                                No. 87-111
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



LAWRENCE E. WALKER and DARLENE
E. WALKER,
                 Plaintiffs and Appellants,
         -vs-
MAURICE A. WARNER, JR.,
                 Defendant and Respondent.




APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Wellcome, Frost & Bartlett; Albert A. Frost,
                 Bozeman, Montana
         For Respondent:
                 Robert Kolesar, Bozeman, Montana



                                    Submitted on Briefs:   July 14, 1987
                                      Decided: August 19, 1987
         AUG 19 1987
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     The District Court for the Eighteenth Judicial District,
Gallatin County, found Mr. Warner in contempt of court for
failing to comply with a judgment ordering the parties to
abide by a settlement agreement. The agreement established
the Walkers' right to control the level of a pond which Mr.
Warner complained was causing flooding on his property. We
affirm.
     The issues are:
     1. Did the District Court err in finding Mr. Warner in
contempt?
     2. Did the District Court err in failing to grant Mr.
Warner injunctive relief?
     3. Did the District Court err in assessing costs
against Mr. Warner?
     Mr. Warner also argues that the Walkers' notice of
appeal was untimely filed. Since the Walkers' brief does not
raise any new issues on cross-appeal, that issue need not be
discussed.
     The Walkers and Mr. Warner are neighbors. Their subdi-
vision formerly included four ponds, for aesthetic purposes.
Water from the ponds caused a leakage problem in Mr. Warner's
basement.   This became one subject of an action previously
appealed to this Court.   See Haugen Trust v. Warner (19831,
204 Mont. 508, 665 P.2d 1132. After that action was remanded
to District Court, the parties reached a settlement agreement
whereby two of the ponds would be filled in and Pond 3 would
be supplied with water and drainage through the use of cul-
verts and pipes to be installed at shared expense. Specifi-
cally, the agreement provided:
          6. All the parties agree that a discharge
     culvert will be installed as the outlet from Pond
     Number 3 to Pond Number 4 (which is located north
     of Number 3).     Said culvert will be installed
     within the 10 foot easement as set forth in the
     covenants (Section 111, Subsection I) under the
     road known as Mallard Lane and will be the same
     size as the culvert currently used as the discharge
     culvert from Pond Number 3. Larry Walker shall be
     entitled to control the water level in Pond Number
     3 by adjusting the inflow and outflow of said pond.


          7. All the parties agree to install a 12 inch
     underground pipe from Dry Creek along the path of
     the previous ditch located on the north side of Lot
     3 (Block 9, Middle Creek Meadows Subdivision #3) to
     the existing concrete divider box, and from said
     divider to Pond #3 to serve as a water supply
     conduit.    Walker shall maintain said pipe and
     control the flow of water therein.
In a judgment nunc pro tunc, the court ordered the parties to
comply with the provisions of their agreement.
     The rerouting of waters through the pipe system was
completed. Some of the pipes lay under Mr. Warner's proper-
ty. The Walkers chose not to use additional water available
to supply the pond, from the "Haugen ditch. " Because of a
disagreement among the parties as to the necessary height of
the exit pipe from Pond 3 to Pond 4, the pipe was lowered and
then raised again. Then the Walkers determined that in order
to maintain adequate water depth in Pond 3, they needed to
partially block the flow of water to its other destinations
at the culvert where it was diverted from Dry Creek and in
the concrete divider box. They placed boards in these plat-
es, to block the flow of water.      The boards caused back
pressure producing wet spots on Mr. Warner's property. Mr.
Warner spoke with Mrs. Walker about the problem, but they did
not arrive at a mutually satisfactory solution.     Each time
the Walkers would place boards at the culvert or in the
divider box, Mr. Warner would remove them.
     Mr. Warner's repeated removal of the boards led to this
suit, in which he was accused of contempt of court for refus-
ing to honor the Walkers' right to control the water level in
Pond 3.   The Walkers also complained of stagnation in the
pond and asked that Mr. Warner be enjoined from interfering
with their control of the flow of water through the system.
Mr. Warner counterclaimed for damages to his property caused
by misuse of the water level controls.       He requested an
injunction prohibiting the Walkers from interfering with the
culvert serving Pond 3. After 2 days of trial, the District
Court viewed the property.    Mr. Warner was found guilty of
contempt, was assessed a $500 fine, and was ordered to pay
the Walkers' court costs.      The court concluded that the
stagnant conditions in the pond were caused by the Walkers'
refusal to use the Haugen ditch water to help fill the pond,
not by any action of Mr. Warner's.
                               I
     Did the District Court err in finding Mr. Warner in
contempt?
     Mr. Warner argues that the system of pipes and culverts
has engineering and operational shortcomings which became
apparent shortly after installation.        He asserts that he
should not be held in contempt for his efforts to protect his
property and to remedy these shortcomings within the few
months following installation of the system.
     Under S 3 - - 5 O ( l ) (e), MCA, it is a contempt of the
authority of the court to act in "disobedience of any lawful
judgment, order, or process of the court."         The District
Court's judgment nunc pro tunc requires the parties to abide
by the settlement agreement, which allows the Walkers to
control the pipeline system supplying water to Pond 3.
     Mr. Warner admitted at the hearing that he removed the
boards the Walkers placed to control the water level in Pond
3, and that he knew he was interfering with the Walkers'
right to control the water level.    Although it is conceded
that the system has intrinsic problems, nothing in the agree-
ment or in the court's order to comply with the agreement
gave Mr. Warner the authority to correct these problems;
control was clearly given to the Walkers. The District Court
entered extensive findings demonstrating that it had consid-
ered this issue in depth.     We conclude that the District
Court did not err in finding Mr. Warner in contempt.
                             I1
     Did the District Court err in failing to grant Mr.
Warner injunctive relief?
     Mr. Warner argues that the Walkers' use of boards to
block the flow of water causes wet spots on his property and
constitutes a temporary continuing nuisance.     He suggests
that the water level in the pond should be controlled through
the use of Haugen ditch water, lowering the boards in the
divider box, unblocking the culvert from the divider box to
Pond 4, and reinstalling the pipe from Pond 3 to Pond 4. His
proposal, he says, would not cause water seepage and satura-
tion on his property, yet would allow maintenance of the
proper water level in Pond 3. He asked the District Court to
enjoin the Walkers from allowing the water level in the
divider box to rise above a certain level and from blocking
Dry Creek during November, December, January, and February.
The court did not grant any such injunction.
     The District Court found that "[alny water spots on
Warner's property should be only temporary," in the opinion
of the builder of the water system, Ray Johnson. Mr. Johnson
also testified and the court found that the water would back
up toward Mr. Warner's property, but not enough to be
significant.    A civil engineer testified, and the court
found, that it was necessary to block the creek to get a
water flow into Pond 3 and that if the boards were removed,
the flow through the pipes reversed and the pond began to
drain.   The court found that the area in which water spots
occur "is a hundred yards or more from the Warners' residence
and maintained grounds." The court concluded that the conse-
quences of the actions necessary to maintain an adequate
water level in Pond 3 is "slight leakage at the joints of the
underground culvert and small wet spots on the surface of
defendants' property," and that " [t]hese wet spots are not
significant, do not interfere with defendant's use of his
property and may, in time, disappear."
     After reviewing the record, we conclude that the Dis-
trict Court's findings are supported by the testimony pre-
sented. Findings supported by substantial evidence will not
be overturned.   The District Court's conclusions as to the
insignificance of the wet spots are not clearly erroneous,
based upon the record. We hold that the District Court did
not err in denying Mr. Warner injunctive relief.

     Did the District Court err in assessing costs against
Mr. Warner?
     Mr. Warner maintains that under State ex rel. , Foss v.
District Court (Mont. 1985), 701 P.2d 342, 42 St.Rep. 845,
costs should be taken out of the fine levied against the
contemnor. He states that the $500 fine should be a part of,
not in addition to, the $1,566.15 in costs awarded to the
Walkers.    Actually, the statement in Foss is that costs
allowed in the court's discretion under § 25-10-103, MCA, are
limited to those which can be taken out of the fine levied
against the contemnor. Foss, 701 P.2d at 346. As the Walk-
ers correctly point out, costs could be awarded to them under
either 5 25-10-103, MCA, or under S 25-10-101(6), MCA, be-
cause this was an action for an injunction.     The District
Court's order does not state under which statute it took its
authority to award costs.     We must assume that the court
correctly took its authority and calculated the judgment
amount under 5 25-10-101 (6), MCA.
     The Walkers ask that they be awarded their costs and
attorney fees incurred on appeal. Costs on appeal of a civil
case are automatically awarded to the successful party under
Rule 33, M.R.App.Civ.P.     The Walkers assert that they are
entitled to their attorney fees under 5 70-17-112(2), MCA,
because this is an action to stop an encroachment on an
easement.   They also maintain that they are entitled to
attorney fees under a provision in the subdivision's protec-
tive covenants. That provision provides for attorney fees in
successful actions to enforce the covenants.
     The District Court did not conclude that Mr. Warner's
actions constituted an encroachment on an easement or a
violation of the restrictive covenants.    The problems with
the ponds would be best resolved if the parties ironed out
their differences in a spirit of cooperation among them-
selves, rather than resorting to litigation. Costs on appeal
are awarded to the Walkers, and each party shall pay its own
attorney fees.
     Affirmed.
