                                30
                                 1.    82-233

                 IN T - E SUPREME COURT OF T I STATE OF MONTANA
                     II                     IE

                                       1983



GIWNITE DITCH CO., et al.,
                Plaintiffs,



WILLIAM ANDERSON, et al..,
                Defendants.



CHARLES DESCHEEMAEKER, GEORGE PJ.
GAUGER and WILL G. METZ, JR.,
                Petitioners and Xespondents,

      -vs-

LAKRY PIHLAJA,
                Respondent and Appellant.



Appeal from:    District Court of the Thirteenth Judicial District,
                In and for the County of Carbon, The Honorable
                Charles Luedke, Judge presiding.

Counsel of Record:
      For Appellant:
                Anderson, Brown, Gerbase, Cebull                  &   Jones; Andrew J.
                Lensink, Billings, Montana

      For Respondents:
                Ayers & Alterowitz; Arthur W. Ayers, Jr., Red Lodge,
                Montana

      For Arriicus Curiae:
                 Donald D. MacIntyre, Dept. of Natural Resources,
                 Helena, Montana

                                --   -                                     --
                                                                            -
                                Submitted:            January 14, 1983
                                     Decided :        May 5, 1983
         MAY' 5 - 1983
Filed:



                                      --.---     --- -- --   --
                                                             .
                                Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
     This action was instituted in the District Court of the
Thirteenth Judicial District of the State of Montana, County
of Carbon, requesting the District Court to amend a water
rights decree entered in 1970 and to declare petitioners'
water   rights    senior   to    those   of    respondent,    here   the
appellant.   On December 16, 1981, the District Court entered
its order "clarifying" the decree entered in 1970.                   The
effect of the court's order wa.s to find the waters of Clear
Creek to be part of the Rock Creek system, declare the rights
of petitioners in Rock Creek water to be senior to the rights
of appellant, and require appellant to allow Clear Creek
water to flow into Rock Creek so that petitioners' rights
could be satisfied before appellant's rights were exercised.
Appellant appeals from that order.          We affirm.
     The appellant is owner of water rights in Clear Creek,
the earliest right dating to 1910.             Petitioners have water
rights in Rock Creek, dating to 1896 which were decreed in
Granite Ditch Co., et al., v. William Anderson, et al., Cause
No. 275 (Thirteenth Judicial District Court, Carbon County,
August 21, 1903.)    Clear Creek is a tributary of Rock Creek.
    Appellant had obtained a court order issued February 17,
1970,   without    notice,      directing     the   Rock   Creek   water
commissioner to "carry out" the Clear Creek water rights of
appellant "in accordance with the filing thereof, contingent
on water being available for said filings and. subject to
hearing objections of any party contending to be injured
thereby."    The involvement of the water commissioner of Rock
Creek stemmed from the fact that the Clear Creek water rights
were diverted at or near the mouth or outlet of Clear Creek
into Rock Creek, and then carried in the natural course of
Rock Creek for approximately one and a half miles to the
headgate of the High Line Ditch Company, where the water was
again diverted and carried in the High Line Ditch Company
ditch to the land of appellant for irrigation usage.
     As    a    consequence   of     the   court     permission     granted
February 17, 1970, the water commissioner has honored in full
the requests of appellant for water without regard to any
priority in the relationship of Clear Creek water rights to
Rock Creek water rights.           The result is that in times of
water shortage senior Rock Creek decreed water rights are cut
off, while appellant continues to receive water under his
junior     Clear    Creek   appropriated       water     rights.       This
circumstance became known to Rock Creek water users in 1977
for the first time, and three of them filed the petition
which is the basis for the instant action seeking to have the
1970 court order rescinded and, in effect, direct the water
commissioner to subject the Clear Creek water                     rights of
appellant to the priorities of Rock Creek water rights.
     The following issues are presented for review:
     1.    Whether    the   appeal    should    be     dismissed    because
notice of appeal was not timely filed?
     2.    Whether the District Court had jurisdiction under
sections       3-7-213,   3-7-501,    MCA,     to    hear   the    petition
regarding the administration of water right priorities on
Clear Creek and Rock Creek?
     3.    Whether the failure to join other owners of water
rights on Clear Creek requires remand of this cause for
joinder, or alternately dismissal under Rule 19, M.R.Civ.P.?
     4.    Whether the District Court's order is contrary to
Montana law?
      5.   Whether          the District Court's        order   violates    due
process rights of appellant and other Clear Creek water right
owners?
      6.   Whether the District Court's order denies appellant
equal protection of the laws?
      We hereafter treat issues one and two separately and
consolidate issues three through six.
ISSUE 1    --   WHETHER THE APPEAL SHOULD BE DISMISSED BECAUSE
NOTICE OF APPEAL WAS NOT TIMELY FILED?

      Respondents contend that appellant's notice of appeal,
filed April 1, 1982, was not timely and therefore this appeal
should be dismissed.             The premise underlying respondents'
position is that the order entered by the District Court on
December 17, 1981, constituted a final order, from which date
timeliness of appeal under Rule 5, M.R.App.Civ.P.,                    must be
determined.          Respondents further maintain that appellant's
"Motion for Clarification", filed January 19, 1982, does not

suspend the running of time for filing notice of appeal
because     Rule        5,     M.R.App.Civ.P.,         specifically     limits

suspension to motions timely filed pursuant to Rules 50(b)
[motion for judgment notwithstanding verdict] , 52 (b) [motion
for amendment of or addition to findings of fact], or 59
[motion for new trial], M.R.Civ.P.
      Respondents' argument is not well taken.                      Absent an
express determination that there is no just reason for delay
and certification as final judgment, an order adjudicating
the rights and liabilities of less than all parties is not
appealable.          Rule 54(b), M.R.Civ.P.;           Benders v. Stratton
(1982)           Mont   .       , 655 P.2d 989, 39 St.Rep. 2389.            The
December 17, 1981 order which determined only the rights of
the   appellant         vis-a-vis    those   of    respondents        was   not

certified       by    the     District   Court    as    a   final   judgment.
Therefore, this cause was not ripe for appeal until March 4,
1982    when      the   interests   of    - parties,
                                          all             including            an
intervenor, were finally determined.
       Furthermore, under Rule 5, M.R.App.Civ.P.,              the thirty
day period for filing of notice of appeal does not commence
to run until the clerk of court properly serves notice of
entry of        judgment as required by       Rule   77(d), M.R.Civ.P.
Pierce    Packing Co.       v.   District Court of      the Thirteenth
Judicial    District       (1978), 177 Mont.      50,   579        P.2d       760.
Because here the clerk of the District Court did not serve
notice of entry of judgment upon the parties, respondents beg
the question by asserting that the thirty day period provided
under Rule 5, M.R.App.Civ.P.,            has expired, when it has not
yet commenced.          Cf. Rex v. Rex (1982),          Mont   .          ,   649
P.2d 460, 39 St.Rep. 1432, where there was neither a final
judgment nor service of notice of entry of judgment and the
combined factors constituted a jurisdictional defect.
       We hold that the notice of appeal was timely made and
proceed    to examine the substantive issues raised herein.
ISSUE 2    --   DID THE DISTRICT COURT HAVE JURISDICTION TO HEAR
T H I S MATTER?

       Appellant argues exclusive jurisdiction to resolve water
disputes lies with the duly elected water judge of the water
division in which the waterways are located pursuant to
sections 3-7-101, 102, and 3-7-501, MCA, which provide in
pertinent part as follows:
       "3-7-101. Water divisions. To adjudicate existing
       water rights water divisions are established as
       defined in 3-7-102.     A water division shall be
       presided over by a water judge."
       "3-7-102. Water divisions boundaries.     There are
       four water divisions whose boundaries are formed by
       the natural divides between drainages and the
       borders of the state of Montana and which are
       described as follows:
      (1) The Yellowstone River Basin water division
      consists of those areas drained by the Yellowstone
      and Little Missouri Rivers and any remaining areas
      in Carter County   . . ."
      "3-7-501. Jurisdiction.    (1) The jurisdiction of
      each judicial district concerning the determination
      and interpretation of existing water rights is
      exercised exclusively by it through the water
      division or water divisions that contain the
      judicial district wholly or partly.
      (2) No water judge may preside over matters
      concerning the determination and interpretation of
      existing water rights beyond       the boundaries
      specified in 3-7-102 for his division except as
      provided in 3-7-201 and 3-7-213.
      (3) The water judge for each division shall
      exercise jurisdiction over all matters concerning
      the determination and interpretation of existing
      water rights within his division as specified in
      3-7-102 that are considered filed in or transferred
      to a judicial district wholly or partly within the
      division."
      After the instant action was filed on May 12, 1977,
District Judge Jack D. Shanstrom, acting as water judge,
designated the presiding judge of the Thirteenth Judicial
District, Judge Charles Luedke, to be the water judge for
purposes of presiding over the proceedings here at issue.
The   appellant    contends   that   Judge   Luedke   was   without
jurisdiction because the water judge did not comply with
statutory requirements for designating an alternate judge to
serve as water judge.    Appellant relies upon section 3-7-213,
MCA, which provides:
      "3-7-213.    Designation of alternate judge.    The
      water judge may designate any other district judge
      or retired district judge to preside in his absence
      on his behalf as water judge for the immediate
      enforcement of an existing decree or the immediate
      granting of extraordinary relief as may be provided
      for by law upon an allegation of irreparable harm."
      Appellant contends the requirements of section 3-7-213,
MCA, have not been met and that Judge Luedke did not have
jurisdiction.     We find such argument to not be dispositive of

the issue.
     Section     3-7-501 (2),   MCA,    hereinbefore      set    forth,
provides that no water judge may preside over matters beyond
the boundaries of his water division.          The apparent purpose
of the statute is to recognize the parochial nature of water
usage and assure that water judges are conversant with the
history of water usage when making water adjudications.             The
provisions of section 3-7-213, MCA, governing designation of
an alterna.te judge, must be interpreted in conjunction with
the provisions of section 3-7-501.       When the two sections are
integrated we find that the intent of the legislature was to
provide that a district judge, sitting as a water judge,
could not serve beyond the boundaries of his division absent
the showing required by section 3-7-213, MCA.           In other words
Judge Shanstrom could not have called in a district judge
from outside the division to serve as water judge in the
Yellowstone River Basin Water Division without a showing that
there was "an immediate enforcement of an existing decree or
the immediate granting of extraordinary relief."                No such
showing was     necessary   here.      Judge   Luedke    served as   a
district judge with general jurisdiction over water rights
matters and he was located within the Yellowstone River Basin
Water Division.    Judge Luedke clearly had jurisdiction.
CONSOLIDATION - ISSUES - - - 6
              OF       3 THRU
WHETHER THE DISTRICT COURT VIOLATED ANY CONSTITUTIONAL RIGHTS
OF APPELLANT OR ACTED CONTRARY TO MONTANA LAW IN INTERPRETING
THE 1970 WATER RIGHTS DECREE?
     Appellants contentions categorized in issues 3 thru 6
rest upon two bases.        First, appellant assumes that the
adjudication here    at bar, affects people not before              the
court.   Secondly, appellant believes that Clear Creek water
rights can be adjudicated separate and apart from Rock Creek
water rights.    Both contentions fail.
     With respect to the contention that rights not before
the court were being adjudicated, the District Court, in its
memorandum in support of final order, stated:
     "The second principal ground for resistence by
     respondent Pihlaja is his contention that to grant
     the relief requested by petitioners will be
     tantamount to ordering that the separate water
     right adjudication decrees of Clear Creek and Rock
     Creek be administered as one,      which would be
     violative of the due process rights of all of the
     other owners of water rights in Clear Creek.
    "If that were the scope of relief sought by the
    present petitioners, the respondents position would
    be well-taken.    However, the present petition is
    limited to the water and water rights which DeVries
    and Pihlaja rendered subject to this action, the
    Rock Creek cause, by the filing of their original
    petition and invoking Court jurisdiction as to them
    and securing an Order which allegedly affects the
    Rock   Creek   decreed    rights   of   the   present
    petitioners.     Whether the present petition is
    construed as a continuation of the legal momentum
    created by the original petition and Order issued
    thereon, or is construed as a complaint of
    dissatisfied Rock Creek water users under section
    85-5-301, MCA, it is confined to the question of
    the proprieties of the water allocation being made
    by the Water Commissioner under the influence of
    the February 17, 1970 Order.        In that way the
    relief sought by the present petitioners is
    actually   a   matter    of   directing   the   Water
    Commissioner    with    respect    to   the    proper
    interpretation and effect to be given to the
    Language 'contingent on water being available for
    said filings.'     The present petitioners contend
    that such     'availability' should be measured
    according to priority rights vested in Rock Creek
    water right owners and respondent contends that it
    should not.    The issue raised is, therefore, far
    short of any request to administer two separate
    decrees as one."
    We agree with the District Court.         The only rights
affected by the court's order are the rights of the parties
before   the   court.   The   court   held   that   the   proper
interpretation to be given to the February 17, 1970 Order,
was simply that "available water" had to recognize senior
rights in Rock Creek.   This did not administer two streams
and does not affect rights not before the court.
    We now turn our attention to the basic problem involved,
nameiy, a determination of the relationship between the Clear
Creek water in which appellant has rights and the decreed
water rights of petitioners in Rock Creek.
      It is undisputed that Clear Creek is a tributary of Rock
Creek.        As such, its waters belong to Rock Creek to the
extent of prior appropriations.             Woodward v. Perkins (1944),
116 Mont. 46, 147 P.2d 1016; Loyning v. Rankin (1946), 118
Mont. 235, 165 P.2d 1006.
        It is also undisputed that the decreed water rights of
the   petitioners      are   prior     in   time   to   the   Clear   Creek
appropriations acquired by appellants.                  We need not cite
authority for the proposition that "first in time, first in
right" is the controlling principle.                We agree with the
District Court that the 1970 Court Order, applied by the Rock
Creek water commissioner to fulfill junior appropriations
ahead    of    the   prior   decreed    rights     of   petitioners, was
improper.       The District Court was correct in honoring the
senior rights of petitioners in Rock Creek and requiring that
the water rights of appellants be administered so that these
senior rights be given priority.
      We affirm the order of the Di



                                        V
We concur:

  2 4   6h4,&
           " 4
Chief Justice
Mr. Justice Fred J. Weber, respectfully dissents as follows:
        While in general I agree with the legal theories stated
in the majority opinion, I do not agree with the result.
        The   contradiction which      is not clearly      resolved   is
pointed out in the majority quotation from the District Court
opinion which states:
        "The second principal ground for resistance by
        respondent Pihlaja is his contention that to grant
        the relief requested by petitioners will be
        tantamount to ordering that the separate water
        right adjudication decrees of Clear Creek and Rock
        Creek be administered as one, which would be
        violative of the due process rights of all of the
        other owners of water rights in Clear Creek.
    "If that were the scope of relief sought by the
    present petitioners, the respondent's position
    would be well taken     " ...

The order of the District Court does result in rights on
Clear Creek and Rock Creek being administered as one.
        The petition of February 17, 1970, sought approval for
the use of Rock Creek as a conduit to carry Clear Creek water
for approximately one and one-quarter miles.             The 1970 order
does not indicate any intention on the part of petitioners or
the District Court to subject Clear Creek rights to Rock
Creek rights as a result of the application.               Nonetheless,
the District Court in its memorandum stated:
    "That brings us to the basic problem involved,
    namely, a determination of the relationship between
    the Clear Creek water and water rights of
    respondent, and the decreed water rights in Rock
    Creek of the present petitioners."
The District Court then pointed out that the decreed Rock
Creek     rights    are   prior   in   time   to   the    Clear   Creek
appropriations.
    The District Court then made its "clarification" of the
1970 order.        The effect of that "clarification" is to hold
that the request to transport water in Clear Creek subjected
Clear Creek rights to the Rock Creek adjudication.       As a
result, appellant is now required to allow his Clear Creek
water to flow into Rock Creek where it is to be used by Rock
Creek appropriators during times of water shortage.
    As   a   result, for   the parties   to   this action, two
separate streams are administered as one, a result which the
District Court indicated it did not intend.      I do not find

the 1970 petition and order a sufficient basis for that type
of action.
     From the majority opinion, which is founded upon the
principle of first in time being first in right, an owner of
a Rock Creek water right can arbitrarily sue any owner of a
Clear Creek right and restrain his usage of water during
times of shortage.   In the absence of an adjudication which
covers both streams, I do not agree with that conclusion.
