No. 94-165 

IN SUPREME COURT OF THE STATE OF MONTANA 

1994 

JEFF and NANCY ROE, 

Plaintiffs and Appellants, 

CORBIN WATER USERS' ASSOCIATION, 

Defendant and Respondent. 

APPEAL District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. ~avik, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Linda J. Garofola, Reynolds, Motl, Sherwood 

and Wright, Helena, Montana 

For Respondent: 

Harold H. Harrison, Harrison and Murphy, 

Helena, Montana 
Justice Terry N. Trieweiler delivered the opinion of the Court.

Appellants Jeff and Nancy Roe filed a complaint on July 29,

1992, and amended their complaint on March 3, 1993, in the Fifth

Judicial District Court in Jefferson County, requesting permanent

and temporary access to water from the Corbin Water System for both

of their properties. On August 3, 1993, the District Court granted

respondent Corbin Water User's Association's (CWUA), motion for

summary judgment. The Roes appeal. We reverse.

The following issue is dispositive on appeal:

Did the District Court err when it granted CWUA's motion for

summary judgment?

FACTUAL BACKGROUND

The Roes reside on and own two adjacent lots in Corbin,

Montana. They have a home on one lot and a trailer on the

adjoining lot, which they lived in while they renovated their home.

Due to water pollution caused by local hard rock mining operations,

the public drinking water in Corbin became contaminated, forcing

the Department of State Lands to install a new water system. When

this new water system was installed, the Roes were left out of the

group of persons designated to receive water from the new system,

but were later included.

CWUA, a non-profit Montana Corporation, operates the new water

system and has a duty to furnish water to its members and to other

users according to its by-laws. CWUA approved installation of the

Roes' two water lines, but has only allowed them to use one water

line.

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CWDA's by-laws state, among other things, that "each dwelling

constitutes one (1) membership and one (1) hookup . . . ."

Dwelling is not defined and there does not appear to be a specific

limitation of one hookup per dwelling. The by-laws also state, in

Article 7, Section 1, that a membership in CWDA may be transferred.

Montana Mining owns a water hookup that is not in use at the

present time, and had agreed to transfer it to the Roes. However,

CWUA refused to allow this transfer, stating that its by-laws

require approval by all of its members to transfer an unused water

hookup. CWDA also stated that its by-laws authorize only one

hookup per person. However, there are other individual members of

CWUA who have more than one water hookup.

On July 29, 1992, the Roes filed their complaint alleging that

CWtJA's actions: breached its by-laws; constituted negligence; and

that these actions breached a fiduciary duty owed to all of its

members, including the Roes. In their complaint, the Roes

requested permanent and temporary relief, which included access to

the Corbin water system for both of their properties. On August 5,

1992, CWDA filed a motion for summary judgment in which it alleged

that there was no genuine issue of material fact and that it was

entitled to judgment as a matter of law.

On March 3, 1993, the Roes filed an amended complaint adding

the Department of State Lands as a defendant. (The Roes later

dismissed the Department of State Lands from their lawsuit). CWUA

then filed a motion to strike. The District Court, during a

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telephonic pretrial conference, advised the parties that both

pending motions were dismissed.

On July 15, 1993, CWUA filed a second motion for summary

judgment. On August 3, 1993, the District Court granted CWUA's

motion.

DISCUSSION

Did the District Court err when it granted CWUA's motion for

summary judgment?

The standard of review of a district court's summary judgment

ruling is identical to that of a trial court's. It is a de novo

review. Cooper% SistersofCharity (Mont. 1994), 875 P.2d 352, 353, 51

St. Rep. 484, 485 (citing Minnie v. City of Roundup (1993), 257 Mont.

429, 431, 849 P.2d 212, 214). We have held that "[s]ummary

judgment is proper only when no genuine issue of material fact

exists and the moving party is entitled to a judgment as a matter

of law. Rule 56(c), M.R.Civ.P." Spain-Morrow Ranch, Inc. v. West (Mont.

1994), 872 P.2d 330, 331-32, 51 St. Rep. 363, 364.

In its order granting CWUA's motion for summary judgment, the

District Court stated that CWUA complied with its by-laws and that:

The original by-laws, contained no specific restrictions

on the simultaneous use of double hook-ups by a single

member or the transfer of memberships. This does not

mean, however, that the Association did not have the

discretion or authority to restrict simultaneous use or

transfers of membership.

We conclude, however, that the District Court improperly

decided disputed issues of fact.

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CWUA's present by-laws, enacted in 1990, allow for memberships

in the CWUA to be transferred. Article 9, Section 1, of CWUA's

by-laws states that "[t]he membership shall be transferable, in the

event of an increase in membership fees, and the recipient will pay

the difference."

CWUA argues that even though its memberships are transferable,

it has the right to limit the total number of hookups and to

require 100 percent member approval of new hookups. Thus, CWUA

argues that it can require the Roes to obtain the approval of CWUA

members for the hookup to the Roes' second lot.

It appears, however, that CWUA has overlooked important

language in its own by-laws which state that the 100 percent vote

of the members is required for a new service hookup, not for the

transfer of unused hookups. Article 7, Section 4, of CWUA's

by-laws discusses water and hookup limits. This section states in

part that:

The Association limits the total number of hook-ups to

the system not to exceed the existing original seventeen

(17) hook-ups. If any unused hook-ups are put into

service, the service dues will be due in advance in a

semi annual or annual payment, which is the present

method of payment. Any new service or hook-up by the

Association may only be added with a 100 (one hundred)

percent of the vote of the members.

CWUA refers to the Roes' request for a second hookup as a new

hookup. This is inaccurate. The hookup that the Roes requested

involves an unused hookup which would be transferred to them from

Montana Mines--not a new hookup. According to the by-laws, it

should be put into service after the Roes pay service dues. An

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unused, transferred hookup does not require authorization of 100

percent of CWDA's members.

However, there remain factual issues regarding what

constitutes a dwelling and whether there is any specific limitation

on the number of hookups per dwelling. Therefore, there appear to

be genuine issues of material fact, and CWKJA, as the moving party,

is not entitled to judgment as a matter of law. As we stated in

Edgewater Town House Home Owners Assln v. Holtman (1993), 256 Mont. 182,

185, 845 P.2d 1224, 1226, "[slummary judgment was not intended, nor

can it be used, as a substitute for existing methods in the trial

of issues of fact." (Citing Hull v. D. Irvin Transport Ltd. (1984), 213

Mont. 75, 81, 690 P.2d 414, 417.)

We conclude that the District Court erred in granting summary

judgment.

The judgment of the District Court is reversed and this case

is remanded for further proceedings consistent with this opinion.

We concur