                                      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 . ~ a v i k ,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




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                 !b                                   Decided:   November 21, 1994
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
