determination of the existing water right, 

we find no error in the decision denying the motion for 

partial summary judgment. Appellants simply failed to sustain their burden of establishing the absence of any genuine 
issue of material fact. Pretty on Top v. City of Hardin 

(1979), 182 Mont. 311, 315, 597 P.2d 58, 60. 

Appellants' argument that the denial of the motion for 

partial summary judgment prevented a "fair determination of 

all factual issues" is logically inconsistent. The motion 

was denied precisely because there were outstanding issues of 

fact. These factual issues of primary interest to appellants 

were addressed by the jury a.fter hearing the testimony and 

receiving the evidence. 

The special verdict form that was submitted and returned by the jury read essentially as follows: 

(1) Are defendants using in excess of 

their valid appropriation of water? 

Answer: No. 

(2) Are defendants failing to properly 

maintain the headgate at the west end of 

McGregor Lake? Answer: Yes. 

(3) Is this failure resulting in a waste 

of water? Answer: No. 

(4) Was there any damage to plaintiffs1 

water systems, aesthetic or recreational 

use of the lake as a result of defendants' using in excess of their appropriation or wasting the same? Answer: No. 

(5) Did plaintiffs damage the headgate? 

Answer: Yes. 

(6) If so, which of the plaintiffs 

caused the damage? Answer: Francis and 

Alice Shepard. 

Counsel for both parties stipulated on day one of the trial 

that the above questions comprised the issues to be decided 

at trial. The fact that the jury reached conclusions contrary to those proposed by appellants does not render the 

determination either incomplete or unfair. 
As a preliminary matter to discussing appellants' 

second issue, we note the circumstances surrounding the 

initiation of this lawsuit. 

An abnormally dry and cold winter in 1979 caused the 

level of McGregor Lake to drop to an unusually low level. 

The cold weather and lack of an insulating water depth resulted in problems with appellants' water systems; intake 

pipes laid on the bottom of the lake froze. At this point, 

appellants began to research the Hargraves' water rights and 

discovered the downstream right was prior in time. While 

appellants may not have had actual notice of the senior 

rights when they purchased their parcels on the lake, as 

junior appropriators they took their rights with constructive 

notice of the conditions existing at the time of their appropriations. Quigley v. McIntosh (1940), 110 Mont. 495, 505, 

103 P.2d 1067, 1072. This basic principle of western water 

law and the law of Montana controls much of our decision 

today. See also, State ex rel. Crowley v. District Court 

(1939), 108 Mont. 89, 88 P.2d 23; Oliver v. Skinner (1951), 

190 Or. 423, 226 P.2d 507. 

Appellants object to the trial court's conclusion of 

law that all issues raised by the complaint and pretrial 

order were determined. The court indicated that further 

details delineating their water rights should be addressed by 

the Water Courts. 

Appellants object to the judgment because it did not 

address the question of whether Hargraves' water use could be 

restricted to their seasonal needs for irrigation. As it now 

stands, water flows uninterrupted all year over the headgate 

of the dam on McGregor Lake. 
Generally, there is no division of the year into an 

irrigation season and a storage season, so as to give later 

direct users a seasonal preference over earlier reservoirs or 

vice versa. See, People ex rel. Park Reservoir Co. v. 

Hinderlider (1936), 98 Colo. 505, 57 P.2d 894; Trelease, 

Water Law, 3rd ed. at 106-107 (1979). 

There have been instances where Montana courts have 

restricted an appropriator to a certain amount of water to be 

applied during certain times of the year. An appropriator in 

Smith v. Duff (1909), 39 Mont. 382, 102 P. 981, who changed 

his use to irrigation was restricted to using the water in 

the spring and fa-11, which is when the water was used in a 

prior mining operation. Similarly, in Galiger v. McNulty 

(1927), 80 Mont. 339, 260 P. 401, the defendant was restricted to a certain amount of use from May to November in accordance with a pattern established by his original use in 

mining. In both instances, the Court looked to an established prior pattern of use differing from the present use. 

Appellants have presented no evidence of a former pattern of 

use differing from what the Hargraves are using now, were 

using during the problem year of 1979, or presumably will be 

using in the future. The District Court cannot be faulted 

for not reaching the question of seasonal use, particularly 

when issues stipulated by counsel to be determined at trial 

did not specify such. 

In 1940 this Court in Quigley v. McIntosh (1940), 110 

Mont. 495, 103 P.2d 1067, was presented with a factual situation where senior appropriators of Three Mile Creek, an 

adjudicated stream in Powell County, began to use a greater 

amount of water from the creek than a 1913 decree allowed. 

The prior decree only addressed the acreage of land the 
senior appropriators could irrigate and the flow rate that 

could be applied. In this respect, the case is analogous to 

the case at bar. When the appropriator diverted water to new 

acreage, a fish pond allegedly used as a swimming hole, the 

trial court found the junior users upstream to be injured. 

This Court affirmed, noting that while the 191.3 decree did 

not specify days that water could be taken or a total volume 

of water, this could not be interpreted as a right to an 

absolutely uninterrupted flow. Such interpretation would be 

erroneous as it would sanction the senior appropriator's 

expanded use to the detriment of subsequent appropriators and 

beyond what could be beneficially applied. Quigley v. 

McIntosh, 110 Mont. at 510, 103 P.2d at 174. 

We concur with the broad. holding of Quigley that a 

District Court may in certain instances "fill in" a pre-1973 

water decree with further delineations such as the time or 

season of use and acreage of application. See Stone, Montana 

Water --- Law for the 1980s, at 61 (1981). Rut we would limit 

such judicial interpretation of decrees to situations similar 

to that addressed by the Quigley Court: where the appropriator has either expa.nded his appropriation, exceeded what can 

be benefically used or damaged junior appropriators. 

Appellants' reliance on Quigley cannot be supported as 

the trial court found the Hargraves were not using water in 

excess of their appropriation, were not wasting such water 

and appellants were not damaged. 

Appellants have alleged that the Hargraves added acrea.ge to land originally irrigated under their 1919 and 1924 

apropriative rights. The Hargraves' predecessor in interest 

did begin in 1941 to irrigate eighty acres of land in the 

middle of the existing irrigated acreage. These la.nds were 
not previously irrigated. However, from this Court's 1897 

decision in Murray v. Tingley (1897), 20 Mont. 260, 50 P. 

723, until the 1973 Water Use Act, a party in Montana could 

acquire a right on an unadjudicated stream by putting the 

water to a beneficial use. Musselshel~l Valley Co. v. Cooley 

(1929), 86 Mont. 276, 283 P. 213. By the limitation of the 

Montana law in effect in 1941, a change in place of use was 

possible only if other claimants were not injured. Appellants are precluded from claiming they were adversely affected by the addition of the eighty acres in 1941 by the simple 

fact that they held no rights to the waters of McGregor Lake 

or McGregor Creek at that time. 

We will not impose upon a downstream senior appropriator an affirmative duty to maintain a dam and headgate for 

the benefit of upstream junior water users. If there had 

been a finding that operation of the dam injured appellants1 

interests, our decision might be otherwise. 

Appellants1 additional objection to the trial court's 

conclusions of law concerned the finding that appellants' 

counsel had no objection to the special verdict damage award 

of attorney fees as a measure of damages. This conclusion 

reads as follows: 

"5. That the Court inquired of Plaintiffs' counsel after the verdict was read 

as to whether he had any objections to 

the nature of the damage award, such 

award specifying attorneys fees in an 

unstated amount rather than specifying a 

dollar figure as damages, and Plaintiffs' 

counsel then stating he had no 

objection." 

Appellants allege that there was a discussion about the 

attorney fees, but such discussion was not in front of the 

jury as the conclusion of law implies. It is argued that 
this mischaracterization of the appella.nts ' position on the 

propriety of the damage award prejudiced their cause. 

We have reviewed the transcript in detail and find the 

conclusion of law neither misleading nor prejudicial. We do 

not agree with counsel that the statement implies the conversation was held in front of the jury. 

I11 

Appellants' third contention is that the award of 

attorney fees was an inappropriate measure of damage. The 

verdict returned by the jury did not. specify the damages in 

dollars and cents despite instructions on the verdict form. 

The jury inserted "court costs and lawyers fees" in lieu of a 

specified dollar amount. District Court Judge Salansky set a 

later hearing to determine the exact amount of those fees and 

costs. At this hearing it was determined that fees and costs 

totaled $10,933.50 and $2,581.19 respectively. This award 

was incorporated into the judgment of the court dated January 

25, 1983. 

Prevailing parties are generally not awarded attorney 

fees in Montana unless a statutory or contractual provision 

expressly provides for such. This Court has recognized the 

right of the District Court to grant a party complete relief 

under their powers of equity. Holmstrom Land Co. v. Hunter 

(1979), 182 Mont. 43, 595 P.2d 360; Foy v. Anderson (1978), 

176 Mont. 507, 580 P.2d 114. 

The case at bar can be distinguished from the above 

cited cases in which an award of attorney fees was made to 

make the prevailing party whole. In the present case attorney fees were granted by the jury in their special verdict 

form as a measure of damages. The jury found that appellants 
Francis and Alice Shepard caused damage to the Hargraves' 

headgate by trespassing and attempting to stop the flow of 

water through the dam. This reprehensible form of self-help 

provoked events which culminated in the lawsuit. The 

Hargraves as defendants were compelled to expend substantial 

sums of money to prove that which was obvious to them from 

the start: their valid senior right to thirteen cubic feet 

per second of McGregor Creek. The damages are consequential 

to the interference with the headgate, though not so remote 

to preclude recovery. We affirm the trial court's determination that such damages are compensable. We do not condone 

the method by which the jury calculated the amount of the 

damage award, by simply substituting and granting attorney 

fees and costs. However, given the particular circumstances 

presented, we will not disturb the award for its technical 

flaws. 

IV 

As a final matter, we address the Hargraves' 

cross-appeal claiming additional compensation for decreased 

cattle production and crop losses due to appellants' interference with their headgate. This claim was timely presented 

by the testimony and evidence in the proceeding below. The 

jury considered and refused such compensation. We will not 

substitute our judgment for theirs. The cross-appeal is 

denied. 

The judgment of the District Court is affirmed. 

344$ kp&AQ- Chief Justice 
We concur: