                                No. 8 7 - 3 4 0
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1988




CARELESS CREEK RANCH CO.,
                 Plaintiff and Respondent,
         -vs-
JAMES W. MURNION,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Fourteenth Judicial District,
                 In and for the County of Wheatland,
                 The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Sandall, Cavan, Smith      &   Grubbs; John J. Cavan,
                 Billings, Montana
         For Respondent :
                 Crowley, Haughey, Hanson, Toole        &   Dietrich; William
                 J. Mattix, Billings, Montana



                                    Submitted on Briefs:         Oct. 22, 1 9 8 7
                                       Decided: January 19, 1988

Filed:


                                137,
                                    Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

      This is an appeal from an injunctive order issued in
the District Court, Fourteenth Judicial District, Wheatland
County, requiring Murnion to remove from his reservoir six
feet of overflow pipe which had increased the height and
extent of the reservoir. We affirm.
      Careless Creek Ranch Company owns land in Wheatland and
Golden Counties of Montana.      Murnion also owns land in
Wheatland County adjacent to Careless Creek's land. Murnion
maintains an irrigation reservoir on his property of 16 acres
that is entirely surrounded by Careless Creek's land. When
Murnion first purchased the property from his predecessor's
in interest in 1972, the dam was in need of repair. Murnion
repaired the dam and in doing so increased the size and
capacity of the reservoir. Murnion also raised by four feet
the height of the overflow pipe or trickle tube that controls
the water level of the reservoir. This adjustment resulted
in waters encroaching on to Careless Creek's land.
      In 1978 spring runoff washed out Murnion's dam.
Murnion rebuilt the dam, again increasing the height and
length of the dam.    Approximately five years later in 1984
Murnion added a six foot extension to the overflow pipe to
increase storage capacity.    Consequently, more water could
encroach upon Careless Creek's property when the reservoir
was full. Careless Creek brought the action below for tres-
pass and injunctive relief to remove the six foot extension
of the overflow pipe and prevent the water from backing up on
their land. The issue on appeal is whether the injunction was
improper because it deprived Murnion of his right of private
eminent domain.
      The District Court held that Murnion's 5 85-2-414, MCA,
eminent domain argument was not a proper affirmative defense.
Because Murnion had not initiated a condemnation action in
accordance with Montana's eminent domain statutes 570-30-101,
et. seq., MCA, pursuant to (5 85-2-414, MCA, his eminent
domain argument was without merit.     The court further held
that even if the defendant had instituted an action under (5
85-2-414, MCA, he would have no rights under the statute
because the statute has been interpreted as granting a right
to raise the water level "sufficiently to make the water
enter a ditch."     State ex re1 Crowley v. District Court
(1939), 108 Mont. 89, 104, 88 P.2d 23, 30.
      Section 85-2-414, MCA, provides:

    Conduction of water.    The right to conduct water
    from or over the land of another for any beneficial
    use includes the right to raise any water by means
    of dams, reservoirs, or embankments to a sufficient
    height to make the same available for the use
    intended, and the right to any and all land neces-
    sary therefor may be acquired upon payment of just
    compensation in the manner provided by law for the
    taking of private property for public use. If it
    is necessary to conduct the water across the
    right-of-way of any railroad, it shall be the duty
    of the owners of the ditch or flume to give 30
    days' notice in writing to the owner or owners of
    such railway of their intention to construct a
    ditch or flume across the right-of-way of such
    railroad, the point at which the ditch or flume
    will cross the railroad, and the time when the
    construction of said ditch or flume will be made.
    If the owner or owners of such railroad or their
    agent fail to appear and attend at the time and
    place fixed in said notice, it shall be lawful for
    the owner or owners of the said flume or ditch to
    construct the same across the right-of-way of such
    railroad without further notice to said owner or
    owners of the railroad.
Murnion asserts that this statute coupled with Montana's
strong policy in favor of the maximum development and
conservation of water resources gives him the power of
eminent domain to condemn Careless Creek's property for his
irrigation reservoir.    Murnion also argues that Careless
Creek cannot obtain injunctive relief and can only pursue an
action for inverse condemnation.
      An action to condemn land pursuant to B 85-2-414, MCA,
must follow the eminent domain proceedings of § 70-30-101 et.
seq., MCA, "all land necessary therefor may be acquired upon
payment of just compensation in the manner provided by law
for the taking of private property for public use." Section
85-2-414, MCA.    Section 70-30-202, MCA, provides that all
eminent domain proceedings must be commenced by filing a
complaint in district court. After the complaint is filed,
the district court must set a hearing to determine if a
preliminary condemnation order is appropriate. Section 70-
30-206, MCA. If the court issues a preliminary condemnation
order, the party whose land is being appropriated must file a
statement of his claim for just compensation.             The
appropriator must either accept the claim or condemnation
commissioners are appointed to assess compensation subject to
appeal.   Section 70-30-207, MCA.   No proceeding has been
commenced by Murnion.  He cannot contend that his right of
eminent domain has been taken away when he has not even
initiated the proper procedures to pursue the action.   Fe
                                                         J
hold that the District Court properly interpreted the law.
      Although the fact that Murnion has not initiated
eminent domain proceedings is determinative,    the District
Court correctly held that under the facts of this case even
if the defendant had initiated eminent domain proceedings he
would have no rights under         85-2-414, MCA.    Section
85-2-414, MCA, supra, allows the raising of water "to a
sufficient height to make the same available for the use
intended."   Section 85-2-414, MCA.   Murnion's reservoir is
already   at   a sufficient height for the use intended,
irrigation.    His headgate which conveys water to the ditch is
on the bottom of the dam.       Therefore, the water   level is
already raised "sufficient to make the water enter a ditch."
Crowley, 88 P.2d at 30. Affirmed.
                                        n

                                    W &&/
                                     P , -  Justice
We Concur:
                A'

          "
      Chief*Justice




          Justices
