No. 87-111 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

LAWRENCE E. WALKER and DARLENE 

E. WALKER, 

Plaintiffs and Appellants, 

-vsMAURICE A. WARNER, JR., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Wellcome, Frost & Bartlett; Albert A. Frost, 

Bozeman, Montana 

For Respondent: 

Robert Kolesar, Bozeman, Montana 

AUG 1 9 1987 

Filed: 

Submitted on Briefs: July 14, 1987 

Decided: August 19, 1987 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Eighteenth Judicial District, 

Gallatin County, found Mr. Warner in contempt of court for 

failing to comply with a judgment ordering the parties to 

abide by a settlement agreement. The agreement established 

the Walkers' right to control the level of a pond which Mr. 

Warner complained was causing flooding on his property. We 

affirm. 

The issues are: 

1. Did the District Court err in finding Mr. Warner in 

contempt? 

2. Did the District Court err in failing to grant Mr. 

Warner injunctive relief? 

3. Did the District Court err in assessing costs 

against Mr. Warner? 

Mr. Warner also argues that the Walkers' notice of 

appeal was untimely filed. Since the Walkers' brief does not 

raise any new issues on cross-appeal, that issue need not be 

discussed. 

The Walkers and Mr. Warner are neighbors. Their subdivision formerly included four ponds, for aesthetic purposes. 

Water from the ponds caused a leakage problem in Mr. Warner's 

basement. This became one subject of an action previously 

appealed to this Court. See Haugen Trust v. Warner (19831, 

204 Mont. 508, 665 P.2d 1132. After that action was remanded 

to District Court, the parties reached a settlement agreement 

whereby two of the ponds would be filled in and Pond 3 would 

be supplied with water and drainage through the use of culverts and pipes to be installed at shared expense. Specifically, the agreement provided: 
6. All the parties agree that a discharge 

culvert will be installed as the outlet from Pond 

Number 3 to Pond Number 4 (which is located north 

of Number 3). Said culvert will be installed 

within the 10 foot easement as set forth in the 

covenants (Section 111, Subsection I) under the 

road known as Mallard Lane and will be the same 

size as the culvert currently used as the discharge 

culvert from Pond Number 3. Larry Walker shall be 

entitled to control the water level in Pond Number 

3 by adjusting the inflow and outflow of said pond. 

7. All the parties agree to install a 12 inch 

underground pipe from Dry Creek along the path of 

the previous ditch located on the north side of Lot 

3 (Block 9, Middle Creek Meadows Subdivision #3) to 

the existing concrete divider box, and from said 

divider to Pond #3 to serve as a water supply 

conduit. Walker shall maintain said pipe and 

control the flow of water therein. 

In a judgment nunc pro tunc, the court ordered the parties to 

comply with the provisions of their agreement. 

The rerouting of waters through the pipe system was 

completed. Some of the pipes lay under Mr. Warner's property. The Walkers chose not to use additional water available 

to supply the pond, from the "Haugen ditch. " Because of a 

disagreement among the parties as to the necessary height of 

the exit pipe from Pond 3 to Pond 4, the pipe was lowered and 

then raised again. Then the Walkers determined that in order 

to maintain adequate water depth in Pond 3, they needed to 

partially block the flow of water to its other destinations 

at the culvert where it was diverted from Dry Creek and in 

the concrete divider box. They placed boards in these plates, to block the flow of water. The boards caused back 

pressure producing wet spots on Mr. Warner's property. Mr. 

Warner spoke with Mrs. Walker about the problem, but they did 

not arrive at a mutually satisfactory solution. Each time 
the Walkers would place boards at the culvert or in the 

divider box, Mr. Warner would remove them. 

Mr. Warner's repeated removal of the boards led to this 

suit, in which he was accused of contempt of court for refusing to honor the Walkers' right to control the water level in 

Pond 3. The Walkers also complained of stagnation in the 

pond and asked that Mr. Warner be enjoined from interfering 

with their control of the flow of water through the system. 

Mr. Warner counterclaimed for damages to his property caused 

by misuse of the water level controls. He requested an 

injunction prohibiting the Walkers from interfering with the 

culvert serving Pond 3. After 2 days of trial, the District 

Court viewed the property. Mr. Warner was found guilty of 

contempt, was assessed a $500 fine, and was ordered to pay 

the Walkers' court costs. The court concluded that the 

stagnant conditions in the pond were caused by the Walkers' 

refusal to use the Haugen ditch water to help fill the pond, 

not by any action of Mr. Warner's. 

I 

Did the District Court err in finding Mr. Warner in 

contempt? 

Mr. Warner argues that the system of pipes and culverts 

has engineering and operational shortcomings which became 

apparent shortly after installation. He asserts that he 

should not be held in contempt for his efforts to protect his 

property and to remedy these shortcomings within the few 

months following installation of the system. 

Under S 3--5O(l) (e) , MCA, it is a contempt of the 

authority of the court to act in "disobedience of any lawful 

judgment, order, or process of the court." The District 

Court's judgment nunc pro tunc requires the parties to abide 

by the settlement agreement, which allows the Walkers to 

control the pipeline system supplying water to Pond 3. 
Mr. Warner admitted at the hearing that he removed the 

boards the Walkers placed to control the water level in Pond 

3, and that he knew he was interfering with the Walkers' 

right to control the water level. Although it is conceded 

that the system has intrinsic problems, nothing in the agreement or in the court's order to comply with the agreement 

gave Mr. Warner the authority to correct these problems; 

control was clearly given to the Walkers. The District Court 

entered extensive findings demonstrating that it had considered this issue in depth. We conclude that the District 

Court did not err in finding Mr. Warner in contempt. 

I1 

Did the District Court err in failing to grant Mr. 

Warner injunctive relief? 

Mr. Warner argues that the Walkers' use of boards to 

block the flow of water causes wet spots on his property and 

constitutes a temporary continuing nuisance. He suggests 

that the water level in the pond should be controlled through 

the use of Haugen ditch water, lowering the boards in the 

divider box, unblocking the culvert from the divider box to 

Pond 4, and reinstalling the pipe from Pond 3 to Pond 4. His 

proposal, he says, would not cause water seepage and saturation on his property, yet would allow maintenance of the 

proper water level in Pond 3. He asked the District Court to 

enjoin the Walkers from allowing the water level in the 

divider box to rise above a certain level and from blocking 

Dry Creek during November, December, January, and February. 

The court did not grant any such injunction. 

The District Court found that "[alny water spots on 

Warner's property should be only temporary," in the opinion 

of the builder of the water system, Ray Johnson. Mr. Johnson 

also testified and the court found that the water would back 

up toward Mr. Warner's property, but not enough to be 
significant. A civil engineer testified, and the court 

found, that it was necessary to block the creek to get a 

water flow into Pond 3 and that if the boards were removed, 

the flow through the pipes reversed and the pond began to 

drain. The court found that the area in which water spots 

occur "is a hundred yards or more from the Warners' residence 

and maintained grounds." The court concluded that the consequences of the actions necessary to maintain an adequate 

water level in Pond 3 is "slight leakage at the joints of the 

underground culvert and small wet spots on the surface of 

defendants' property," and that " [t] hese wet spots are not 

significant, do not interfere with defendant's use of his 

property and may, in time, disappear." 

After reviewing the record, we conclude that the District Court's findings are supported by the testimony presented. Findings supported by substantial evidence will not 

be overturned. The District Court's conclusions as to the 

insignificance of the wet spots are not clearly erroneous, 

based upon the record. We hold that the District Court did 

not err in denying Mr. Warner injunctive relief. 

Did the District Court err in assessing costs against 

Mr. Warner? 

Mr. Warner maintains that under State ex rel. , Foss v. 

District Court (Mont. 1985), 701 P.2d 342, 42 St.Rep. 845, 

costs should be taken out of the fine levied against the 

contemnor. He states that the $500 fine should be a part of, 

not in addition to, the $1,566.15 in costs awarded to the 

Walkers. Actually, the statement in Foss is that costs 

allowed in the court's discretion under § 25-10-103, MCA, are 

limited to those which can be taken out of the fine levied 

against the contemnor. Foss, 701 P.2d at 346. As the Walkers correctly point out, costs could be awarded to them under 
either 5 25-10-103, MCA, or under S 25-10-101(6), MCA, because this was an action for an injunction. The District 

Court's order does not state under which statute it took its 

authority to award costs. We must assume that the court 

correctly took its authority and calculated the judgment 

amount under 5 25-10-101 (6), MCA. 

The Walkers ask that they be awarded their costs and 

attorney fees incurred on appeal. Costs on appeal of a civil 

case are automatically awarded to the successful party under 

Rule 33, M.R.App.Civ.P. The Walkers assert that they are 

entitled to their attorney fees under 5 70-17-112(2), MCA, 

because this is an action to stop an encroachment on an 

easement. They also maintain that they are entitled to 

attorney fees under a provision in the subdivision's protective covenants. That provision provides for attorney fees in 

successful actions to enforce the covenants. 

The District Court did not conclude that Mr. Warner's 

actions constituted an encroachment on an easement or a 

violation of the restrictive covenants. The problems with 

the ponds would be best resolved if the parties ironed out 

their differences in a spirit of cooperation among themselves, rather than resorting to litigation. Costs on appeal 

are awarded to the Walkers, and each party shall pay its own 

attorney fees. 

Affirmed.