No. 83-348 IN THE SUPREME COURT OF THE STATEOF MONTANA 1984

GILBERT H. CATE,and MAXINE CATE, husband andwife,ROBERT 

### L. CONNELL; SIDNEYM. GOODRICH & MILDRED GOODRICH, et al.

## , PlaintiffsandAppellants,

C. LEOHARGRAVE,and ELLEN HARGRAVE, hiswife, Defendantsand Respondents.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, Inand for the County of Flathead, The Honorable JamesM. Salansky,Judgepresiding.

COUNSEL OF RECORD: ForAppellants: 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

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This action was initiated September 22, 1981, in the Flathead CountyDistrictCourt. Plaintiffs,owners ofproperty surrounding McGregor Lake, sought a judicial determination of the extentof defendants' seniorwater righton the outlet stream of the lake,McGregor Creek. Plaintiffs specifically sought a determination of whether defendants were wasting waterby their failuretomaintain a dam on the outlet of the lake and whether defendants were exceeding their lawful appropriation in amountorplace ofuse. Defendants counterclaimed alleging plaintiffs damaged their dam and headgate. From a judgment in favor of defendants, plaintiff property

ownersappeal. Thedefendantsare successors in interestand ownersof 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 fromMcGregor Creek severalmiles 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. Thedam and headgatehave notbeenmaintained by defendants for several years and there is leakage around the structure. Since 1968, when they purchased their ranch,defendants have been putting tobeneficialuse up to thirteen cubic feet of water per second. Theiruse varieswith the season,their needs, and climatic conditions. Plaintiffs have valid waterrights 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 thedam at the outlet ofMcGregor Lake and close the headgate in thedam in the fallwhen they arenot irrigating. At trialboth parties filedmotions forpartial summary judgment which were denied preceding the trial on October 25, 1982. The DistrictCourt bifurcated the cause, left certain equi-tablematters 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, appellantshereinafter,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 factsand evidence? 3. Was the award of attorney fees an inappropriate

measure ofdamages?4. Are the defendants entitled to additional damages for crop lossand 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 tomaintain 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 amotion for summary judgmentunder Rule 56(c), M.R.Civ.P., is properly granted only when there isno genuine issue ofmaterial 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 thispoint in the proceeding, there was conflicting evidence as to how much water the Hargraves were putting to a beneficial use, the amountof acreage irrigated,and other factors that would affect the court'sdetermination of the existingwater 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 genuineissue of material fact. Pretty on Top v. City of Hardin (1979),182Mont. 311, 315, 597P.2d 58, 60. Appellants' argument that the denial of themotion 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 ofprimary interest to appellants

were addressed by the jury a.fterhearing the testimony and receivingthe evidence. The special verdict form that was submitted and returnedby 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 awaste 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 orunfair.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 juniorappropriatorsthey took their rights with constructive notice of the conditionsexisting 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), 190Or. 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 theirwater rights should be addressedby the Water Courts. Appellants object to the judgment because it did not address the questionofwhetherHargraves' water use could be restricted to their seasonalneeds for irrigation. As itnow stands, water flows uninterrupted all year over the headgate of the dam onMcGregor Lake.Generally, there is no division of the year into an irrigation season and a storage season, so as to give later directusers a seasonalpreference over earlier reservoirsor 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 appropriatorto a certain amount ofwater 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),80Mont. 339, 260 P. 401,the defendantwas restricted to a certain amount of use fromMay toNovember 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 presentedwith 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 thesenior appropriators could irrigate and the flow rate that could be applied. In this respect, the case is analogous to the case atbar. When the appropriator divertedwater tonew acreage, a fish pond allegedlyused as a swimminghole, the trial court found the junior users upstream to be injured. This Court affirmed, noting that while the 191.3decree 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 expandeduse to the detriment of subsequent appropriatorsand beyond what could be beneficially applied. Quigley v. McIntosh, 110Mont. at 510, 103 P.2d at 174. We concur with the broad. holding of Quigley that a District Courtmay in certain instances "fill in" a pre-1973 water decree with further delineations such as the time or

seasonofuse 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.ndedhis appropriation, exceededwhat can be beneficallyused ordamaged junior appropriators. Appellants' reliance on Quigley cannot be supported as the trial court found the Hargraveswere not using water in

excess of their appropriation, were not wasting such water and appellantswere notdamaged. Appellants have alleged that the Hargraves added acrea.geto 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.ndswerenot 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 theywere adversely affected by the addition of the eighty acres in 1941 by the simple fact that they held no rights to the waters ofMcGregor Lake

orMcGregor 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,ourdecision mightbe otherwise. Appellants1additional objection to the trial court's conclusions of law concerned the finding that appellants' counsel had no objection to the specialverdictdamage award of attorney fees as a measure of damages. This conclusion readsas follows: "5. That the Court inquired of Plaintiffs' counsel after theverdictwas 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 figureasdamages,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 thatthis 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 agreewith counselthat the statement impliesthe conversationwasheld in frontof 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 "courtcostsand lawyers fees" in lieuof a specifieddollar amount. District CourtJudgeSalansky seta laterhearing to determine the exact amountof those feesand costs. At this hearing itwas determined that feesand costs totaled $10,933.50 and $2,581.19 respectively. This award

was incorporated into the judgment of the courtdated 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 DistrictCourt to grant a party complete relief under their powers of equity. Holmstrom Land Co. v. Hunter (1979), 182Mont. 43, 595 P.2d 360; Foy v. Anderson (1978), 176Mont. 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 thepresent case attorney fees were granted by the jury in their special verdict formas ameasure ofdamages. The jury found that appellantsFrancis 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 defendantswere 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 theparticular 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 claimwas 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 theDistrictCourt isaffirmed. 

# 344$kp&AQ- Chief JusticeWe concur: