                                 No. 13652

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1978


LEONARD ELIASON and R. E. INDRELAND,
                       Plaintiffs and Appellants,


ROBERT EVANS,
                       Defendant and Respondent.




Appeal from:       District Court of the Third Judicial District,
                   Honorable Robert J. Boyd, Judge presiding.
Counsel of Record:
     For Appellant:

          Daniels and Mizner, Deer Lodge, Montana
          M.K. Daniels argued, Deer Lodge, Montana
     For Respondent :
          Knight, Dahood and Mackay, Anaconda, Montana
          Conde F. Mackay argued, Anaconda, Montana



                                   Submitted:   April 28, 1978

                                     Decided:      2 1 1918
Filed :        .   -   1 7 ?:
                            38
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
     Plaintiffs appeal from an order of the District Court,
Powell County, dissolving a temporary restraining order,
denying plaintiff's motion for an injunction pendente lite,
and adopting defendant's proposed findings of fact and con-
clusions of law.
     The action below involved three parties asserting
conflicting water rights.     The land involved is located in
the Deer Lodge Valley in Powell County, approximately 8 miles
south of Deer Lodge, Montana.    All of the land is bounded on
the west by Interstate 90 and on the east by the Clark Fork
River.   Defendant's land is located south and adjacent to
land previously owned by Mr. and Mrs. Raymond Johnson.    The
Johnson's property has apparently passed to their daughter,
Audrey Ragsdale.    For clarity, this property will hereafter
be referred to as the Johnson-Ragsdale land.    Plaintiffs'
land is situated immediately east of the Johnson-Ragsdale
property.     It is bounded on the immediate east by the Clark
Fork River.    All of the property slopes in a northeasterly
direction toward the Clark Fork River.
     In approximately 1955, defendant used a drag line to
construct a drainage ditch on the western boundary of his
property.     This ditch is estimated to be 35 feet wide and
five to seven feet deep; it extends about one mile north before
turning due east into a smaller irrigation ditch.    The smaller
ditch runs along the northern boundary of defendant's land.
     In the past, the excess water from the Evans' irrigation
ditch emptied and drained onto the southeast corner of the
Johnson-Ragsdale property.    From there, it flowed over the
Johnson-Ragsdale property and onto the property owned by the
plaintiffs.
                                -2-
Plaintiffs and their predecessors in interest had, until
1970, utilized this water to irrigate their hay fields and
pastureland.
        In approximately 1971, defendant installed a sprinkler
system on his property and discontinued using the water from
his irrigation ditch.     This action increased the volume of
water flowing onto the Johnson-Ragsdale property and in
turn, provided the plaintiffs' with more water for their
land.    However, the additional water caused extensive flooding
and erosion of topsoil on the Johnson-Ragsdale property.
        To alleviate the destruction of their property, the
Ragsdales built a drainage ditch across the western portion
of their property.    This ditch extended in a southerly
direction until it merged with Evans' drainage and irrigation
ditches.    At the intersection of the Johnson-Ragsdale ditch and
Evans' irrigation and drainage ditches, Evans built a small
earthen dam which diverted all of the water into the Johnson-
Ragsdale ditch, to the eventual exclusion of the plaintiffs' land.
The Ragsdales then filed an application for water appropriation
on all water flowing from the Evans' ditch.     With the dam in
place, all water which normally flowed to the plaintiffs'
land had ceased.     The Ragsdales   have been using the water to
operate their sprinkling system.
        On several different occasions, the small earthen dam
has become inoperable and water would resume flowing across
the Johnson-Ragsdale property, to be later used by the plaintiffs.
To permanently prevent the water from flowing to the plaintiffs,
Evans, in 1975, brought in heavy equipment and built a much
larger, more permanent dam.
     In response, the plaintiffs filed this action in Deer
Lodge County to force the removal of the dam to allow the
water to resume flowing to plaintiffs' land.     Contemporaneous
with filing their complaint, the plaintiffs obtained a
temporary injunction against defendant and scheduled a show

                                      -3-
cause hearing for June 14, 1976.    The hearing was actually
held on June 21, 1976, at which time the parties produced
a total of five witnesses.
      The District Court did not enter an official order after
the June 21, 1976 hearing.     Instead, the District Court judge
apparently requested the parties submit proposed findings of
fact and conclusions of law.
      Defendant submitted his proposed findings and conclusions
on August 5, 1976.   The District Court adopted the defendant's
findings by making a notation at the bottom of the submitted
document, and by signing the order which concluded as follows:
"Adopted this 6th day of August, 1976.     Let Judgment be entered
accordingly."
      On August 19, 1976, thirteen days after the Court adopted
defendant's findings and conclusions, the plaintiffs submitted
their proposed findings and conclusions, and they also filed
an amended complaint.   The amended complaint was substantially
the same as the original except that in the amended complaint
the plaintiffs had joined one additional defendant and also
were more specific in their prayer for relief.
      On September 10, 1976, defendant     filed a motion to
dismiss the amended complaint on the grounds it did not state
a claim upon which relief could be granted.     On September 27,
1976, without further action by the Court, defendant     filed
his   answer,   a general denial of plaintiffs' allegations.
Defendant' answer was the last action taken by either party.
      On November 1, 1976, the District Court entered an order
dissolving the temporary restraining order, denying plaintiffs'
motion for an injunction pendente lite, and adopting the
defendant's findings of fact and conclusions of law.    It is
from this last order that plaintiffs appeal.
                                     -4-
     In their appeal the plaintiffs contend (1) that the
District Court deprived the plaintiffs of substantive
property rights in a summary hearing; (2) that the District
Court made an adjudication of the relative rights and priorities
of the parties; and (3) that the findings of fact and conclusions
of law do not conform to the evidence presented by the
parties.
     Before addressing the specific issues presented by
plaintiffs' appeal, we must resolve one preliminary question.
Some disagreement exists among the parties concerning the
purpose of the June 21, 1976 hearing.     The confusion stems
from certain language used by plaintiffs in their complaint
and show cause order.   A review of the District Court files
shows the prayer in plaintiffs' original complaint sought a
temporary restraining order, a show cause hearing and such
further relief as this Court may deem proper.    Then, in his
order to show cause signed by another District judge, the
plaintiffs used the phrase "show cause why he [defendant]
should not be permanently restrained from interferring with
said waters and diversions." (Emphasis and brackets added).
Based on this language, defendant contends both parties
understood the hearing on June 21st would be on the "merits"
and would finally settle plaintiffs' water right claim.     We
cannot accept this contention.
     It is well settled that a temporary restraining order
is an interlocutory order issued often on an ex parte basis.
The restraining order is intended to preserve the status quo
until a show cause hearing can be held.    Electric Co-op
Inc. v. Ferguson (1951), 124 Mont. 543, 554, 227 P.2d 597.       A
temporary restraining order is effective only for the reasonable
time necessary to give notice and schedule a hearing to determine
the appropriateness of an injunction pendente lite.        State
ex rel. Cook v. Dist. Court (1937), 105 Mont. 72, 75, 69
P. 2d 746.      See also:   Boyer v. Karagacin (1978),       Mont   .
     I   -
                 P.2d        , 35 St.Rep. 939.
     We conclude that plaintiffs, in scheduling the show
cause hearing for June 21, 1976, were trying to follow the
standard procedures set up to obtain injunctions pendente
lite. We can find no support for defendant's position that
the June 21, 1976 hearing was agreed or understood to be a
hearing on the "merits" of plaintiffs' claim.        Absent clear
evidence of an agreement or an understanding, we must assume
plaintiffs intended the hearing to be limited to a finding
on the appropriateness of an injunction pendente lite.
     Having determined the purpose of the June 21 hearing,
we turn now to the merits of plaintiffs' assignments of
error. For convenience, plaintiffs first and third assignments
can be consolidated.        Simply stated, plaintiffs contend the
District Court should not have entered any findings of fact
or conclusions of law.       Plaintiffs take the position that
any findings or conclusions dealing with the merits of their
complaint are premature.       They stress, although extensive
testimony was received on June 21, 1976, the trial court did
not receive enough evidence to resolve the merits of plaintiffs'
claim.       Defendant, on the other hand, contends the evidence
produced at the hearing was sufficient to support the findings
and conclusions of the District Court.
     After a careful examination of the conclusions of law,
we believe plaintiffs are correct and the findings of fact
and conclusions of law should be vacated.        The conclusions, as
adopted by the District Court, provide:
       "Plaintiffs have no water right to the water
       from the Evans ditch either by right of
       appropriation or by adverse use.
       "That an appropriation as to this water was
       filed and completed by Raymond J. Johnson
       and Lillian M. Johnson and is first in time
       to any claim made by Plaintiffs.
       "That Plaintiffs have no right to enter upon
       Defendant Evans property and in any way change,
       divert or alter the ditches located thereon."
       These conclusions were purportedly derived from evidence
presented at the June 21, 1976 hearing and were entered on
November 1, 1976.
       We have already stated that the primary purpose of the
June 21, 1976 hearing was to determine the propriety of an
injunction pendente lite.     It is well established that
substantive property rights cannot be adjudicated in a
summary way.     Ryan v. Quinlan (1912), 45 Mont. 521, 124 P.
512.    The general rule is that title to, or right of possession
of real estate may not be litigated in an action for an
injunction.     Davis v. Burton (1952), 126 Mont. 137, 246 P.2d
236.    In the same vein, water rights should not be resolved
in a preliminary proceeding for injunctive relief.
       The problems inherent in trying the merits of a case at
an injunctive hearing are obvious.     Typically, an injunction,
or a motion for an injunction is filed very early in the
proceedings, usually before discovery has been completed and
often before the pleadings of the parties are complete.      At
such juncture, the District Courts normally do not have
sufficient evidence to conclusively resolve the merits of
the case.    The present proceedings are a good example of why
property rights should not be adjudicated in a summary
fashion.
       The hearing in this case was scheduled for June 21,
1976, only 11 days after the plaintiffs filed their original
complaint.     Indeed, because Rules 30 and 31, M.R.Civ.P.,contain
restrictions as to when discovery can be commenced, it does
not appear that plaintiffs could have been prepared on June
21, 1976, for a final trial on the merits.
     Additionally, we find defendant had not yet filed his
answer on June 21, 1976.     This last fact is significant
because regardless of how defective plaintiffs' first complaint
may have been, under Rule 8, M.R.Civ.P.,    plaintiffs had an
absolute right to amend their complaint prior to the time the
answer was filed.
     Accordingly, we hold plaintiffs' allegations were not
ripe for final decision on June 21, 1976.    The trial court
should have limited its inquiry to the appropriateness of an
injunction pendente lite.    Since its inquiry and subsequent
decision went beyond these limits, the findings of fact
and conclusions of law must be vacated.
     We note that plaintiffs later filed an amended complaint
in this action.   The new complaint raises the possibility
that plaintiffs may recover if they can establish a valid
water right.   Under the circumstances recovery can possibly
be predicated on section 89-801, R.C.M.    1947, which was in
effect during the crucial time periods involved in this case.
That section allows "waste" water to be appropriated if the
requisites of the statute are met.    The plaintiffs, of
course, bear the burden to prove a valid appropriation and
any discussion of the merits of their claim would be premature.
Today's decision simply vacates the findings of fact and con-
clusions of law entered by the District Court.    Additionally,
since plaintiffs did not challenge the denial of their motion
for an injunction pendente lite, the trial court's determination
on the matter is affirmed.
     The order is vacated and this case is remanded to the

District Court for proceedings consistent with this opinion.




We Concur:


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