No. 87-111

INTHE SUPREMECOURT OF THE STATEOF MONTANA
1987

LAWRENCE E. WALKER and DARLENE E. WALKER, PlaintiffsandAppellants,-vsMAURICEA. WARNER,JR., Defendantand Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, Inand for the County of Gallatin, TheHonorable Thomas Olson, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Wellcome, Frost & Bartlett;AlbertA. Frost, Bozeman, Montana

For Respondent:
Robert Kolesar,Bozeman, Montana



## AUG1 9

## 1987 Filed: Submitted onBriefs: July 14, 1987 Decided: August 19, 1987Mr. JusticeFred J. Weber delivered the Opinion of the Court.

TheDistrict 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 findingMr. 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 againstMr. Warner? Mr. Warner also argues that the Walkers' notice of appealwas untimely filed. Since theWalkers' 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 leakageproblem inMr. Warner's basement. This became one subject of an action previously appealed to this Court. See Haugen Trust v. Warner (19831, 204Mont. 508, 

### 665 P.2d 1132. After that actionwas remanded toDistrict Court, the parties reached a settlement agreement whereby two of theponds would be filled in and Pond 3would be supplied with water and drainage through the use of culverts and pipes to be installed at shared expense. Specifically,the agreementprovided:

### 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 3by adjusting the inflowand outflow of saidpond.



### 7. All theparties agree to installa 12 inch underground pipe from Dry Creek along the path of theprevious ditch located on the north side of Lot 3 (Block9,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 flowofwater therein.

In a judgmentnunc pro tunc, the court ordered the parties to complywith 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 "Haugenditch.

### " Because of a disagreement among the parties as to the necessary height of the exitpipe fromPond 3 to Pond 4,thepipewas lowered and then raised again. Then theWalkers 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 dividerbox. 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 spokewith 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 dividerbox,Mr. Warnerwould remove them. Mr. Warner's repeated removal of the boards led to this suit, in which hewas accused of contemptof court for refusing tohonor the Walkers' right to control thewater 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 injunctionprohibiting the Walkers from interferingwith 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 ditchwater to help fill the pond, notby any action ofMr. Warner's. I 

### Did the District Court err in finding Mr. Warner in contempt? Mr. Warner argues that the system ofpipes and culverts has engineering and operational shortcomings which became apparent shortly after installation. He asserts that he shouldnotbe held in contempt forhis efforts toprotecthis 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 "disobedienceof any lawful judgment, order, or process of the court." The District Court's judgmentnunc pro tunc requires the parties to abide by the settlement agreement, which allows the Walkers to control thepipeline system supplyingwater to Pond 3.

### Mr. Warner admitted at the hearing that he removed the boards the Walkers placed to control thewater 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 systemhas 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; controlwas clearly given to the Walkers. TheDistrictCourt entered extensive findings demonstrating that it had considered this issue in depth. We conclude that the District Courtdid noterr in findingMr. 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 ofwater causeswet spots on his property and constitutes a temporary continuing nuisance. He suggests that the water level in thepond 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 thepipe 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 properwater 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 fromblocking Dry Creek during November, December, January, and February. The courtdid 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 thebuilder of thewater system,Ray Johnson. Mr. Johnson also testified and the court found that thewater would back up toward Mr. Warner's property, but not enough to besignificant. 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 ormore from theWarners' 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 andmay, 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 evidencewill 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 indenying 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 apart 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 correctlypoint out,costs could be awarded to them undereither 

### 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 successfulparty 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. Thatprovision provides for attorney fees in successfulactions 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 shallpay its own attorney fees. Affirmed.