                                           No. 01-044

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2002 MT 295N



SITZ ANGUS FARMS LIMITED PARTNERSHIP,
a Montana Limited Partnership,

              Plaintiff, Respondent and Cross-Appellant,

         v.

EDWARD J. DALLASERRA, JR., and
DONALD A. DALLASERRA,

              Defendants and Appellants.




APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and for the County of Beaverhead,
                     Honorable Frank M. Davis, Judge Presiding


COUNSEL OF RECORD:

              For Appellants:

                     Holly Jo Franz, Gough, Shanahan and Johnson, Helena, Montana

              For Respondent:

                     John E. Bloomquist & Patti L. Rowland, Doney, Crowley, Bloomquist
                     and Uda, Helena, Montana



                                                    Submitted on Briefs: November 8, 2001

                                                                Decided: December 12, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme     Court    cause    number     and    result   to   the   State   Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2    Appellants,        Edward     J.    Dallaserra,     Jr.,      and   Donald   A.

Dallaserra (Dallaserras), appeal from the findings of fact and

conclusions of law entered by the Montana Fifth Judicial District

Court, Beaverhead County, declaring ownership and interests in

Blomquist Spring and Blomquist Reservoir.                Sitz Angus Farms (Sitz)

cross-appeals the District Court’s decision denying attorney fees

to Sitz as the prevailing party.

¶3    We affirm in part, reverse in part, and remand.

¶4    We rephrase the issues on appeal as follows:

¶5   1.   Did the District Court exceed its jurisdiction when
granting declaratory relief regarding water rights to Blomquist
Spring and water storage rights in Blomquist Reservoir?

¶6   2. Did the District Court err by denying Appellants’ post-
judgment motion to certify the parties’ underlying water rights
claims to the Montana Water Court?

¶7   3. Did the District Court err in denying Appellants’ motion
to amend the judgment to conform to the findings of fact and
conclusions of law entered by the District Court?

¶8   4. Did the District Court err in denying Appellants’ motion
for a new trial?

¶9   5.     Did   the   District Court  err   in  denying  the
Respondent/Cross-Appellant an award of costs and attorney fees
pursuant to § 70-17-112, MCA?

                                            2
                              BACKGROUND

¶10   Dallaserras and Sitz own adjacent pieces of property.     Both

pieces of property were previously owned by John E. Blomquist (Mr.

Blomquist), now deceased.    In 1944, Mr. Blomquist filed a Notice of

Appropriation of Water Right in Beaverhead County, claiming the

water of certain springs.    In the same year, Mr. Blomquist and his

son Emmett E. Blomquist (Emmett) developed what is known as the

Blomquist Spring and developed and constructed a reservoir known as

the Blomquist Reservoir.     Water from Blomquist Spring flows in a

southeasterly direction and is conveyed to the reservoir by means

of a channel or ditch constructed by Mr. Blomquist.
¶11   The ditch, or channel, conveying water from Blomquist Spring

currently flows through Blomquist Reservoir to a headgate control

device located at the reservoir dam impoundment.          Water from

Blomquist Spring is stored in Blomquist Reservoir when the water

level in the reservoir is sufficient to inundate the channel or

ditch, or when the headgate is closed and the reservoir fills.

¶12   The reservoir has two headgate outlets situated at the dam.

The north headgate is situated at the terminus of the ditch from

Blomquist Spring and controls the release of water to a ditch which

courses across Dallaserras’ property to supply water to both

Dallaserras and Sitz.       The south headgate is situated at the

southern edge of the dam and controls the release of water to a

ditch system which transports water to Dallaserras’ pump site.

Water released from the south headgate is not available to Sitz at

Sitz’s pump site during the irrigation season but has historically



                                  3
supplied stockwater to Sitz’s property in the fall and winter.

Water   released     from   the   south    headgate   bypasses   the   water

distribution and measuring device, known as a “Splitter Box,” which

is situated in the ditch conveying irrigation water from the north

headgate.

¶13   The Blomquist Reservoir is situated on the property currently

owned by Dallaserras.       The Blomquist Spring and Blomquist Reservoir

were part of a large system used to benefit the property originally

owned by Mr. Blomquist, and the reservoir was required in order to

control and convey the water derived from Blomquist Spring.
¶14   Mr. Blomquist first conveyed a portion of his property by a

deed dated April 15, 1955, conveying to his son and daughter-in-

law, Emmett and Voris C. Blomquist (Voris), an undivided one-

quarter   interest    in    the   spring   and   reservoir   along   with   an

unqualified easement across his land for the purpose of conveying

water to the land of Emmett and Voris.

¶15   In May 1955, Emmett purchased from his brother 80 additional

acres of property that was also previously owned by his father.

According to Emmett, the property purchased from his brother

contained the water rights from Willow Creek, which Emmett then

traded to his father in exchange for a greater share of the right

to the water from Blomquist Spring.          Water from Willow Creek also

feeds into the Blomquist Reservoir.         A deed transferring the Willow

Creek water rights from Emmett to his father was executed in 1958.

 No similar deed, however, was executed to transfer additional




                                      4
spring rights from Mr. Blomquist to Emmett.               It is this property,

formerly owned by Emmett and Voris, that is now owned by Sitz.

¶16   In 1961, Mr. Blomquist transferred his remaining property to

Don T. McCandless        and T.M. McCandless (McCandlesses), along with

“[a]ll water and water rights, ditches and ditch rights thereunto

belonging or in any ways appertaining, including but not limited to

the right to use 500 inches of water of that certain unnamed spring

the notice of appropriation of which is recorded in Book 73 of

Water Rights, at page 351, official records of Beaverhead County,

Montana . . . .”
¶17   In 1974, Emmett, Voris, and the McCandlesses executed and

recorded an instrument entitled “Correction Conveyance of Water

Right.”      Sitz and Dallaserras agree that this instrument was

completed by their predecessors, but disagree on the effect the

instrument    had   on    the    legal   interests   of   each   party   to   the

Blomquist Reservoir.            The Correction Conveyance described the

Blomquist and McCandless interest as follows:

      That T.M. McCandless and Verla McCandless are the owners

      of a two-thirds (2/3) interest, and that Emmett E.

      Blomquist and Voris C. Blomquist are the owners of a one-

      third (1/3) interest in and to that certain unnamed

      spring and the waters derived therefrom, together with

      all rights applicable thereto . . . .

At trial, Emmett, a party to the correction instrument, testified

that the intention of the parties was to split the waters derived

from Blomquist Spring on a one-third/two-third basis.



                                         5
¶18    In 1983, Emmett and Voris sold their property to Mallon Ranch

Company under a contract for deed.                  This transfer included all

water and water rights, ditches and ditch rights appurtenant to the

real property including, but not limited to, one-third of the flow

of    the   “Big   Spring”     and    “all    tenements,      hereditaments,     and

appurtenances thereto belonging or in anywise appertaining.”

¶19    In June 1997, Sitz purchased the property from the Mallon

Ranch Company.        The “Assumption Agreement” by Sitz and Mallon

contained      identical       language       regarding      water    rights     and

appurtenances.         Based     on    previous      claims    and   conveyances,

Dallaserras agree that Sitz is entitled to one-third of the flow of

Blomquist Spring for Sitz’s property and that Dallaserras are

entitled to the remaining two-thirds flow of Blomquist Spring for

use on their own property.              Sitz and Dallaserras are also in

agreement that Dallaserras are entitled to all of the “Willow

Creek” water for use on Dallaserras’ land.              They disagree, however,

on whether Sitz is entitled to use Blomquist Reservoir to store

Sitz’s share of water generated from Blomquist Spring.                    As a result

of    the   dispute   over   ownership        of   storage   water   in    Blomquist

Reservoir and a dispute over Sitz accessing the north headgate over

Dallaserras’ land for the purpose of adjusting the amount of water

released by the north headgate into the north ditch, Dallaserras

placed a lock on the north headgate and blocked access across their

land from the highway.         Dallaserras’ actions led to Sitz filing its

complaint in June 1999.




                                          6
¶20    Sitz sought from the District Court a declaratory judgment

determining that it owns a one-third interest in the direct flow

from Blomquist Spring and that it additionally has a right to any

of    its    one-third     interest    that     may   be     stored     in   Blomquist

Reservoir.         Sitz also sought damages and injunctive relief against

Dallaserras        for   alleged    interference      with    Sitz’s     primary    and

secondary ditch easements and for Dallaserras’ alleged interference

with Sitz’s use of the water by locking the north headgate and

blocking access across their land.                 Finally, Sitz requested that

the District Court order Dallaserras to install measuring devices

and to remedy a defective condition of the Splitter Box.
¶21    After a bench trial, the District Court entered findings of

fact and conclusions of law and concluded that Sitz was entitled to

a    one-third      interest   in    the   water    derived       or   generated    from

Blomquist Spring.          The District Court concluded that Sitz was

entitled to a one-third interest in and to Blomquist Reservoir to

store and convey its interest in water derived or generated from

Blomquist Spring.         The District Court further concluded that Sitz’s

interest      included     primary     and      secondary     easements       for   the

conveyance of the water and for access to all conveyance works

across      Dallaserras’    property       consistent      with    previous    owners’

historic access.

¶22    In    its    judgment   the    District     Court     permanently      enjoined

Dallaserras from locking headgates, access gates, and from moving

or interfering with the distribution works and enjoined Dallaserras




                                            7
from any further activities interfering with Sitz’s rights to

peaceably enjoy its interest.

¶23   In its findings and conclusions, the District Court also

ordered Dallaserras to repair and replace the Splitter Box and

ordered the parties to develop an equitable and workable plan to

distribute to each party their respective one-third two-third

interest, splitting costs between Sitz and Dallaserras according to

ownership interest.   Finally, the District Court ordered that each

party bear their own respective costs and attorney fees.
¶24   Dallaserras now appeal.    Sitz cross-appeals the District

Court’s denial of its request for costs and reasonable attorney

fees as the prevailing party.

                            DISCUSSION

¶25 1.    Did the District Court exceed its jurisdiction when
granting declaratory relief pertaining to water rights in Blomquist
Spring and water storage rights in Blomquist Reservoir?

¶26   Dallaserras contend that the District Court’s declaratory

ruling that Sitz owned a one-third interest in the water from

Blomquist Spring and a one-third interest to store the water in

Blomquist Reservoir is a de facto adjudication of water rights

which lies exclusively within the jurisdiction of the Montana Water

Court.   Dallaserras argue that, because the water court had issued

no previous decrees regarding water rights to Blomquist Spring or

Blomquist Reservoir, the District Court did not have jurisdiction

to issue an injunction or clarify entitlements based upon any

former decree of water rights.




                                 8
¶27   Sitz first responds that its one-third ownership interest in

the water from Blomquist Spring was admitted by Dallaserras in

their Answer, stipulated to as a judicial admission in the pretrial

order, and recognized at trial.            Sitz contends that the inclusion

of this fact in the District Court’s findings of fact is nothing

more than a recognition, rather than an adjudication, by the

District Court of agreed upon water rights in Blomquist Spring.

¶28   Second, Sitz responds that the District Court’s declaration of

interests in Blomquist Reservoir was a declaration of property

rights,    wholly   apart      and   separate     from     a    declaration     or

adjudication of water rights.        Sitz argues that such a declaration

of    property   rights   in    Blomquist      Reservoir       consisted   of   an

adjudication of easement and ownership interests in the conveyance

system developed by Sitz’s and Dallaserras’ predecessors, and

consisted of and required no adjudication of priority dates,

established flow rates, points of diversion, places of use, acres

irrigated, nor any other elements or parameters of the rights as

would be adjudicated by the Water Court.
¶29   Dallaserras rely on this Court’s decision in State ex rel.

Jones v. District Court (1997), 283 Mont. 1, 938 P.2d 1312.                     In

Jones, the four district court judges of the Fourth Judicial

District ordered that a 1902 decree, that decreed 27 water rights

on Carlton Creek, be updated.        The judges were concerned about the

deteriorating physical state of the 1902 decree in conjunction with

the fact that it would be necessary for the water commissioners, as




                                       9
well as the public, to handle the decree.         Jones, 283 Mont. at 3-4,

938 P.2d at 1314-15.

¶30   The Montana Water Court, however, was also in the process of

adjudicating the rights to Carlton Creek, which included 92 claims

for Carlton Creek waters.         Had the Updated Decree been allowed to

stand,     it     would    have    controlled    the     determination         and

administration of water rights on Carlton Creek.

¶31   The order authorizing the updated decree provided in part:

      Finding of Fact 3 – To remedy this situation the 1902
      decree should be reworked and expanded to include
      additional information such as the land description of
      the place of use, any subsequent court order defining a
      decreed right, the judicial knowledge of the court
      relating to present use of water, and information
      regarding ditches, lake storage water or any other
      information that is necessary for a water commissioner to
      have to properly perform his duty.
      Order number 4 – That the updated decree shall supercede
      [sic] all prior pleadings in this action relating to the
      matters contained in the updated Decree.

Jones, 283 Mont. at 6, 938 P.2d at 1315-16.

¶32   The resulting Updated Decree decreed “the ownership, priority

date, flow rate, place of use and means of diversion of the various

rights.”        Jones, 283 Mont. at 6, 938 P.2d at 1316.                 It thus

constituted      a   de   facto   adjudication   of    water   rights,    as   an

adjudication of said elements are within the exclusive jurisdiction

of the Water Court.        Jones, 283 Mont. at 6, 938 P.2d at 1316.             We

thus held that, pursuant to § 85-2-234(6), MCA, the district court

exceeded its jurisdiction.          “[W]hile a district court may grant

injunctive or other relief which is necessary and appropriate to

preserve property rights or the status quo pending issuance of a



                                       10
final decree, the district court lacks jurisdiction to issue a

final decree with regard to the water right.”    Jones, 283 Mont. at

7, 938 P.2d at 1316.

¶33   We agree with Sitz that Jones is not applicable to the present

situation.    As noted by Sitz, the pretrial order reflects an

agreement between Sitz and Dallaserras that Sitz was entitled to

one-third of the flow of Blomquist Spring.      Likewise, in opening

statement at trial, counsel for Dallaserras stated:

      One, Sitzes have asked this Court to declare that they’re
      entitled to one-third of the flow from the spring. We
      have no objection to that.        We agree with that.
      Secondly, Sitz is asking this Court to declare that
      they’re entitled to store in the reservoir one-third of
      their water if they wish. And we do object to that . . .
      .
¶34   The District Court’s declaration that Sitz owns one-third and

Dallaserras own two-thirds interest in Blomquist Spring was not an

adjudication of water rights, but merely a recognition that the

parties presented no question of fact regarding ownership of such

water rights based upon previous use and conveyances.

¶35   Further, this Court has previously held that water rights and

property rights, such as ditch rights, are entirely bifurcated and

thus separate from one another.       See Mildenberger v. Galbraith

(1991), 249 Mont. 161, 166, 815 P.2d 130, 134 (citation omitted);

also see Smith v. Krutar (1969), 153 Mont. 325, 331, 457 P.2d 459,

462 (concluding that a water right and a ditch right may exist as

separate and independent species of property).

¶36   The determination that Sitz owned a one-third interest in

Blomquist Reservoir in no way adjudicated existing water rights.



                                 11
As the District Court ably noted, this was not a water rights case,

but a secondary easement case dealing with, among other issues,

Sitz’s interest to store and convey water through and across

Dallaserras’    property       via    Blomquist      Reservoir,    which,     it

determined, was an appurtenance to the Sitz property.             Notably, the

District Court did not adjudicate priority dates, establish flow

rates, points of diversion, places of use, acres irrigated, nor any

other   elements    or   parameters     of    each   parties’   water   rights.

Rather, its determination that Sitz owned a one-third interest in

Blomquist Reservoir was an adjudication of easement and ownership

interests in the conveyance system.           Such adjudication of property

rights is properly within the jurisdiction of the District Court.
¶37   We hold, therefore, that the District Court did not exceed its

jurisdiction.      Its decision is affirmed accordingly.

¶38 2. Did the District Court err by denying Appellants’ post-
judgment motion to certify the parties’ underlying water rights
claims to the Montana Water Court?

¶39   Dallaserras    contend    that,    as    the   District   Court   has   no

jurisdiction over water rights, it erred in denying Dallaserras’

post-judgment motion for certification of the parties’ claims to

the Montana Water Court.        However, as we have already concluded

that the District Court did not exercise authority outside its

jurisdiction, as it did not adjudicate elements of either parties’

water rights claims, we likewise conclude that the District Court

did not err in denying Dallaserras’ post-judgment motion for

certification to the Water Court.

¶40   The denial of Dallaserras’ post-judgment motion is affirmed.



                                        12
¶41 3. Did the District Court err in denying Appellants’ motion
to amend the judgment to conform to the findings of fact and
conclusions of law entered by the District Court?

¶42   The standard of review of discretionary trial court rulings is

abuse of discretion.       Harwood v. Glacier Electric Co-op, Inc.

(1997), 285 Mont. 481, 492, 949 P.2d 651, 658 (citation omitted).

Discretionary trial court rulings include trial administration

issues and post-trial motions.     Harwood, 285 Mont. at 492, 949 P.2d

at 658.

¶43   Dallaserras contend that the judgment entered by the District

Court addressed a number of issues which were not addressed in the

court’s findings of fact and conclusions of law, including the

granting of injunctive relief, the requirement for Dallaserras to

move the Splitter Box at their sole cost, the specific definition

of    Sitz’s   secondary   ditch   easement,   and   the   finding   that

Dallaserras interfered with Sitz’s easement.          Dallaserras thus

argue that the judgment is not supported by the findings of fact

and requests that this Court remand to the District Court for entry

of judgment consistent with its findings.

¶44   Sitz responds that the District Court’s relief was within its

equitable authority, that the judgment was grounded upon the

evidence presented at trial and properly based on the court’s

findings, conclusions, and memorandum.     Sitz prepared the judgment

at the direction of the District Court and submitted a copy to

Dallaserras for comment.     After nearly two weeks, Sitz received no

comment from Dallaserras and submitted the judgment to the District

Court for consideration.



                                    13
¶45   This Court has previously stated that:

      [F]indings of fact and conclusions of law are not the
      judgment, but merely the foundation for the judgment.
      This foundation need not consist of a multitude of
      evidentiary facts, but must be comprised of ultimate
      facts. In other words, the findings of fact required by
      Rule 52(a) is nothing more than a recordation of the
      essential and determining facts upon which the District
      Court rested its conclusions of law and without which the
      District Court’s judgment would lack support.

Wareing v. Schreckendgust (1996), 280 Mont. 196, 207, 930 P.2d 37,
44 (citation omitted).

¶46   While the findings of fact, conclusions of law and memorandum

of the District Court do not directly address the granting of

injunctive relief to Sitz, the District Court included in the

findings    the   ultimate      fact   that   Dallaserras’      control     of   the

distribution system of Blomquist Reservoir “has deprived and is

depriving Sitz” the full use of its one-third interest in the water

from Blomquist Spring.          This finding is sufficient to support the

injunctive    relief     in    the   judgment,   and     additionally     supports

inclusion    in    the    judgment     that    the   actions    of    Dallaserras

interfered with Sitz’s peaceful enjoyment associated with its one-

third interest.
¶47   Likewise, the above findings, in addition to the District

Court’s finding that Blomquist Reservoir is an appurtenance to the

respective properties, supports the inclusion of the specific

definition of Sitz’s secondary ditch easement in the court’s

judgment.

¶48    We    do   agree       with   Dallaserras       that   the    judgment    is

inconsistent      with   the    District     Court’s    findings     of   fact   and

conclusions of law wherein the judgment orders that Dallaserras


                                        14
shall bear all costs associated with repairing and replacing the

Splitter Box in a manner which results in an accurate and reliable

distribution of water according to each parties’ interest.                 The

District Court specifically states in finding # 11:

      The Court finds that any cost necessary to implement a
      practical distribution plan should be borne by the
      parties, 2/3-1/3. If a water master or commissioner is
      necessary, they should likewise share that cost.

¶49   The   judgment,   in   paragraph     6,   thus   erroneously   requires

Dallaserras    to   bear   all   costs    associated    with   repairing   and

replacing the Splitter Box.       We hold, therefore, that the District

Court erred in ordering that Dallaserras bear all costs associated

with repairing and replacing the Splitter Box.           This portion of the

judgment is reversed and remanded accordingly.             Upon remand, the

District Court shall amend the judgment to reflect that the parties

shall share costs according to their respective interests.
¶50   The decision of the District Court in denying Dallaserras’

motion is otherwise affirmed.

¶51   4.    Did the District Court err in denying Appellants’ motion

for a new trial?

¶52   Dallaserras contend that a prejudicial irregularity occurred

during trial that prevented them from receiving a fair trial.

According to an affidavit submitted by Dallaserras, the judge fell

asleep during trial, missing all or portions of the testimony of

Larry Lee Mallon (Mallon).        Dallaserras argue that, as the judge

did not avail himself of the opportunity to listen to Mallon’s

testimony or observe his demeanor, the court was in no position to

issue findings in this matter.


                                     15
¶53   Dallaserras   rely   on    this        Court’s   holding    in   Worden   v.

Alexander (1939), 108 Mont. 208, 90 P.2d 160, 161-62, wherein we

stated:

      It has been held by this court that where a motion for a
      new trial is heard by a judge who did not try the case,
      such judge, not having seen the witnesses or heard their
      testimony and observed their demeanor on the stand, was
      compelled to gain his knowledge of the case from the
      record alone, and was therefore in no better position to
      determine the motion than is this court, and hence his
      order does not carry with it the presumption usually
      indulged in favor of such order.

¶54   Sitz responds that Dallaserras did not suffer prejudice as

Mallon’s testimony did not support any of Dallaserras’ assertions,

but   rather,   buttressed      Sitz’s       assertions   in     its   complaint.

Further, Sitz argues that even without Mallon’s testimony, the

District Court received numerous documentary exhibits and the

testimony of other witnesses, particularly the testimony of the

former owner of the Sitz property, Emmett Blomquist.
¶55   We agree with Sitz and find Dallaserras’ reliance on Worden

unpersuasive.   This Court’s holding in Worden broadly refers to a

situation in which a trial judge has not had the benefit of

listening to or observing any trial witnesses, and was thus in no

better position than this Court to review a transcript and grant or

deny a motion for a new trial.               That is not the case presently

before this Court.

¶56   In the present situation, it is not alleged that the trial

judge did not listen to or observe the other seven witnesses who

testified at trial.   Prejudice thus cannot be presumed.                Rather, a

review of the transcript is necessary and helpful.                The transcript



                                        16
reveals that Larry Mallon testified that he was familiar with the

irrigation     practices    on    both    the   Dallaserras   and   the    Sitz

properties.        Mallon testified that some of his irrigation water

probably flowed from water stored in the Blomquist Reservoir, that

he participated in maintenance of the channels, spring and the

reservoir and paid for any maintenance according to his one-third

interest.     He further testified that he commonly accessed the

Splitter     Box    and   pump   site    location   by   crossing   over    the

Dallaserras property from the Highway 91 North access point.

Mallon also testified, based on what he had been told by Emmett,

that he believed his one-third interest included the right to store

water in the reservoir and that he would access the reservoir if he

knew there was some water in it that he could use.
¶57   We note that the substance of Larry Mallon’s testimony lends

support to Sitz’s allegations and offers nothing to substantiate

Dallaserras’ assertions.         As a result of our review of the entire

transcript, we conclude that, even without Mallon’s testimony, the

District Court’s findings of fact are supported by substantial

evidence, particularly the testimony of the former owner of the

Sitz property, Emmett.

¶58   This Court reviews the findings of a district court sitting

without a jury to determine if the court’s findings are clearly

erroneous.    See Rule 52(a), M.R.Civ.P.        A district court’s findings

are clearly erroneous if substantial credible evidence does not

support them, if the trial court has misapprehended the effect of

the evidence or if a review of the record leaves this Court with



                                         17
the definite and firm conviction that a mistake has been committed.

 Ray v. Nansel, 2002 MT 191, ¶ 19, 311 Mont. 135, ¶ 19, 53 P.3d

870, ¶ 19 (citation omitted).

¶59   As the District Court’s findings are supported by substantial

evidence, apart from Mallon’s testimony, we conclude that its

findings are not clearly erroneous and that Dallaserras did not

suffer prejudice even in the event that the trial judge may have

missed all or part of Mallon’s testimony.

¶60 5.      Did   the   District Court  err   in  denying  the
Respondent/Cross-Appellant an award of costs and attorney fees
pursuant to § 70-17-112, MCA?

¶61   In   its   July   2000,   order,    the    District   Court   found   that

“Dallaserras’ control of the distribution system of the reservoir

water both from the spring and Willow Creek, has deprived and is

depriving Sitz” of the full use of what Dallaserras admit is a one-

third right to the water originating from Blomquist Spring.

¶62   In   its   attached   Memorandum,         the   District   Court   stated:

“Although downright arrogant and unneighborly, the Court gives them

the benefit of the doubt as to what they perceived to be a good

faith position.         Thus in the Court’s discretion, no costs or

attorney fees are imposed.         Further interference to a secondary

easement right would surely justify such sanctions.”

¶63   Sitz contends that it is the prevailing party in this action

and, as the prevailing party, is entitled to costs and attorney

fees pursuant to § 70-17-112(5), MCA.             Said section provides:

      If a legal action is brought to enforce the provisions of
      this section, the prevailing party is entitled to costs
      and reasonable attorney’s fees.



                                         18
Sitz brought this action, in part, pursuant to § 70-17-112(1), MCA,

which provides:

       A person with a canal or ditch easement has a secondary
       easement to enter, inspect, repair, and maintain a canal
       or ditch.

In this action, Sitz pled interference with its easement interests

in Blomquist Reservoir, the attendant ditch, distribution system,

and interference by Dallaserras of Sitz’s secondary easements to

access said interests.

¶64     Sitz obtained a ruling enforcing subsection (1), guaranteeing

a secondary easement and preventing Dallaserras from encroaching or

impairing said easement.      As Sitz is the prevailing party in this

action, pursuant to subsection (5), Sitz is also entitled to

receive costs and reasonable attorney fees.             Accordingly, as Sitz

successfully enforced subsection (1), the District Court, pursuant

to    subsection   (5),   retained   no    discretion    to   deny   costs   and

reasonable attorney fees.       Said costs and attorney fees include

those incurred by Sitz herein on appeal.          See Kephart v. Portmann

(1993), 259 Mont. 232, 239, 855 P.2d 120, 124 (citing Sharon v.

Hayden (1990), 246 Mont. 186, 189, 803 P.2d 1083, 1085).
¶65    We hold that Sitz, as the prevailing party, is entitled to

costs and reasonable attorney fees pursuant to § 70-17-112(5), MCA.

 We reverse and remand accordingly.

¶66    Affirmed in part, reversed in part, and remanded.



                                           /S/ JIM RICE


We concur:


                                      19
/S/   JAMES C. NELSON
/S/   TERRY N. TRIEWEILER
/S/   W. WILLIAM LEAPHART
/S/   JIM REGNIER




                            20
