No. 13623 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

VIOLET SIMMONS, 

Plaintiff and Appellant, 

-vsCITY OF GLENDIVE, MONTANA, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Seventh Judicial 

District, 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

Calton and Stephens, Billings, Montana 

Robert L. Stephens argued, Billings, Montana 

For Respondents: 

Richard A. :SZmonton argued, Glendive, Montana 

Jerry D. Cook, Glendive, Montana 

-- 

Submitted: September 21, 1977 

Filed: ULL 'Tf' *! , 

2 qv 13 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Plaintiff Violet Simmons appeals from a judgment entered 

in the District Court, Dawson County, in favor of defendants the 

City of Glendive, Montana, and several of its officials. 

Plaintiff brought this action in 1971, seeking damages for 

alleged wrongful and illegal termination of water services to 

property she owned in Glendive. At that time the City of 

Glendive operated a city water system and supplied and distributed 

water services to residents within the city. On April 12, 1976, 

following trial before the court without a jury, the District 

Court entered findings of fact and conclusions of law in favor 

of defendants, hereinafter referred to as the City. Plaintiff 

moved to set aside the findings and conclusions or alternatively, 

for a new trial. These motions were denied. Judgment was 

entered against plaintiff. This appeal followed. 

In 1958, plaintiff began building a structure at the rear of 

a lot she owned in Glendive. On the front portion of this lot 

was a four-plex apartment building owned by plaintiff comprising 

Nos. 314, 314 112, 316 and 316 112 West Brennan Street. The 

structure at the rear of this lot originally was to be a garage, 

but at some point during its construction plaintiff decided to 

make it a residence. Water and sewer lines were placed between 

the City's main line and this structure just after construction 

started..The lines were hooked up and the water service became 

operative some years later when the structure was first used as 

a home. Plaintiff thought the house was receiving water from the 

metered line running into the four-plex- when, in fact, it was 

receiving unmetered water directly from the City's main line. 
In 1969 the City discovered the small house was receiving water 

not paid for, because it was not metered. The mayor then instructed 

the city meter man to inform plaintiff she was violating a city 

ordinance by receiving unmetered water, and to make arrangements 

for the installation of a water meter at the house. While there 

is a dispute in the testimony as to what occurred when the meter 

man attempted to install the meter, it is clear plaintiff refused 

installation when it was offered. 

Water service to the small house was cut off on the mayor's 

order when he learned plaintiff had refused to allow installation 

of the water meter. The City then prepared a bill for the water 

plaintiff had received at the house. It determined water service 

had been supplied, but not paid for, from September 30, 1959 

to May 26, 1969. 

Plaintiff refused to pay this bill claiming she received 

water at the small house for only 7 years, rather than the nearly 

10 years for which she was billed. Plaintiff remained in the 

house after the termination of its water service. She testified 

that for a year and a half she hand carried water to the small 

house from the four-plex. Ultimately, plaintiff attached a hose 

to an outside spigot of the four-plex, and supplied water to the 

small house by means of this hose. She used the hose to provide 

water to her house at various times for several months, beginning 

in the summer 1970. 

In October 1970, the City discovered plaintiff was supplying 

water to her house through the hose. On October 16, the City 

water clerk sent plaintiff a notice by certified mail that the 

use of the hose to supply water to her house was a violation of 

City ordinances and Public Service Commission regulations and water 
service to the four-plex would be terminated if the use of the 

hose was not discontinued by October 26, 1970. Plaintiff acknowledged receipt of this notice. The City later learned plaintiff 

was continuing to use the hose to supply water to her house, and 

on October 30, 1970, water service to the four-plex was terminated 

by the City. 

Tenants living in the four-plex moved out within a few 

days of the termination of its water services. Plaintiff retained a series of lawyers during the following months, but was 

unable to get water service restored to the four-plex. In the 

spring 1971, plaintiff discontinued heat and electricity at the 

four-plex; she testified that without rental income these utilities became too expensive to maintain. 

After 1971, plaintiff made no request to the City to restore 

water service to the four-plex. She testified that by then, 

the water pipes in the four-plex were damaged and without extensive repair could not carry water if it was restored. Plaintiff 

brought this action on April 28, 1971, seeking damages for lost 

rentals and various expenses she allegedly incurred as a consequence of the City's termination of water services to the fourplex. 

The issue on appeal is whether the evidence shows the City 

of Glendive, acting as a public utility, exceeded its lawful 

authority in terminating water services to plaintiff' s four-plex. 

Resolution of this question turns on the city's purpose in terminating the water services. 

Plaintiff contends the City turned off the water to the fourplex for the purpose of forcing her to pay the disputed bill for 

unmetered water supplied to her small house, and to induce her 

to install a meter there. 

While plaintiff testified she knew water service to the fourplex had been terminated because of her use of the hose to supply 

-4- 
water to the small house after the City had shut off the water to 

that structure, she also testified she was led to believe water 

service to the four-plex would be restored if she paid the disputed bill. This information allegedly was related to her at 

various times by attorneys she retained in the course of her 

efforts to have this service restored. Plaintiff also testified 

the mayor told her directly that she would have to pay the bill 

to get the water turned back on at the four-plex. Further, that 

the city water clerk told one of her attorneys, who in turn told 

plaintiff, that payment of the bill would result in restoration 

of service to the four-plex. Plaintiff argues that if the City 

would have restored water service to the four-plex upon payment 

of the disputed bill for water supplied to her small house, it 

follows the City shut. off water to the four-plex solely to 

force such payment. 

The City concedes it is without authority to terminate water 

services to a structure for the purpose of forcing the resolution 

of a collateral dispute not affecting the structure. It contends 

that the evidence here shows plaintiff's payment of the disputed 

bill was not a condition precedent to restoration of the four-plex's 

water, but that the service was terminated because plaintiff 

violated certain rules and regulations of the Public Service Commission and Glendive city ordinances by providing water to her house 

by means of the hose attached to the four-plex. 

The mayor testified that shortly after service to the fourplex was terminated, he spoke to plaintiff and informed her that 

if she reapplied for service to the four-plex and removed the 

hose between it and her house, the City would restore service. 

The city water clerk testified the mayor had not instructed him 

to require plaintiff to pay the disputed bill as a prerequisite 
to acceptance of any application plaintiff might make for 

restoration of service to the four-plex. The city public works 

director also testified stating that restoration of water service 

to the four-plex was conditioned only on lai in tiff's discontinuance of her use of the hose. 

The notice sent by the city water clerk to plaintiff two 

weeks before termination of service to the four-plex state. such 

termination would result, if plaintiff continued to supply water 

to 

to her house by means of the hose connected/the four-plex. There 

is no mention in this notice of the disputed bill, and no indication that plaintiff's failure to pay it would trigger the shutoff 

of water to the four-plex. 

The October 16 notice stated that plaintiff was violating 

regulations of the Montana Public Service Commission and a City 

Code by supplying water to her house with the hose from the 

four-plex. The relevant rules and regulations of the City of 

Glendive Water Company, approved by the Public Service Commission 

of Montana, admitted into evidence and applicable at the time 

pertinent provided: 

"Rule G-1. * * * Service will be furnished to any 

consumer who fully and truly sets forth all the 

purposes for which water may be required and who 

agrees to and conforms with all rules and regulations governing the service * * *.I1 

"Rule G-5. No plumber or other person will be 

allowed to make connection with any conduit, pipe 

or other fixture connecting therewith or to connect 

pipes when they have been disconnected, or to turn 

water off or on, on any premises, without permission 

from the [water] company .I1 
"~ule G-6. Service pipes shall be so arranged 

that the supply of each separate building, house or 

premises may be controlled by a separate curb cock, 

placed within or near the line of the street curb, 

under rules established by the Water Company or civil 

authorities, This curb cock and box must be kept in 

repair and easily accessible by the owner of the premises." 

"Rule G-12. For violation of any of these rules, or 

for nonpayment of water rent, for either domestic, 

sprinkling or other purposes, the company has the 

right to turn off the water without further notice * * *.If 

"Rule G-13, The foregoing general rules shall be 

effective for all water utilities operating in 

Montana. * * * 

"In addition to the general flat rate and meter 

rate rules, a utility may adopt, subject to the approval 

of the Public Service Commission, other rules to be 

designated as special rules, to fit local conditions. 

In case of any apparent conflict in the rules, the 

general rules shall govern." 

"Rule M-9. In no case will the company furnish water 

from one meter to two or more houses, whether the same 

are owned by one person or not. 11 

Glendive City Ordinance Number 418, enacted in 1928, 

provides in part: 

I I Sec. 2. No plumber or other person will be 

allowed to make connections with any conduit, pipe, 

or other fixture connecting therewith, or connect 

pipes when they have been disconnected, or to turn 

water off or on, on any premises without permission 

of the water department. 

I1 Sec. 3. Service pipes shall be so arranged that 

the supply for each separate building or house may 

be controlled by a separate curb box placed at the 

out side of the sidewalk. * * *.I1 

Having heard the conflicting testimony as to the City's 

purpose in terminating service to the four-plex, the District 

Court found the city's action was not taken to force payment of 

the disputed bill. Rather, the action was taken to discourage 

plaintiff from continuing the practice of supplying water to the 
small house from the four-plex, a practice prohibited by 

the quoted rules and regulations and city ordinance. 

In City of Missoula v. Rose, 164 Mont. 90, 92, 519 P.2d 

146 (1974), this Court stated: 

"We have consistently held that this Court cannot 

substitute its weighing of the evidence for that of 

the trial court. When there is a conflict in the 

evidence, the findings of the trial court are presumed 

to be correct if supported by the evidence most favorable 

to the prevailing party. * * * The fact that there was 

a conflict in the testimony does not justify a reversal 

where there is sufficient evidence to support the trial 

court's findings of fact." 

There was sufficient evidence upon which the District Court could 

base its finding that termination of water services to plaintiff's 

four-plex was not for the purpose of forcing the payment of the 

bill for water previously supplied to the small house. 

We note plaintiff challenged neither the rules and regulations nor their effect on her use of a hose to supply water 

metered at one residence, to another unmetered residence. While 

a utility may enforce reasonable regulations by terminating 

service to a consumer who violates such regulations, termination 

should not be seen as a necessarily proper response in every case. 

When there are less drastic remedies available, such as injunctive or other relief, termination will not be favored. 

For the reasons set forth herein, the judgment in the instant 

case is affirmed. 
We Concur: 

Justices.