                               NO. 88-276
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1388



JOHN MILLER, JR., and WILLIAM
E. TAYLOR,
              Plaintiffs and Appellants,
       -vs-
YELLOWSTONE COUNTY, YELLOF7STONE COUNTY
COMMISSIONERS, GRACE M. EDWARDS, DWIGHT
MacKAY, CONRAD BURNS, and YELLOWSTONE
COUNTY TREASURER, MAY JENKINS,
                 Defendants and Respondents.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable Diane G. B a r z , Judge presiding.
COUNSEL OF RECORD:

         For Appellant:
                 Parker Law Firm; Paul E Toennis, Billings, Montana
         For Respondent:
                 Harold Hanser, County Attorey, Billings, Montana
                 David W. Hoefer, Deputy County Attorney, Billings



                                   Submitted on Briefs:   Aug. 18, 1988
                                     Decided:   September 27, 1988
          SEP 2 7 1988'
Filed:



                                */ Clerk
Mr. Justice LTohn C. Harrison delivered the Opinion of the
Court.


      Rural Special Improvement District No. 41 was created
in 1938 by the County Commissioners of Yellowstone County for
the installation of a water main having a diameter of four
inches for the benefit of the owners within the District. In
1986 the County Commissioners replaced the four-inch water
main in the District with one having a diameter of twelve
inches and assessed the cost thereof to the owners within the
District as a maintenance cost. We hold in this appeal by
John Miller, Jr. , from a summary judgment against him in the
District Court, Thirteenth Judicial District, Yellowstone
County, that the replacement of the water main was recon-
struction, not maintenance, and reverse the District Court.
      The County was apparently forced to enlarge the water
main because of the erection of a new county jail within the
boundaries of the District. The issue on appeal is whether
the replacement of a four-inch water main with a main of nine
times greater capacity is mere maintenance.      The question
seems to answer itself.
      Under 5 7-12-2102, MCA, county commissioners are given
broad power to order and create special improvement districts
outside the limits of incorporated towns and cities for the
purpose of building, constructing and acquiring all of the
improvements allowed to city special improvement districts as
described in 5 7-12-4102, MCA. Through the latter statute,
the county commissioners thus have the power, whenever the
public interest or convenience may require, to create special
improvement districts "and order the acquisition, construc-
ti-on, or reconstruction" of water mains and extensions of
water mains.   Section 7-12-4102 (2)(d)(iii), MCA.    (Emphasis
added. )
      Once a rural special improvement district has been
created, and     the  improvements installed, the        county
commissioners have two options by which to defray the cost of
maintenance. Under S 7-12-2120, it is made the duty of the
county commissioners "to adequately and suitably maintain and
preserve" the improvements and "to fully keep the same in
proper repair and operation" by contract or otherwise as the
board may determine.     The whole cost of such maintaining,
preserving or repairing the improvements under § 7-12-2120 is
assessed to the entire district and paid by the property
owners with their taxes.
      The other option for the county commissioners to pay
maintenance costs is to create an improvement district
maintenance fund under S 7-12-2162, MCA.           Under this
provision it is the duty of the county commissioners, before
the first Monday in September of each year, to adopt a
resolution assessing     the whole    cost of maintaining,
preserving or repairing the improvements for that year
against the property within the district.
      In this case, the County Commissioners apparently
decided to proceed under S 7-12-2120, MCA, to replace the
water line, and to charge the district property owners the
cost of replacement as maintenance, preservation and repair
of the water line, spread over five years.      But whichever
option was used, the applicable principles remain the same.
      No notice of the proposed replacement of the water line
or opportunity to protest the replacement was given to the
property owners within the District.
      It is obvious that the meanings of the words "mainte-
nance," "preservation" or "repair" cannot be stretched to
include the complete replacement of the water main, and its
enlargement to nine times its capacity.      A reconstruction
occurred, for which the County Commissioners had the power to
create a special improvement district under the statutes
aforesaid.    If the County Commissioners had proceeded to
create a rural special improvement district for such recon-
struction, the property owners would have been given notice
of the intention to create the district ( S 7-12-2105, MCA)
and of their right to protest its creation or extension
( § 7-12-2109, MCA).

       We hold that the replacement of the water line in this
case was not maintenance, but rather, reconstruction.      We
therefore reverse the summary judgment as to the appellant
John Miller, Jr. The other plaintiff, William E. Taylor, has
not appealed, and the judgment of the District Court stands
as to him.
       There were other issues raised both by Miller and the
County in the District Court which were not reached because
of the summary judgment. Those issues are not before us on
this appeal.     We therefore reverse and remand for further
proceedings before the District Cou t in conformance with
                                     5
this opinion.
                                                    I   -
                                          Justice
We Concur:


     '
         Chief Justice   /Y




         / Justices
Mr. Justice Sheehy did not participate in this cause.
