Luppold v. Lewis
| Decision Date | 13 April 1977 |
| Docket Number | No. 13261,13261 |
| Citation | 172 Mont. 280,34 St.Rep. 227,563 P.2d 538 |
| Parties | William LUPPOLD, Plaintiff and Respondent, v. Len LEWIS et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Patrick F. Hooks, Townsend, Loble, Picotte & Pauly, C. Bruce Loble (argued), Henry Loble (argued), Helena, for appellants.
John V. Potter, Jr. (argued), White Sulphur Springs, Moore, Rice & O'Connell, Perry J. Moore (argued), Bozeman, for respondent.
This is an appeal from findings of fact and conclusions of law of the district court, Meagher County, interpreting an 1890 water rights decree, pursuant to section 89-1015, R.C.M.1947. This cause is entitled with the names of the parties to the original action, whereas the actual parties to this appeal are Gertrude McStravick and Fred Buckingham, as respondents, and Ward Paper Box Company, as appellant. Appellant's and respondents' predecessors in interest were parties to the 1890 adjudication, wherein they received the following rights:
Party Priority of Right Total Inches
----- ----------------- ------------
McStravick 1 60
Buckingham 20, 21 500
Ward Paper Box Co. 9, 10, 11, 15, 18, 1,035
24, 26, 28, 29
During the 1973 irrigation season a controversy arose between respondents and appellant as to whether Four Mile Creek was adjudged in the 1890 decree in question. Respondents contend that Four Mile Creek was adjudged in the 1890 decree, specifically appellant's water right 29. Appellant, on the other hand, claimed Four Mile Creek was not adjudged in the 1890 decree, but only the North Fork of the Smith River and those tributaries specified in the decree, and the water commissioner appointed to administer the decree had no authority on Four Mile Creek. Consequently, the water commissioner did not administer the waters of Four Mile Creek during the 1973 irrigation season.
It is agreed the 1890 decree was an adjudication of the North Fork of the Smith River. However, the decree referred to 'waters of the Smith River', 'water of the North Fork of Smith River', and 'waters of' certain named tributaries of the North Fork of the Smith River.
The North Fork of Smith River is that portion of the Smith River which lies entirely within the present boundaries of Meagher County from its headwaters to its confluence with the South Fork of Smith River in Section 21, Township 9 North, Range 6 East, M.P.M., Meagher County. Four Mile Creek is a stream located in Meagher County which flows into the North Fork of Smith River in the spring of the year when the waters are unimpeded and uninterrupted.
On April 23, 1974, respondents filed a petition for clarification of water right decree. This was subsequently dismissed, without prejudice, for failure to join the Montana Department of Natural Resources and Conservation as a party and serve notice thereon, as required by section 89-896(4), R.C.M.1947. On June 25, 1974, respondents filed a petition and complaint of dissatisfied water users. The district court, sitting without a jury, found Four Mile Creek was adjudged in the 1890 decree. The water commissioner was instructed to administer and distribute the water of Four Mile Creek in accordance with the 1890 decree during those times of the year that such waters would, if uninterrupted and unimpeded, reach the North Fork of Smith River and contribute to its flow.
When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. Compton v. Alcorn, Mont., 557 P.2d 292 (1976); Brady v. State Highway Comm'n, 163 Mont. 416, 517 P.2d 738; Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. Morgan Electric Co., 152 Mont. 126, 448 P.2d 683. When reviewing evidence it will be viewed in the light most favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial. Johnson v. Johnson, Mont., 560 P.2d 1331; Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 507 P.2d 523; Strong v. Williams, 154 Mont. 65, 460 P.2d 90; Eliason v. Eliason, 151 Mont. 409, 443 P.2d 884.
Appellant's fifteen specifications of error fall into three general categories: (1) Procedural issues. (2) Substantive issues relating to the jurisdiction of the district court pursuant to section 89-1015, R.C.M.1947. And, (3) Substantive issues not related to the jurisdictional question.
1. The first procedural issue is whether respondents had standing to pursue an action under section 89-1015. Appellant contends that neither respondent had standing, since the water commissioner's 1973 records reported (1) McStravick received all of her decreed water, (2) Buckingham did not show a beneficial need and use for the additional water he was entitled to, and (3) neither respondent sought additional water from upstream users, allegedly receiving excess water.
Section 89-1015, R.C.M.1947, states, in part:
'Any person owning or using any of the waters of such stream or ditch or extension of ditch, who is dissatisfied with the method of distribution of the waters of such stream or ditch by such water commissioner or water commissioners, and who claims to be entitled to more water than he is receiving, or is entitled to a right prior to that allowed him by such water commissioner or water commissioners, may file his written complaint, duly verified, setting forth the facts of such claim. * * *' (Emphasis supplied.)
A careful reading indicates there are two means to achieve standing: First the user is dissatisfied with the method of distribution by the water commissioner and claims to be entitled to more water than he is receiving, or second the user is dissatisfied with the method of distribution by the water commissioner and is entitled to a right prior to that allowed him by such water commissioner.
The district court found the first to be controlling in finding the respondents did not receive the amount of water they were entitled to under the 1890 decree during the 1973 irrigating season. There is substantial evidence in the record to support this finding and it will not be disturbed on appeal.
Respondent McStravick repeatedly testified she was dissatisfied with the distribution of water during the 1973 season, that this dissatisfaction was the extreme shortage of water which caused a reduction in the hay crop as compared to previous years. Elmer Hanson, a leaseholder of McStravick, testified water was very low and only intermittently available during 1973; and that this condition was present during the months of May and June, when Four Mile Creek would reach the North Fork of Smith River if uninterrupted and unimpeded. Rick Buckingham testified the water was low in 1973 and he was present when his father confronted the water commissioner about this shortage.
The district court was presented with conflicting testimony. The water commissioner's records, which are the basis for payment of his services, reflected that respondents received their decreed water. Respondents and Elmer Hanson on the other hand disputed these records, as can clearly be noted from Hanson's testimony he believed the records to be incorrect. The weight assigned to testimony is for the district court's determination, and such will not be disturbed on appeal.
The next procedural issue is whether the district court failed to direct notice to be given to all necessary parties. Appellant relies on State ex rel. McKnight v. District Court, 111 Mont. 520, 111 P.2d 292, for the proposition that all users and owners under the prior decree must be given notice. We do not agree. If such were the case, section 89-1015, R.C.M.1947, would have so stated. Section 89-1015 states, in part:
'* * * Thereupon the judge shall fix a time for the hearing of such petition, and shall direct that such notice be given to the parties interested in such hearing as the judge may deem necessary. * * *'
This discretion given to the district judge is not absolute and McKnight so held. However, McKnight does not stand for appellant's broad statement of law. McKnight involved a section 89-1015 action where notice was only served upon the water commissioner, and no water users or owners were served with notice nor made parties to the action. The district court then held that one water user's rights pursuant to one decree were subordinate to a second decree, which was not binding upon that user. This Court held that such a determination of rights was a denial of due process and notice should have been given to the water user. We find no such prejudicial abuse of discretion in the instant case. Notice was given to appellant because it questioned the water commissioner's authority on Four Mile Creek; to the water commissioner; and to the Montana Department of Natural Resources and Conservation, which was also made party to the action, pursuant to the district court's order of June 24, 1974. Notice was not given to any of the other water users, however they did not question the water commissioner's authority on Four Mile Creek, nor were their rights adversely affected, as in McKnight.
The final procedural issue is whether the action pursuant to section 89-1015 was improperly allowed because the water commissioner did not post a sufficient bond, and his 1973 term had expired prior to the start of this action. We hold the action was proper.
The district court is given discretion to fix the sum of the water commissioner's bond. Section 89-1003, R.C.M.1947. Appellant cites authority which involves public officials who posted no bond. Here, the water commissioner did post a one dollar bond, as fixed by ...
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