Granite Ditch Co. v. Anderson, 82-233

• Decision Date: 05 May 1983
• Docket Number: No. 82-233,82-233
• Citation: 662 P.2d 1312,204 Mont. 10,40 St.Rep. 630
• Parties: GRANITE DITCH CO., et al., Plaintiffs, v. William ANDERSON, et al., Defendants. Charles DESCHEEMAEKER, George W. Gauger and Will G. Metz, Jr., Petitioners and Respondents, v. Larry PIHLAJA, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1312

662 P.2d 1312

204 Mont. 10

GRANITE DITCH CO., et al., Plaintiffs, v. William ANDERSON, et al., Defendants.

Charles DESCHEEMAEKER, George W. Gauger and Will G. Metz, Jr., Petitioners and Respondents, v. Larry PIHLAJA, Respondent and Appellant.

No. 82-233.

Supreme Court of Montana.

Submitted Jan. 14, 1983.

Decided May 5, 1983.

Anderson, Brown, Gerbase, Cebull & Jones, Andrew J. Lensink, Billings, for respondent and appellant.

Ayers & Alterowitz, Arthur W. Ayers, Jr., Red Lodge, for petitioners and respondents.

Donald D. MacIntyre, Dept. of Natural Resources, Helena, for amicus curiae.

MORRISON, Justice.

This action was instituted in the District Court of the Thirteenth Judicial District of the State of Montana, County of Carbon, requesting the District Court to amend a water rights decree entered in 1970 and to declare petitioners' water rights senior to those of respondent, here the appellant. On December 16, 1981, the District Court entered its order "clarifying" the decree entered in 1970. The effect of the court's order was to find the waters of Clear Creek to be part of the Rock Creek system, declare the rights of petitioners in Rock Creek water to be senior to the rights of appellant, and require appellant to allow Clear Creek water to flow into Rock Creek so that petitioners' rights could be satisfied before appellant's rights were exercised. Appellant appeals from that order. We affirm.

The appellant is owner of water rights in Clear Creek, the earliest right dating to 1910. Petitioners have water rights in Rock Creek, dating to 1896 which were decreed in Granite Ditch Co., et al., v. William Anderson, et al., Cause No. 275 (Thirteenth Judicial District Court, Carbon County, August 21, 1903.) Clear Creek is a tributary of Rock Creek.

Appellant had obtained a court order issued February 17, 1970, without notice, directing the Rock Creek water commissioner to "carry out" the Clear Creek water rights of appellant "in accordance with the filing thereof, contingent on water being available for said filings and subject to hearing objections of any party contending to be injured thereby." The involvement of the water commissioner of Rock Creek stemmed from the fact that the Clear Creek water rights were diverted at or near the mouth or outlet of Clear Creek into Rock Creek, and then carried in the natural course of Rock Creek for approximately one and a half miles to the headgate of the High Line Ditch Company, where the water was again diverted and carried in the High Line Ditch Company ditch to the land of appellant for irrigation usage.

As a consequence of the court permission granted February 17, 1970, the water commissioner has honored in full the requests of appellant for water without regard to any priority in the relationship of Clear Creek water rights to Rock Creek water rights. The result is that in times of water shortage senior Rock Creek decreed water rights are cut off, while appellant continues to receive water under his junior Clear Creek appropriated water rights. This circumstance became known to Rock Creek water users in 1977 for the first time, and three of them filed the petition which is the basis for the instant action seeking to have the 1970 court order rescinded and, in effect, direct the water commissioner to subject the Clear Creek water rights of appellant to the priorities of Rock Creek water rights.

The following issues are presented for review:

1. Whether the appeal should be dismissed because notice of appeal was not timely filed?

2. Whether the District Court had jurisdiction under sections 3-7-213, 3-7-501, MCA, to hear the petition regarding the administration of water right priorities on Clear Creek and Rock Creek?

3. Whether the failure to join other owners of water rights on Clear Creek requires remand of this cause for joinder, or alternately dismissal under Rule 19, M.R.Civ.P.?

4. Whether the District Court's order is contrary to Montana law?

5. Whether the District Court's order violates due process rights of appellant and other Clear Creek water right owners?

6. Whether the District Court's order denies appellant equal protection of the laws?

We hereafter treat issues one and two separately and consolidate issues three through six.

ISSUE 1--WHETHER THE APPEAL SHOULD BE DISMISSED BECAUSE NOTICE OF APPEAL WAS NOT TIMELY FILED?

Respondents contend that appellant's notice of appeal, filed April 1, 1982, was not timely and therefore this appeal should be dismissed. The premise underlying respondents' position is that the order entered by the District Court on December 17, 1981, constituted a final order, from which date timeliness of appeal under Rule 5, M.R.App.Civ.P., must be determined. Respondents further maintain that appellant's "Motion for Clarification", filed January 19, 1982, does not suspend the running of time for filing notice of appeal because Rule 5, M.R.App.Civ.P., specifically limits suspension to motions timely filed pursuant to Rules 50(b) [motion for judgment notwithstanding verdict], 52(b) [motion for amendment of or addition to findings of fact], or 59 [motion for new trial], M.R.Civ.P.

Respondents' argument is not well taken. Absent an express determination that there is no just reason for delay and certification as final judgment, an order adjudicating the rights and liabilities of less than all parties is not appealable. Rule 54(b), M.R.Civ.P.; Benders v. Stratton (1982) Mont., 655 P.2d 989, 39 St.Rep. 2389. The December 17, 1981 order which determined only the rights of the appellant vis-a-vis those of respondents was not certified by the District Court as a final judgment. Therefore, this cause was not ripe for appeal until March 4, 1982 when the interests of all parties, including an intervenor, were finally determined.

Furthermore, under Rule 5, M.R.App.Civ.P., the thirty day period for filing of notice of appeal does not commence to run until the clerk of court properly serves notice of entry of judgment as required by Rule 77(d), M.R.Civ.P. Pierce Packing Co. v. District Court of the Thirteenth Judicial District (1978), 177 Mont. 50, 579 P.2d 760. Because here the clerk of the District Court did not serve notice of entry of judgment upon the parties, respondents beg the question by asserting that the thirty day period provided under Rule 5, M.R.App.Civ.P., has expired, when it has not yet commenced. Cf. Rex v. Rex (1982), Mont., 649 P.2d 460, 39 St.Rep. 1432, where there was neither a final judgment nor service of notice of entry of judgment and the combined factors constituted a jurisdictional defect.

We hold that the notice of appeal was timely made and proceed to examine the substantive issues raised herein.

ISSUE 2--DID THE DISTRICT COURT HAVE JURISDICTION TO HEAR THIS MATTER?

Appellant argues exclusive jurisdiction to resolve water disputes lies with the duly elected water judge of the water division in which the waterways are located pursuant to sections 3-7-101, 102, and 3-7-501, MCA, which provide in pertinent part as follows:

"3-7-101. Water divisions. To adjudicate existing water rights water divisions are established as defined in 3-7-102. A water division shall be presided over by a water judge."

"3-7-102. Water divisions boundaries. There are four water divisions whose boundaries are formed by the natural divides between drainages and the borders of the state of Montana and which are described as follows:

(1) The Yellowstone River Basin water division consists of those areas drained by the Yellowstone and Little Missouri Rivers and any remaining areas in Carter County ..."

"3-7-501. Jurisdiction. (1) The jurisdiction of each judicial district concerning the determination and interpretation of existing water rights is exercised exclusively by it through the water division or water divisions that contain the judicial district wholly or partly.

(2) No water judge may preside over matters concerning the determination and interpretation of existing water rights beyond the boundaries specified in 3-7-102 for his division except as provided in 3-7-201 and 3-7-213.

(3) The water judge for each division shall exercise jurisdiction over all matters concerning the determination and interpretation of existing water rights within his division as specified in 3-7-102 that are considered filed in or transferred to a judicial district wholly or partly within the division."

After the instant action was filed on May 12, 1977, District Judge Jack D. Shanstrom, acting as water judge, designated the presiding judge of the Thirteenth Judicial District, Judge Charles Luedke, to be the water judge for purposes of presiding over the proceedings here at issue. The appellant contends that Judge Luedke was without jurisdiction because the water judge did not comply with statutory requirements for designating an alternate judge to serve as water judge. Appellant relies upon section 3-7-213, MCA, which provides:

"3-7-213. Designation of alternate judge. The water judge may designate any other district judge or retired district judge to preside in his absence on his behalf as water judge for the immediate enforcement of an existing decree or the immediate granting of extraordinary relief as may be provided for by law upon an allegation of irreparable harm."

Appellant contends the requirements of section 3-7-213, MCA, have not been met and that Judge Luedke did not have jurisdiction. We find such argument to not be dispositive of the issue.

Section 3-7-501(2), MCA, hereinbefore set forth, provides that no water judge may preside over matters beyond the boundaries of his water division. The apparent purpose of the statute is to recognize the parochial nature of water usage and assure that water judges are conversant with the history of water usage when making water adjudications. The provisions of section 3-7-213, MCA, governing designation of an alternate judge, must be interpreted in conjunction with the...