                                      No. 86-454
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1987


BERNIE A. SWIFT, pro se spokesman;
CHARLES F. TREECE, pro se; MAY VALLANCE,
pro se; ADELBERT E. REYNOLDS, pro se;
ELLA SHARP, pro se; VICTOR H. WARNER,
pro se; and DEAN L. WALROD, pro se,
                       Plaintiffs and Appellants,
          -vs-
STATE OF MONTANA, DEPARTMENT OF NATURAL
RESOURCES & CONSERVATION, and DALY DITCHES
IRRIGATION DISTRICT,
                       Defendants and Respondents.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and for the County of Ravalli,
                       The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
          For Appellant:
                       Judith A. Loring, Hamilton, Montana
          For Respondent :
                       Loble & Pauly; Lester H. Loble, 11, Helena, Montana
                       Larry Persson, Hamilton, Montana


                                         Submitted on Briefs: Feb. 13, 1987
                                          Decided:    April 21, 1987
         &PI; 2    .,
                   -
                        r


Filed:

                                                      e

                                        Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      Appellants appeal an order of the District Court of the
Fourth Judicial District in and for Ravalli County, Montana,
dismissing with prejudice a complaint filed in that court.
We affirm.
      The pertinent facts are those in In re Petition for
Organization and Establishment of an Irrigation District in
Ravalli County (Mont. 1984), 680 P.2d 944, 41 St.Rep. 658,
the Daly Ditch case. Briefly, at the turn of the century the
Ravalli Land and Irrigation Company included water users who
had rights to use water from the Bitterroot River and users
with rights to use water from Skalkaho Creek. Water from the
river is diverted primarily by way of the Republican Ditch
and the Hedge Ditch, both of which cross Skalkaho Creek.
Because of geography it is impossible to irrigate certain
lands with water from the ditches. The owners of land below
the ditches who owned rights to the use of Skalkaho Creek
water permitted a diversion of these waters to lands above
the ditches in exchange for the use of water from the
ditches.   A transfer of right, title and interest of the
Ravalli Land and Irrigation Company to the State Conservation
Board in 1942 continued this exchange.           The Montana
Department of Natural Resources and Conservation (DNRC) is
the successor to the State Water Conservation Board.
      Because of significant financial losses and the need
for extensive and costly repairs, the 1979 legislature
directed the DNRC to dispose of the project by sale or
abandonment.   See S 85-1-401 et.seq., MCA.    An action was
brought in the District Court to organize the Daly Ditches
Irrigation District (DDID) for the purpose of taking over
from DNRC operation and maintenance of the Daly Ditch
project. The DNRC had attempted unilaterally to revoke its
consent to the exchange agreements by sending letters of
cancellation and refused to deliver ditch water in exchange
for Skalkaho Creek water.
      In its order establishing the DDID, the District Court
found that certain Skalkaho Creek exchange water users had
been damaged by refusal of the DNRC to deliver water. The
District Court said:
           It is fair and equitable that the
           Skalkaho Creek     Exchange water user
           individuals having tenth or superior
           water rights will receive water from the
           Daly Ditch Water Project on the exchange
           basis and receive a credit against the
           cost allocable to them for the operation,
           maintenance,        replacement        or
           reconstruction of Republican or Hedge
           diversions as well as on account of the
           purchase of water from Painted Rock Water
           Project. This credit should exist for a
           fixed number of years.
We affirmed the District Court in the Daly Ditch case, supra,
and remanded to allow the District Court to determine the
rights of the parties or other interested persons.
      The District Court issued an order January 24, 1986,
which made a preliminary determination of those rights which
fell within the priorities one through ten and those rights
which fell within priorities eleven through seventeen. The
Court specifically advised anyone who had a disagreement with
its decision to present supporting evidence, and set a trial
date of April 1 and 2 for people owning rights one through
ten. Appellants filed a pro se complaint February 6, 1986,
which the District Court characterized as a collateral attack
on the Daly Ditch decision and an interlocutory appeal of the
April trial before the court announced its decision. On June
6 the court dismissed the complaint, with prejudice.      The
District Court's findings of fact, conclusions of law and
judgment relative to the April hearing were issued August 4,
1986. A notice of appeal to this Court was filed August 7.
The appeal is directed to the dismissal of the complaint and
not to the findings of the court relative to the April
hearing.
      The appellants state they filed their pro se complaint
in an attempt to invoke the lower court's jurisdiction to
hear and determine questions having to do with the continuing
validity of certain water exchange agreements. We agree with
the District Court that the complaint does not state a claim
upon which relief may be granted. It is a collateral attack
on the final judgment of the District Court establishing the
DDID.   This Court affirmed the District Court's decision in
the Daly Ditch case, which established the DDID.
      The general rule is that a judgment is not subject to
collateral attack where the court has jurisdiction of the
subject matter and of the parties.
           By 'collateral attack' is meant 'every
           proceeding in which the integrity of a
           judgment is challenged, except those made
           in the action wherein the judgment is
           rendered or by appeal, and &xcept suits
           brought to obtain decrees declaring
           judgments to be void - initio.'
                                ab           [Citing
           cases. ]
Daly Bank v. State (1957), 132 Mont. 387, 395, 318 P.2d 230,
236.    The court's jurisdiction is not questioned.      The
appellants did not oppose establishment of the District.
Insofar as paragraph one of the complaint is an attack (and
this is unclear) on the establishment of the District, such
an attack is a collateral attack on a final judgment and
cannot be heard.
      Appellants argue they should be permitted to amend
their complaint rather than having it dismissed with
prejudice.   We have long supported the general proposition
that claims ought to be decided on their merits.        See
Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 504 ~ . 2 d

      Appellants, however, have no complaint that has not
been adjudicated on its merits. This Court in the Daly Ditch
case found the DDID had an obligation to provide substitute
water to the exchange water users. The District was required
to take any exchange water user who joined. It was required
to give a credit to all exchange water users who had priority
rights one through ten for as long as they remained members
of DDID.   The rights of the exchange water users to obtain
water on a basis that would take into account the use by the
District of their appurtenant rights in the Skalkaho were
recognized by granting them a credit if they joined the
District. However, they will not receive use of the water on
a cost free delivery basis. Those who chose not to join the
DDID nonetheless retain all legal and equitable remedies to
preserve their rights.
      If appellants' intent was to challenge these items,
they are barred by the doctrine of res judicata.
           The criteria to be used in determining
           whether an action is barred by -      res
           judicata are . . .
           (1) the parties or their privies must be
           the same; (2) the subject-matter of the
           action must be the same; (3) the issues
           must be the same, and must relate to the
           same    subject-matter;   and   (4)  the
           capacities of the persons must be the
           same in reference to the subject-matter
           and to the issues between them.
Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 ~ . 2 d
929, 931. All four criteria are met. The parties, appellant
exchange water users, the DNRC and the DDID are the same here
as in the Daly Ditch case; the subject matter, the right to
receive exchange water, is the same. The issue in both cases
is the credit to be received by holders of Skalkaho Creek
water rights junior to the tenth right. The capacities of
the parties are the same in reference to the subject matter
and the issues.
      Appellants could not at the time their complaint was
filed be heard to complain that they "[were] and will
continue to be      impacted and damaged by virtue of
establishment of Daly Ditches Irrigation District System
encroaching upon and interfering with our decreed Skalkaho
Creek water rights," because those rights had not been
interfered with. If it were appellants1 intent to challenge
the District Court's determination of rights to certain
credits the Complaint is an interlocutory appeal, and thus
fails to state a claim on which relief may be granted.
      The Order dismissing the Complaint with prejudice does
not affect appellants' water rights. Neither does it deprive
them of an appeal of the decision issued by the District
Court August 4. Appellants are not left without opportunity
for further judicial relief.
       In its Order dismissing the Complaint, the District
Court also found dismissal was warranted because appellant
Bernie Swift was practicing law without a license. We agree.
Because Bernie Swift is not licensed to practice law in
Montana he cannot act as spokesman for others before the
court.                                          /
      The order of the District Court is aff:
