State v. Passmore , 2010 MT 34 ( 2010 )


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  •              I N T H E S U P R E M E C O U R T O F T H E S T A T E O F MONTANA
    
                                            C a s e No. DA 08-0271
                                                                                     STATE IAW L R R
                                                                                               I AY
                                                                                                B
                                             * * * * * * * * * *                          JUL 0 9 2008
    
    K E I T H R. & MARIE E. S W I N G E R                                                OF MONTANA
                  D e f e n d a n t s and A p p e l l a n t s
    
                    v.
    
    GARY E. C O L L I N S
                                                                                    ~d Smith
                  P l a i n t i f f and A p e l l e e                      CLERK OF THE SUPREME COURT
                                                                                STATE OF MONTANA
    
    
    
    
                                                 ON APPEAL TO
    
                   T H E S U P R E M E C O U R T O F T H E S T A T E O F MONTANA
    
                P U R S U A N T T O THE R U L E S O F APPELLANT PROCEDURE
    
             F O L L O W I N G D I S T R I C T C O U R T J U D G E D O U G L A S G. HARKIN'S
    
                                 R U L I N G AND ORDER I N DV-06-724
    
    
    
    
                                      BRIEF O F THE APPELLANTS
    
    
    
    
    K e i t h and M a r i e Swinger                             D o u g l a s D. H a r r i s
    6055 B i t t e r r o o t R o a d                            P. 0. B o x 7937
    M i s s o u l a , M o n t a n a 59804                       M i s s o u l a , M o n t a n a 59807-7937
    Pro Se f o r the A p p e l l a n t s                        A t t o r n e y for A p p e l l e e
                                  CONTENTS
    
    Table of c a s e s                                            I
    
    Table of S t a t u t e s                                     I1
    
    Table of Rules                                               I11
    
    Table of Exhibits                                            Iv
    
    I s s u e s f o r Review                              Pages 1 - 3
    
    Statement of t h e Case                               Pages 4      -   12
    
    Statement of t h e Facts                             Pages 13      -   16
    
    Statement of S t a n d a r d of Review               Pages 17     -    18
    
    Summary of Argument                                  Pages 19      -   20
    
    Argument                                             Pages 21      -   22
    
    Relief Sought                                        Pages 23     -    25
    
    Judgement of Findings of Fact.
       Conclusions of Law and Order                      Pages 26      -   29
    
    
    
    Certificate of Compliance
    
    Certificate of Mailing
    
    
                         Exhibits bound separately in Appendix
                                           TABLE O F CASES CITED
    
    Bauma v. B y n u m I r r i g a t i o n District, 
    139 Mont. 360
    , 364, P.2d 47,
                                               47 ( 1 9 6 1 )        Exhibit # 17 &            Page 17
    
    B o y l a n v. V a n D y k e , 
    247 Mont. 259
    , 264, 
    806 P.2d 1024
     ( 1 9 9 1 )      Page 17
    
    B u t l e r v. G e r m a n n , 
    1067 Mont. 822
     P.2d ( 1 9 9 1 )                             Page 17
    
    C a r b o n C o u n t y v. U n i o n Oil R e s e r v e Oil Co. 
    271 Mont. 459
    , 469,
                 
    898 P.2d 680
    , 686 ( 1 9 9 5 )                                                 Page 17
    
    C e r e c k v. A l b e r t s o n s , Inc. 
    195 Mont. 409
    , 411, 
    637 P.2d 509
    ,
                  520 ( 1 9 8 1 )                                                              Page 21
    
    C h a m b e r s v. Nasco, Inc. U . S . S u p r e m e Court, 111 St. C t . 2123,
                   2133, 
    115 L. Ed. 2d 27
    , 45 ( 1 9 9 1 )                                      Page 23
    
    C h r i s t e n s e n V. B r i t t o n , 
    248 Mont. 393
    , 401-402, 
    784 P.2d 908
    , 913 ( 1 9 8 9 )                                                      Page 17
    
    C i t y M o t o r Co. I n c . v. D i s t r i c t Court, 
    166 Mont. 52
    , 54, 
    530 P.2d 486
     ( 1 9 7 5 )                                                         Page 21
    
    D o w n s v. S m y k , 
    185 Mont. 16
    , 20, 604, P.2d 307, 310 ( 1 9 8 0 )                    Page 21
    
    F a u s t v. U t i l i t y S o l u t i o n s , 2007 M t . 326, 
    340 Mont. 183
    ,
                 
    173 P.3d 1183
                            ( 2007                                    Page 21
    
    F l e m i n g V. F l e m i n g F a r m s I n c . 
    221 Mont. 237
    , 241, 
    717 P.2d 1103
    , 1005 ( 1 9 8 6 )                                                       Page 21
    
    F o y v. A n d e r s o n , 
    176 Mont. 507
    , 511-512, 
    580 P.2d 114
    , 116-11'1
                                                                                   (1978)       Page 23
    
    G o o d o v e r V. L i n d e y ' s , 255 M 430, 444, 
    843 P.2d 765
     Mont. LEXIS
                                              T
                   327; 49 Mont. St. Rep. 1059                           (1992)                Page 21
    
    Holmstrom L a n d Co. V. H u n t e r s , 
    182 Mont. 43
    , 48-49, 
    595 P.2d 360
    , 363                                            (1979)                   Page 23
    
    I n t e r s t a t e Prod. C r e d i t A s s ' n v. D e S a y e s , 
    250 Mont. 320
    , 323,
                       
    830 P.2d 1285
    , 1287                                            (1991)   Page 22
    
    M a r r i a g e o f Nickolaisen, 
    257 Mont. 1
    , 5 , 
    847 P.2d 287
    , 289
                                                                                     (1993)     Page 20
    
    Morton     v. M.W. M. Inc.        
    263 Mont. 245
    , 249 
    868 P.2d 576
    , 579
                                                                       (1994)                   Page 21
    
    P a r e v. Morrison, 
    241 Mont. 218
    , 222, 
    786 P.2d 655
    , 657 ( 1 9 9 0 )                     Page 17
    
    Stickney     v. S t a t e , C o u n t y of Msla, 
    195 Mont. 415
    , 418, 
    636 P.2d 860
    , 862                                                       (1981)    Page 23
    S w i n g e r v. Collins, 1999 M 202, 
    295 Mont. 447
    , 
    984 P.2d 1
     5 1
                                    T                                                 P a g e 6 & 26
    
    Swinger   v. ColLins, No. 01-157, 
    2001 MT 265N
                                          Page 7
    
    T h o r t o n V. S a n g s t a d , 
    263 Mont. 390
    , 401, 
    868 P.2d 633
    , 640 (1994)     P a g e 21
    
    Wareing v. S c h r e c k e n d g u s t , 
    280 Mont. 196
    , 200, 
    930 P. 2
     d 37, 41      Pg. 17 & 22
                                                    TABLE O F STATUTES
    
    25-12-101 - A judgement o r o r d e r in a civil action, except when expressly
           made final b y t h i s code, may be prescribed by t h e Rules of Appellate
           Procedure, a n d not otherwise.                                    (Page 1 6 )
    
    26-1-102 (5) - "Direct evidence" is t h a t which proves a fact within an
           inference o r presumption and which in itself, if t r u e , establishes
           t h e fact. "Circumstantial evidence" cannot be based on testimony only,
           especially when t h e witness h a s an i n t e r e s t in t h e outcome. (Page 14)
    
    26-1-402 - A p a r t y has t h e b u r d e n of persuasion a s to t h e existence of each
           f a c t essential t o t h e claim f o r relief asserted.                   (Page 14)
    
    26-3-205 - Rules of evidence, Rule # 1 0 2 The purpose of evidence is to
           ascertain t h e t r u t h and justly determine t h e proceedings. Rule 103 ( b )
           s t a t e s a n erroneous ruling may r e s u l t from excluding evidence. (Pg. 14)
    
    26-3-301 (2)         -       A l l presumptions a r e disputable                       (Page 13)
    
    26-3-401    -       Relevant evidence determines action                                (Page 13)
    
    27-1-318 - The detriment caused by t h e wrongful occupation of real
           p r o p e r t y is deemed t o be t h e value of t h e use of t h e property
           f o r t h e time of s u c h occupation.                                     (Page 16)
    
    70-1-101 a n d 70-1-303               -   The owner is entitled t o full and unfettered use of
           h i s property.                                                                  (Page 16)
    
    70-16-201       -   The bed of a stream is owned a s it c r o s s e s property         (Page 1 6 )
    
    70-17-112       -   Ditch easements by implication                                     (Page 16)
    
    70-17-112       (5)      -    Attorney fees in successfully prosecuting                (Page 16)
    
    85-2-102 (17)            -    Definitions of surface and ground water             (Page 13 & 28)
    
    85-2-103 ( 2 )       -       Measurement of water a s diverted from source       (Page 13 & 28)
    
    85-2-103 ( 3 ) - Measurement requirement does not change water decreed b y a
           c o u r t prior t o July 1, 1899.                        (Page 13 & 28)
    
    85-2-114 - Prevention of waste, if a person is wasting water, o r using water
           unlawfully, he is s u b j e c t t o judicial enforcement.       (Page 13)
    
    85-2-116 - Legal assistance on water r i g h t s must be preformed by County
           Attorney's office                                                (Page 13)
    
    85-2-125 - Recovery of a t t o r n e y fees by prevailing p a r t y if a water permit
           case is appealed                                                         (Page 15)
    
    85-2-237 - Reopening a n d review of decrees, including d u e to (iii) f r a u d
           and misrepresentation of a d v e r s e party.            (Pages 13 and 28)
                                                    TABLE OF RULES
    
    MONTANA RULES O F EVIDENCE, Title 26
    
        Rule 102      -     The purpose of evidence is to ascertain t h e t r u t h and justly
                            determine t h e proceedings.
    
        Rule 103 ( a ) - An erroneous ruling may r e s u l t from excluding evidence.
    
        Rule 201       -    Judicial notice of fact is not s u b j e c t to reasonable dispute in
                            t h a t it is ( 2 ) capable of accurate and r e a d y determination b y
                            r e s o r t t o o t h e r sources when accuracy cannot be reasonably
                            questioned.
    
        Rule 301 (1) - Presumption t h a t t h e law r e q u i r e s a f a c t be ascertained
                   from previous proceedings is incorrect.
    
        Rule 301 ( 2 ) - A l l presumptions a r e disputable, and may be controverted
                     by a preponderance of evidence c o n t r a r y t o t h e presumption.
    
        Rule 401      -     Relevant evidence has tendency to make t h e existence of a n y
                            fact t h a t is of consequence t o t h e determination of action more
                            probable t h a n without the evidence.
    
        Rule 402 - A l l relevant evidence is admissible.
    
        Rule 607 - The credibility of a witness may be attacked.
    
        Rule 802 - Hearsay is usually prohibited.
    
    
    
    MONTANA RULES O F CIVIL PROCEDURE                       -   Title 25, Chapter 20
    
        Rule 5 ( a )       -       Findings of fact by District Court erroneous
    
        Rule 12 ( c ) - Motion for Judgement on t h e pleadings
    
        Rule 4 1 - Dismissal of Actions
    
        Rule 46    -       Objection to Court Rulings
    
        Ruie 52 ( a )          -    Appealed e r r o r s can o v e r t u r n judgements
    
        Rule 58   -        In Actions without jury, the c o u r t shall find facts specially
                           and s t a t e separately its conclusions of law.
    
        Rule 61   -        Mistakes, inadvertence, excusable neglect, newly found
                            evidence, f r a u d e t c a r e causes for appeal.
    MONTANA RULES OF APPELLATE PROCEDURE - Chapter 2 1
    
        Rule 4 (1) ( B ) - An Interlocutory Judgement is an order t h a t determines
                    a preliminary issue, which enables the court to r e n d e r a final
                    judgement, b u t does not finally decide the case.
    
        Rule 6 (5) - Orders & Judgment that a r e not applicable include those
                   made in a case of contempt judgements except a s provided in
                   section 3 ( j ) .
    
        Section 3 ( j ) states contempt judgements t h a t includes an ancillary order
                    which effects the substantial rights of the parties involved
                    may be appealed.
                                          TABLE OF EXHIBITS
    
    1.   Water Rights of Douglas G. Harkin                          Pages 1 - 4, 14 & 16
    
    2.   $50.00 Receipt f o r 8" closeable c u l v e r t in 1992                 Page 7
    
    3.   Water flow Calculation Chart                                             Page 7
    
    4.   Photos of Blastics pumps, Collins flooding & Swingers driveway 1996       Pg 8
    
    5a. Photos of removal of d e b r i s from Swingers pond                       Page 8
    
    5b. Photos of removal with backhoe & dump t r u c k                           Page 8
    
    6.   Statement of A Gleason f o r 14 h o u r s @ $60.00 October 19, 1996
                       1                                                          Page 8
    
    7.   Findings of fact, Conclusions of Law & o r d e r of December 12, 2000    Pg. 8
    
    8.   Minutes of ruling dated September 11, 2001                               Page 8
    
    9.   Photos of Service call & Damage t o pump a n d pipe May 6, 2006          Page 9
    
    10. Affidavit of Gary Collins filed August 8, 2006                           Page 10
    
    11. $478.00 Receipt f o r new pump May 19, 2007                              Page 10
    
    12. $75.00 B & D Pump Service service call May 31, 2007                      Page 10
    
    13. $3,600.00 Bill from Jerome Drilling Co. J u l y 11, 2007                 Page 10
    
    14. Photos of Collins' s a n d b a g s July 22nd and October 11, 2007        Page 11
    
    15. Collins' list of witnesses & Exhibits filed November 1, 2007             Page 11
    
    16. Collins' Findings of Fact, Conclusions of Law & Order submitted
              by Attorney Douglas Harris November 1. 2007                        Page 11
    
    17. Proposed Findings of Fact & Conclusions of Law submitted b y
             Attorney Douglas Skjelset April 18. 2008                            Page 12
    
    18. Proposed Findings of Fact, Conclusions of Law & Order submitted
             p r o s e by Swingers April 29, 2008                                Page 12
    
    19. Swinger's Motion f o r Summary Judgement on Pleadings filed
            April 29, 2008                                                       Page 12
    
    20. Swingers Brief, with 22 exhibits filed April 29, 2008                    Page 12
    
    21. Minutes & Note of Ruling (Docket # 44)                                   Page 2
    
    
    A.   Order on Contempt proceedings signed May 21, 2008 (Docket # 48) w a s
         included with Appellants Response to Motion to Dismiss Appeal dated
         J u n e 13, 2008
                               ISSUES PRESENTED F O R REVIEW
    
    Did J u d g e Harkin e r r o r in accepting a complaint which had not been filed
    b y t h e County Attorney's office, in claiming a violation had been
    committed p u r s u a n t to t h e Administrative r u l e s of Montana, Title 36
    pertaining t o t h e Codes in Title 85 of t h e Montana Water u s e Act?
    
    When t h e complaint was filed b y Gary E. Collins' new a t t o r n e y on August
    3, 2006, did J u d g e Harkin e r r o r by not disqualifying himself a f t e r
    p r e s i d i n g o v e r t h e easement c a s e in c a u s e # DV-96-83089? (Docket # 1-4)
    
    When both Collins a n d Swingers have decreed w a t e r r i g h t s on Hayes
    Creek, did J u d g e Harkin e r r o r in signing a Temporary Restraining O r d e r
    August 30, 2006 forbidding Swingers to i r r i g a t e s o Collins could d i v e r t
    a l t h e water? (Docket # 5)
     l
    
    Due t o t h e fact S w i n g e r s were unaware of t h e O r d e r until t h e summons
    was s e r v e d on them September 11th to a p p e a r a t a show c a u s e h e a r i n g
    t h e following day, did J u d g e Harkin e r r o r in having Collins' a t t o r n e y
    d r a f t t h e o r d e r "Pendente Lite", signed September 15th. wherein Collins
    did not have to measure t h e water going into his ditch, b u t allowed to
    slightly overflow h i s c i s t e r n a n d use 14 s p r i n k l e r h e a d s 24 h o u r s a day,
    s e v e n d a y s a week? (Docket # 10, # 3, page 2)
    
    Did t h e c o u r t f u r t h e r e r r o r in r e s e r v i n g decision w h e t h e r Swingers could
    pump water from below t h e diversion used by Collins? ( # 5, page 3)
    
    The Swingers obeyed t h e r e s t r a i n i n g o r d e r , a n d informed t h e c o u r t t h e y
    would have a well drilled to supplement t h e i r irrigation needs. After t h e
    well was drilled J u l y 11, 2007 (Exhibit 13), which Collins was unsuccessful
    i n stopping. b u t filed f u r t h e r documents J u l y 25th with a n application
    f o r contempt and writ of assistance: and Swingers filed t h e i r r e s p o n s e
    with a brief and exhibits proving t h e y had not used Hayes Creek w a t e r
    i n 2007 a s c h a r g e d , did J u d g e Harkin e r r o r in i g n o r i n g t h a t evidence?
    
    Swingers Motion t o Dismiss was filed September 14, 2007 a s d o c k e t # 26.
    Did J u d g e Harkin e r r o r in o r d e r i n g a hearing Sept. 24th a s # 27, a f t e r
    which h e denied Swinger's Motion to dismiss October 22, 2007 a s # 29?
    
    Did J u d g e Harkin e r r o r in taking judicial notice of his o r d e r s in Case
    DV-96-83089, and allowing t h a t o r d e r a s evidence, a f t e r reviewing t h e
    Motion f o r Summary Judgement. wherein Swingers had submitted
    evidence t h e y had not committed contempt? (Tr. P 5, L 22 - p g 6, L 19)
    
    Since J u d g e Harkin had t o install a measuring device f o r t h e d i t c h
    s e r v i n g his water r i g h t (Exhibit # 1). did he t h e n e r r o r i n not o r d e r i n g
    Collins to install a measuring device a t his diversion, b u t allowed him t o
    d i v e r t enough water t h r o u g h two o t h e r p r o p e r t i e s a n d two road c u l v e r t s
    a n d continue in a ditch t o overflow his c i s t e r n ? (Tr. P 6, L 22)
    
    I n Lieu of t h e fact J u d g e Harkin had a s e p a r a t e water r i g h t f o r s t o c k a t
     30 gallons a day p e r animal, did he e r r o r in not Confirming t h a t Collins
     had a water r i g h t f o r his t h r e e horses? (Tr. P 9. L 21-25 & P 10, L 1)
    Did t h e Court e r r o r in believing a Wornath-McMahon ditch continued p a s t
    Collins' c i s t e r n ? (Tr. P 10, L 19-21)
    
    Did t h e Court e r r o r in accepting testimony about the changes to Collins'
    system? (Tr. P 11, L 10-20)
    
    In presenting t h e Amended Findings of Fact and informing J u d g e Harkin
     t h a t Collins listed the same 13 Photos taken August 3, 2006, did he
    t h e n e r r o r b y accepting them into evidence of contempt in 2887?
     (Tr. P 16, L 19 - P 18, L 16)
    
    I n lieu of t h e fact Exhibit # 1 proves t h e water r i g h t on Douglas
     Harkin's well of 15 GPM included irrigation, while he filed f o r additional
     irrigation and stock water, did J u d g e Harkin e r r o r in expecting Marie
     Swinger to a g r e e t h a t t h e well they drilled capable of 25 GPM was a
     replacement f o r t h e i r decreed water r i g h t of 96 GPM? (Tr. P 22, L 16-25)
    
    Did J u d g e Harkin e r r o r in not addressing t h e fact Collins had given
    Blastics permission to pump water from Hayes Creek, when t h e y only
    have a provisional r i g h t to irrigate? (Tr. P 27, L 18-23)
    
    Did t h e Court also e r r o r in not addressing t h e fact Reneau's use Collins
    ditch to water t h e i r horses, and they do not have a water r i g h t ? ( p g 27)
    
    Did J u d g e Harkin e r r o r in accepting Collins testimony t h a t he could h e a r
    Swinger's pump from neighbors property across Hayes Creek - some 20
    f e e t away, a n d t h a t t h e creek was d r y below Swingers intake dam a s
    credible in t h e Tr. P 29 L 12-25 to P 31, L 1 & P 41, L 18 & P 43, L 25,
    and t h e Order received May 27, 2008 a s Docket # 48?
    
    When Marie Swinger requested t h e court to take judicial notice of t h e 22
    exhibits e n t e r e d with t h e i r Motion f o r Summary Judgement, did J u d g e
    Harkin e r r o r in denying to do so, a s stated in the minutes of t h a t
    hearing filed a s Document # 44? (page 2)
    
    After being advised of Keith Swinger's Alzheimers, and fact he had not
    been sworn in to testify, did J u d g e Harkin e r r o r in questioning him, and
    f u r t h e r suggesting he was capable of wiring? (Tr. P 62, L 15 -P 66 L 23)
    
    Did J u d g e Harkin e r r o r in proposing t h a t t h e Swingers install an
    electric p i l m p ~verride switch r\i~tside their p r ~ p e f l ~ y ,
                                                       sf                 2.n.d &reccr.g
    Counsel f o r Collins to p r e p a r e t h e o r d e r ? (Tr. P 67 L 14 - P 68 L 22)
    
    Did t h e c o u r t e r r o r in g r a n t i n g a w r i t of assistance from t h e sheriff's
    office a t t h e hearing? (Tr. P 70, L 3-8, and o r d e r # 8, page 4 )
    
    Did the Court e r r o r in t h e assertion # 4 s t a t i n g t h a t Collins testimony
    was direct, consistent and credible in s t a t i n g he saw Swingers d i v e r t
    from Hayes Creek, t h a t he heard t h e i r electric pump operating many
    days, depriving him of t h e water available f o r his s u p e r i o r water r i g h t
    on page 2, lines 14 t h r o u g h 22 of his o r d e r ? (Document # 48)
    
    Did t h e Court e r r o r in stating t h e r e was much more than a
    preponderance of evidence t h a t Swingers took water in defiance of
    Collins' s u p e r i o r water r i g h t , a n d was proof of Swingers civil contempt
    of t h e Court o r d e r s on page 2, lines 22 t h r o u g h line 24?
    
    Did J u d g e Harkin e r r o r s t a t i n g Swingers could no longer take t h e i r
    decreed water from Hayes Creek by means of a pipe a n d electric pump,
    a n d o r d e r i n g them t o have a power pole installed, with an master switch
    installed in a tamper proof box on Swingers p r o p e r t y a t a location
    selected b y Collins a s s t a t e d on Page 3, lines 15 - 19?
    
    Since t h e water r i g h t gained by Douglas Harkin f o r 27 GPM s t a t e d t h e
    amount of appropriation of each p a r t y is t o be computed on t h e stream
    at, o r near, t h e point of diversion of each ditch (Exhibit # 1, page 2).
    did J u d g e Harkin knowingly e r r o r in not o r d e r i n g Collins to install a
    measuring devise where he d i v e r t s water on page 3, lines 20 -21?
    
    Did J u d g e Harkin t h e n e r r o r in s t a t i n g t h e Swingers a r e not t o operate
    t h e i r electric pump diversion (only capable of e i t h e r watering t h e i r lawn
    a n d garden, o r o p e r a t i n g nine s p r i n k l e r h e a d s a t one time) a s a r e
    r e s t r i c t e d from doing s o a s o r d e r e d on page 3, lines 22 - 24?
    
    After allowing Collins t o d i v e r t all available water from Hayes Creek on
    line 21, did J u d g e Harkin f u r t h e r e r r o r in s t a t i n g Swingers a r e to have
    no o t h e r means of diversion from Hayes Creek t h a n t h e pump a n d pipe
    on Page 3, line 28 a n d page 4, line I ?
    
    Did J u d g e Harkin f u r t h e r e r r o r in forbidding a n y diversion f o r flood
    irrigating, o r c r e a t i n g a pond t o s t o r e water b y a n y o t h e r means of
    utilizing Swinger's decreed water r i g h t without f u r t h e r o r d e r of t h e
    c o u r t on page 4, lines 1-3?
    
    Did J u d g e Harkin e r r o r in g r a n t i n g Collins permission to break t h e lock
    with bolt c u t t e r s , o r a n y o t h e r means, to gain access to t h e switch and
    disable Swingers electric pump and diversion from Hayes Creek on page
    4, lines 8-10?
    
    I n Actually giving Collins license to d e s t r o y private property, did
     J u d g e Harkin commit h i s biggest e r r o r in g r a n t i n g a writ of assistance
     enabling Collins t o do so, a n d preventing Swingers from defending t h e i r
     p r o p e r t y in # 8, page 4?
    
    After t h e Swingers filed t h e i r Notice of Appeal, a n d ordered t h e
    t r a n s c r i p t J u n e 2, 2008 a s docket # 49 a n d 50, did J u d g e Harkin f u r t h e r
    e r r o r in i s s u i n g a n o r d e r relating to t h e Motion f o r Summary Judgement
    filed April 29, 2008, a f t e r assuming Swingers had committed contempt?
    
    Did t h e c o u r t conspire with Collin's a t t o r n e y in r e q u e s t i n g Swingers to
    voluntarily withdraw t h e i r Appeal, a n d f u r t h e r filing t h e Motion to
    D i s m i s s to which Swingers responded to J u n e 13, 2008 - with a copy of
    t h e O r d e r of May 27, 2008?
    
    Does t h e Supreme c o u r t have t h e authority t o sanction J u d g e Harkin f o r
    not a d h e r i n g to t h e f a c t s a n d t h e law, f o r accepting accusations a s
    s u r r o g a t e f o r f a c t s in presumption of guilt i n his opinionated judgement;
    o r does he have impunity?
                                        STATEMENT OF THE CASE
    
                                                 Backsround
    
            I n o r d e r to p r e s e n t the facts which have led to t h i s appeal, a l of t h e
                                                                                        l
    
    players involved          must be considered.          The adjudication        of Montana waters
    
    began in 1973, following the Water Use Act passed in 1972.                             KEITH R. a n d
    
    MARIE E.      SWINGER were among t h e first to file t h e i r purchased                     rights a s
    
    proven by t h e number W 888101 assigned.                 Agnes Breuer filed t h e water r i g h t
    
    W   118461 on March          8, 1982, which        was f o r flood irrigation          based    on t h e
    
    predecessor Wm. Boss.            Following a divorce and remarriage, John B r e u e r a n d
    
    Agnes Breuer Chamberlain sold t h e ten a c r e s to Gary and Marjorie Collins
    
    J a n u a r y 14, 1983.      Following t h e i r divorce a n d his remarriage t o Pam, t h e
    
    water r i g h t is now claimed by GARY E. COLLINS.
    
            In   1983   DAVID      L.   PENGELLY       was     the   Supervisor       of   the     Missoula
    
    Department of Natural Resources, a n d while employed t h e r e he a t t e n d e d law
    
    school.       The J u d g e in t h i s case DOUGLAS G. HARKIN had received a water
    
    r i g h t on his well for 15 GPM to s e r v e domestic, irrigation and stock water on
    
    five a c r e s August 17, 1978.        He t h e n f u r t h e r gained 768-149969 f o r irrigation
    
    of 27 GPM from Mill Creek ( n e a r Lolo, M t ) to be measured a t t h e ditch t h a t
    
    d i v e r t e d t h e water; while also obtaining 76H-149970              f o r stock water of        30
    
    gallons p e r day p e r animal unit          -   both of which were based on a d e c r e e of
    
    J u n e 1, 1886.    To prove t h i s fact, t h e Swingers e n t e r t h e s e t h r e e water r i g h t s
    
    a s Exhibit t 1.          O f course David Pengelly         had approved these r i g h t s while
    
    ignoring     Swinger's purchased          water r i g h t i n f a v o r of   Collins by      inserting
    
    "Warnath-McMahon ditch" where t h e old road bed was a p p a r e n t in t h e 1937
    
    aerial photo, and inserting "Hayes a / k / a Buckhouse" on t h e s u r v e y map of
    
    1955.
           Thus Gary Collins retained David Pengelly to r e p r e s e n t him a t t h e water
    
    hearings, even though Montana S t a t u t e s s t a t e d a n a t t o r n e y was not necessary.
    
    It would be considered          hearsay to s t a t e why Water Master Ed Dobson was
    
    demoted and t h e Chief Water J u d g e C. Bruce Loble took his place a t t h e
    
    hearing held J u l y 17, 1998 which Swingers did not a t t e n d d u e to a death in
    
    t h e i r family.   Therein, t h e i r exhibits were sealed and Collins was g r a n t e d a n
    
    1881 priority on t h e wrong source of water.               (The d e c r e e determining Henry
    
    Buckhouse a n d Heinrich Dunschen r i g h t s of farming a n d ranching s u p e r i o r to
    
    those of William E. Bass        and Edward Hayes           was on Buckhouse Creek located
    
    in Section 2, while Hayes Creek is in Section 10.                 Bass had a land g r a n t in
    
    t h e Bitterroot,    b u t supplied t h e portable mill to c u t t h e logs provided by
    
    Hayes, with t h e site "Hayes" clearly i n s e r t e d on maps; b u t most evident was
    
    t h e f a c t t h a t Edward Hayes had a homestead claim in Section 2,               while his
    
    second g r a n t in Section 10 was not received until 1888 - t h e y e a r following
    
    his drowning a n d t h r e e y e a r s a f t e r t h e decree in case 575.
    
           Bare in mind t h a t when t h e easement case was filed, Gary Collins was
    
    r e p r e s e n t e d by Phillip O'Connel, whom conferred with Attorney David Pengelly,
    
    a s proven in t h e Affidavits of Attorney fees submitted.              J u d g e Ed McLean had
    
    been assigned to h e a r t h e case, b u t a Motion f o r substitution to J u d g e Harkin
    
    was filed, and he accepted.           O f course Douglas Harkin was g r a t e f u l f o r t h e
    
    water r i g h t s obtained, a n d David Pengelly immediately took o v e r a s Counsel
    
    f o r Collins, a n d it became " p a y back" time!!
    
           I n both t h e Water Right Appeal and t h e Easement Appeal t h e Swingers
    
    e n t e r e d the following proof of t h e i r purchase:
    
            Edward Hayes Land C l a i m i n Section 2 filed April 16, 1870
                Decree in case 575 was t o water o v e r 100 inches which was
                given to Buckhouse and Dunschen o v e r William Bass (whom only
                supplied t h e portable sawmill f o r t h e logging of Edward Hayes
          Weekly Missoulian article of J u n e 17, 1887 reporting Hayes drowning
    
          Edward Hayes land g r a n t in Section 10 dated J a n u a r y 14, 1888
    
          George Bennett p u r c h a s e of Hayes g r a n t in Section 10 May 13, 1926
    
          George Bennett Water r i g h t to 100 miner inches on Hayes Creek dated
               J u l y 15, 1926
    
          George Bennett deed t o Albert Bakke dated J u n e 22, 1945, including t h e
               water right, l e s s all ditches and canals
    
          Albert Bakke sale of only 33, 4 a c r e s to Harvey Goff dated J u l y 27,
               1948 without conveying a n y portion of the water right.
    
          Albert Bakke sale of t r a c t of land t o Julian Reed dated November 8, 1949
               without conveying t h e water right.
    
          Albert Bakke sale of f o u r t r a c t s of land to Julian Reed March 9, 1956
               wherein the water r i g h t was t r a n s f e r r e d .
    
          Julian Reed sale of 10 a c r e s a n d t h e foreman's house to his widowed
                sister-in-law Gertrude Malone March 15, 1956, without conveying
                a n y water r i g h t ( n o r t h of Hayes Creek now owned by Blastics)
    
          Julian Read Contract f o r Deed t o Keith a n d Marie Swinger dated
                September 15, 1958, which contained the new home with t h e water
                r i g h t s , 1,200 f e e t of irrigation pipe and some farm machinery.
    
          (Julian Reed sold t h a t c o n t r a c t to W. E. Wirth, so t h e deed to Swingers
               dated May 22, 1963 is from him.)
    
                                          MEANWHILE:
    
          Gust Wornath purchased land from Buckhouse h e i r s in Section 2
               October 27, 1948
          Harvey Goff sold Richard McMahon 30 a c r e s J u n e 5, 1954 in Sect. 10
          Richard McMahon sold only 10 a c r e s to John and Agnes Breuer
          Agnes Breuer filed a water r i g h t March 8, 1982
          Breuers sold to Gary a n d Marjorie Collins J a n u a r y 14, 1983
    
         There was no way for a ditch from Hayes Creek to reach t h e Wornath
    
    p r o p e r t y in Section 2, by means of   a "Warnath-McMahon       ditch.      These a r e
    
    proven f a c t s t h a t cannot be disputed and contradicted by any water resource
    
    survey!     But t h e Supreme Court affirmed t h e Water Court's               decision and
    
    Swinger's    were   sanctioned    "for wasting t h e    court's   time"   in    Swinger v.
    
    Collins 1999 M 202, 
    295 Mont. 447
    , 
    984 P.2d 1
    51.
                  T
           I n the easement case filed a s DV-96-83089, J u d g e Harkin simply concluded
    
    t h a t since CoUins had a water right, he had to have access to t h e source and
    
    an    easement      by    implication      was    placed     on    Swingers       property.         Therein
    
    Swingers were o r d e r e d to install a 36 inch g a t e to give him e n t r y on t h e i r
    
    private property.          That o r d e r was also appealed a s case No. 01-157 with t h e
    
    decision not to be cited, b u t filed with t h e Clerk of t h e Supreme Court a s a
    
    noncitable document r e p o r t e d by case title Swinger v Collins 2881 M 265 N.
                                                                              T
    
    The Supreme Court eliminated i s s u e s adjudicated in t h e Water Court while
    
    embracing t h e doctrine of r e s judicata, a n d therein                     refused to review t h e
    
    water r i g h t s issue anew.         The J u s t i c e s affirmed t h e District Court O r d e r a n d
    
    remanded it back for a determination of c o s t s and a t t o r n e y fees.
    
           Therefore in clarifying t h e following i s s u e s t h e Supreme Court raised:
    
    1. Apparently, I n approximately 1993 Swingers removed a gate, impeding
         Collins access to a n d control of t h e diversion point.
    
    2. Swinger's l e t t e r of J u n e 11, 1994 s t a t e d t h e y n e v e r a r g u e d t h e fact t h e r e
         was an easement on t h e i r property.
    
    3. In May 1996 Swingers notified Collins t h e y were denying him f u r t h e r
         access to t h e diversion point and CoUins h a s been unable to control t h e
         water flow to his property.
    
           (1) When Swingers first fenced t h e i r p r o p e r t y t h e y installed g a t e s both
    
    on the north a n d south sides - where t h e y also built a bridge a c r o s s t h e
    
    creek, s o t h a t neighbor children could c r o s s t h e i r p r o p e r t y and go down t h e i r
    
    driveway to t h e only school b u s s t o p a t "Swinger's Lane".                        I n 1992, before
    
    having t h e fence replaced, Swinger's purchased an 8 inch closeable c u l v e r t
    
    which was installed a t the diversion.                  The August 13, 1992 bill of $50.00 f o r
    
    t h i s c u l v e r t is entered as Exhibit # 2.         The flow r a t e s h e e t to measure water
    
    obtained is e n t e r e d a s Exhibit # 3.          (2) In allowing Collins to a d j u s t t h e flow,
    
    of course in 1994 Swingers did not deny t h a t he had access to d i v e r t t h e
    
    water.      Swingers were neighborly, and certainly had no use f o r 100 miner
    inches of water!!                Therefore Swingers e n t e r Exhibit # 4 with 1994 photos
    
    showing Blastic's pump in t h e c r e e k below Swinger's pump and also one in the
    
    ditch     used by       Collins, while       t h e water     diverted to         Collins p r o p e r t y    was
    
    flooding the highway.               (3) But upon Collins own admission, in # 6, page 3 of
    
    findings of fact, he s t a t e d he simply climbed t h e fence o r threw rocks in the
    
    creek    -   which was t h e reason for t h e l e t t e r of May 7, 1996.                    A s a r e s u l t of
    
    his actions t h e s a n d a n d g r a v e l washed down t h e creek, filling Swingers pond
    
    a n d killing t h e fish.         On October 14, 1996 Swingers hired A Gleason to remove
                                                                          1
    
    t h i s material, a n d the photographs of him doing s o a r e entered a s Exhibits 5a
    
    a n d 5b.      A t $840.00 t h i s was v e r y costly a s proven by t h e biLl which is
    
    e n t e r e d a s Exhibit # 6.
    
             The   easement case           continued     and     the    order       prepared       by    Attorney
    
    Pengelly was signed December 12, 2000 a s docket # 158 in t h a t case and we
    
    now include a s Exhibit # 7. I n confirming t h a t o r d e r a n d remanding it back to
    
    the     district     Court to       determine      damages    and    attorney        fees,     Gary     Collins
    
    n e i t h e r p r e s e n t e d any evidence of damages suffered, n o r proof of payment to
    
    his attorneys.           Both Attorney Phillip O'Connell             and David Pengelly                 merely
    
    presented affidavits of t h e i r fees beginning May 22, 1996, and a hearing was
    
    held September 11, 2001 g r a n t i n g them, which is e n t e r e d a s Exhibit # 8.                       The
    
    total    Judgement          of    December    2001     amounted     to    damages        and      legal     fees
    
    amounting t o $28,023.51,             which t h e Swingers paid in total in J a n u a r y 2002.
    
    During       that    time        Swingers   also   had   attorney        fees    and    costs       exceeding
    
    $10,000.00.         They had not only lost t h e i r purchased water right, b u t had a
    
    non-existent easement placed on t h e i r p r o p e r t y a s a deprivation of t h e i r civil
    
    r i g h t s g u a r a n t e e d in t h e constitution; while t h e amount of judgement totaled
    
    more t h a n t h e original c o s t of t h e i r p r o p e r t y in 1958, wherein t h e y were
    
    forced to pay f o r t h e i r p r o p e r t y twice.     That was worse t h a n t h e people whom
    over-extended     themselves in obtaining sub-prime           mortgages and now cannot
    
    afford t h e payment on t h e i r homes.         After t h e Supreme Court refused to
    
    renew t h e water r i g h t s issue, both time and money prevented f u r t h e r appeals.
    
    But Swingers were stUl able to utilize their "junior water right", while David
    
    Pengelly fell to his death in a climbing accident J u n e 13, 2003.
    
          Meanwhile, with Collins obtaining both a water r i g h t and an easement
    
    with little effort, and no cost, he felt he was t h e master in controlling Hayes
    
    Creek.    Therein we jump forward to 2006, following t h e low snow pack d u r i n g
    
    t h e winter.   After attempting to s t a r t o u r pump in May, t h e r e p a i r man found
    
    t h a t t h e electrical connections had been pulled a p a r t and disconnected May
    
    6th; a f t e r which we found something erosive had been poured down t h e pipe,
    
    which fed t h e line to o u r yard and field below, with d e b r i s washed down t h e
    
    c r e e k to Collins diversion; and photographs proving              such a r e e n t e r e d a s
    
    Exhibit # 9.      To add insult to i n j u r y on August 8, 2006 DOUGLAS DONALD
    
    HARRIS filed several documents before Judge Harken in Cause DV-06-724.
    
    (See Footnote l )
    
          The filings included a signed o r d e r f o r a show cause hearing to be held
    
    September 12, 2006, b u t none of them were mailed to Swingers, and t h e y were
    
    completely unaware t h e y had been          filed until t h e y were included with t h e
    
    summons s e r v e d September 11, 2006.        One of t h e documents was t h e Affidavit
    
    of Gary E. Collins with 13 pictures taken August 3, 2006 in a s s e r t i n g Swingers
    
             In explanation of t h i s new "player", Douglas Harris had taken o v e r
    representation of t h e Missoula Area Square and Round Dance Association
    (MARSDA) s u i t when t h e county attempted t o take t h e building t h e d a n c e r s
    had built on fair g r o u n d s property without paying f o r it in 1992. He refused
    t o g o o v e r trial preparations, in suggesting Swingers relax o v e r Labor Day,
    while advising Keith to wear a s u i t and tie to b e t t e r r e p r e s e n t his position a s
    t h e p r e s i d e n t of t h a t corporation, while both he a n d t h e County Attorney
    a r r i v e d in western s h i r t s and cowboy boots. The ploy was exposed t o J u d g e
    Hansen and Harris was reprimanded. There is nothing worse than a vengeful
    a t t o r n e y and, in learning r e s u l t s of previous cases decided against Swingers,
    greedily accepted counsel f o r Gary Collins.
    had taken a l l t h e water available in Hayes Creek.                  This is Court docket # 3,
    
    b u t also e n t e r e d a s E x h i b i t # 10.     With only one day to prepare, Swingers
    
    were obviously not expected to a t t e n d t h i s hearing a s Collins and his attorney
    
    were seated a t t h e d e f e n d a n t s table.      Even more concerning was t h e fact t h a t
    
    J u d g e Harkin had t h e e n t i r e file in t h e easement case DV 96 83089 b r o u g h t in,
    
    when we felt he should have disqualified himself.                          Nevertheless he o r d e r e d
    
    that   the     temporary       restraining         order   remain,   and     Swingers    discontinued
    
    f u r t h e r irrigation from Hayes Creek, and t h u s informed t h e c o u r t t h e y would
    
    have a well drilled f o r use when t h e creek got low.
    
           Swingers did not i r r i g a t e a f t e r September 15, 2006 and had drained t h e i r
    
    system, b u t in May 2007 t h e y found someone had obviously t u r n e d t h e i r pump
    
    on d u r i n g t h e winter a s it was cracked from freezing.                The motor was burned
    
    o u t of course, a n d t h e $480.00 receipt f o r a new pump and motor dated May
    
    17, 2007 is entered a s E x h i b i t # 1 .
                                             1             The bill from B & D Pump service f o r
    
    $75.00 it e n t e r e d a s E x h i b i t # 12, (with t h e telephone estimate given f o r a
    
    pump necessary for t h e well which was added l a t e r a t t h e left.)
    
           That winter t h e r e was even l e s s snowpack, and well drillers were busy,
    
    e i t h e r drilling d e e p e r wells   -   o r f o r new construction - until Jerome Drilling
    
    called to s t a t e they could f i t u s in July 11, 2007 before drilling one f o r t h e
    
    former Justice of t h e Peace whom owns p r o p e r t y north of Collins.                  The bill of
    
    Jerome Drilling is included a s E x h i b i t # 13.
    
           Since Swingers had been forbidden to utilize t h e i r Hayes Creek Water
    
    r i g h t a f t e r September 15, 2006, by t h e time t h e well was drilled, t h e i r lawns,
    
    g a r d e n and fields had become v e r y d r y from lack of water.                 But even though
    
    Collins had witnessed t h e well drilling, and reported it to t h e Conservation
    
    District in attempt          to    have      them o r d e r it   stopped, Swingers were           quite
    
    s u r p r i s e d to find the Attorney f o r Collins file complaints on J u l y 25, 2007, a s
    dockets #      11, 12, 13,       1 4 and     15 - with    one being     for contempt.       Most
    
    bewildering was t h e application for contempt, which                  Swingers attempted to
    
    have explained in several documents they filed, b u t with NO justification given
    
    b y e i t h e r t h e Court o r Attorney Harris.      The hearing s e t by J u d g e Harkin was
    
    on t h e Contempt c h a r g e s only, a s ordered in docket # 27, 33 & 35; which had
    
    to be re-scheduled d u e to Keith Swinger having Doctor appointments and t e s t s
    
    which led to being diagnosed with dementia leading to Alzheimers.                     Keith had
    
    t r i e d v e r y hard to f o r g e t t h e e v e n t s t h a t had occurred and, in doing so,
    
    unfortunately lost memory of o t h e r dates and events!              (See Footnote 2,
    
          Next Swingers e n t e r photographs showing t h e enormous bags filled with
    
    s a n d a n d gravel which Collins placed in Hayes Creek by July 22, 2007, a s well
    
    a s one taken October 11th where he merely opened them a n d allowed t h e
    
    c o n t e n t s to flow down t h e creek, t o f i l l Swingers pond a s Exhibit # 14.
    
            But   since both       s i d e s were   ordered t o   submit their I s s u e s of   Fact,
    
    Conclusions of      Law a n d Order t o Judge Harkin's               secretary, Swingers now
    
    enter    Collins   list   of     Witnesses      and   Exhibits   -   which   includes    the     13
    
    photographs t a k e n on August 3 r d t h e year before - a s Exhibit # 15.                    Next
    
    t h e y e n t e r t h e I s s u e s of Fact, Conclusions of Law and Order compiled by
    
    Attorney Harris on November 1, 2007 a s Exhibit # 16 -                  where t h e f a c t s were
    
    fabricated and t h e r e a r e no citations to prior cases in t h e conclusion because
    
    he thoroughly expected t h e o r d e r to simply be signed.
    
            Swingers did not d a r e attend t h e hearing without counsel, and retained
    
    Douglas Skjelset t o r e p r e s e n t them.     The file copy of his Proposed I s s u e s of
    *     Keith's loss of memory w a s a p p a r e n t to relatives, friends and even
    repairmen t h a t had to replace chain saw blades, o r s t a r t mowers he had
    forgotten how t o do. But when Marie was asked how s h e managed s h e would
    state, "Keith still remembers t h a t he loves me, even if he has forgotten why".
    Fact and Conclusions of Law (without a n o r d e r , a s signed b y Skjelset) was
    
    picked u p April 17, 2008 a f t e r h e had left f o r t h e day - with a note on t h e
    
    bottom to be filed 4/18/08, is attached a s Exhibit              gi   17.   In # 5 of his f a c t s
    
    he actually stated t h a t Swingers had defied t h e c o u r t o r d e r in the summer of
    
    2007, a n d was t h e final blow in o u r notice of dismissing him filed April 29,
    
    2888.     The Amended I s s u e s of Fact, Conclusions of Law and Order Swingers
    
    submitted to Harkin's s e c r e t a r y a r e entered a s Exhibit # 18.           Swingers also
    
    filed a Motion f o r Summary Judgement on t h e Pleadings which t h e y e n t e r a s
    
    Exhibit    # 19,   with       a   Brief   containing   22   exhibits    proving   they   had   not
    
    committed contempt in disobeying t h e temporary r e s t r a i n i n g o r d e r which t h e y
    
    e n t e r a s Exhibit # 20.       (See Footnote 3,
    
            I n reference   to t h e o r d e r signed May 21, 2888 which was e n t e r e d a s
    
    Exhibit A in Swinger's response to t h e Motion to D i s m i s s filed b y Collins, t h e y
    
    now e n t e r t h e minutes of t h a t May 5th hearing a s Exhibit # 21.
    
    
    
    3           This is t h e Motion t h a t J u d g e Harkin s t a t e d was briefed in t h e o r d e r
    dated J u n e 4, 2008, following t h e May 5th hearing covering t h e i s s u e of
    contempt.        After being in business in Missoula f o r o v e r 25 y e a r s without
    having a single complaint filed against them, n o r t h e necessity to file a n y
    Liens f o r unpaid merchandise supplied, the Swingers contend t h i s case is b u t
    one example of t h e numerous a b u s e s of authority reported.                  But Swingers
    must appeal to t h e justices of t h e Supreme Court t o determine i f t h i s is
    p r o p e r protocol in District Court proceedings!
                  FACTS RELEVANT T THE ISSUES PRESENTED FOR REVIEW
                                  O
    
    
    I.    Despite t h e fact t h a t 85-2-116     MCA of The Water Use Act provided                 that
    
    legal assistance must be preformed by t h e County Attorney's office, and not
    
    b y an attorney representing a landowner in filing a complaint, t h e r e was no
    
    clear and supporting evidence submitted by Collins. (Doc. 1-4)
    
            A.   Photos entered with Collins' Affidavit do not constitute evidence
                 t h a t a violation h a s been committed. (Docket # 3)
    
            B.   J u d g e Harkin e r r e d in accepting t h e complaints filed August 3, 2006
                 and signing t h e Temporary Restraining Order August 3, 2006.(D. # 5)
    
            C.   This became a p p a r e n t in his s u r p r i s e t h a t Collins had not filed t h e
                 well drilling complaint on page 33, line 12 t o page 34 of t h e
                 transcript.
    
    11.   The findings of fact of t h e District Court a r e clearly erroneous within t h e
    
    meaning of Rule 5 ( a ) M.R.Civ.P.         (Order, page 2, Lines 11-13 of docket # 48)
    
            A.   Collins did not object to Swingers water r i g h t until J u n e 3, 1993.
                 He t h e n subdivided his property in 1994, with his home and
                 outbuildings on 3.23 acres, and his field containing 6.77 acres.
                 He lost his agricultural s t a t u s in t h e s u b s e q u e n t 1997 appraisal,
                 w h i l e on page 9, Lines 16-20. Collins admitted irrigating 7 a c r e s of
                 g r a s s p a s t u r e - b u t used to have alfalfa, before obtaining damages
                 for lost hay, which he stated was 10 tons of hay p e r y e a r on page
                 10. line 4.
    
            B.   The measurement of water s t a t e s 100 miner inches is equivalent t o
                 18.7 gallons p e r second p u r s u a n t to 85-2-103 ( 2 ) MCA. Gary Collins
                 has only a 120 GPM water r i g h t f o r irrigation only. ( h i s exhibit # 1)
    
            C.   Waste of water means unreasonable loss through t h e design o r
                 negligent operation of the distribution p u r s u a n t to 85-2-102 (pg. 17);
                 while Collins s t a t e d his d i r t cistern holds 2,500 gallons of water, and
                 is 6' deep and 12' wide on page 10, lines 16-17.
    
            D.   Decreed water shall be measured according to t h e law in force a t
                 t h e time the decree was made, p u r s u a n t to 85-2-103 ( 3 ) MCA, y e t
                 Collins has absolutely no measuring device in t h e ditch from
                 Hayes Creek on Swinger's property.
    
            E.   Prevention of water waste is covered               in 85-2-114 MCA, while Collins
                 admitted using a 5 HP pump on page                 11, line 1 to operate 14
                 s p r i n k l e r heads, b u t could pump t h e   cistern d r y in 10-15 minutes
                 on page 15, lines 13-24, which t a k e s          4 - 5 h o u r s to fill back u p on
                 page 19, lines 23-25.
                 If Collins raised hay he had t o file a Schedule F from 1983
                 t h r o u g h t h e period h e claimed damages f o r t h i s loss, b u t Collins
                 t h e n claimed $2,317.00 f o r lost hay production a n d wasted fertilizer
                 a n d weed control on page 3 of Exhibit B e n t e r e d with t h a t appeal i n
                 c a s e 01-157 (2001).
    
                 Then Collins s t a t e d Swingers could not operate t h e i r system legally
                 (without using Hayes Creek) because t h e y could only pump 25 GPM
                 o u t of t h e i r well on page 22. Lines 3-6.
    
    111.   The Court misdirected t h e n a t u r e of t h e evidence. (Order, p a g e s 2-4)
    
            A.   Direct evidence is t h a t which proves a fact without a n y inference o r
                 presumption a n d which i n itself, if t r u e , establishes t h e f a c t
                 p u r s u a n t to 26-1-102 ( 5 ) MCA. Circumstantial evidence c a n n o t be
                 based on testimony, especially when t h e witness h a s a n i n t e r e s t in
                 t h e outcome.
    
                 26-3-301 ( 2 ) MCA s t a t e s all presumptions a r e disputable a n d
                 may be c o n t r o v e r t e d by a preponderance of evidence c o n t r a r y to
                 t h e presumption.
    
                 26-3-401 M A s t a t e s r e l e v a n t evidence h a s t h e t e n d e n c y t o make
                              C
                 t h e existence of a n y fact t h a t is of consequence t o t h e
                 determination of action more probable t h a n without t h e evidence.
    
                 26-3-402 MCA s t a t e s all relevant evidence is admissible, b u t t h e 22
                 exhibits Swingers e n t e r e d a t t h e hearing a r e not listed by t h e Court
                 Reporter in t h e t r a n s c r i p t .
    
                 The Court did not question where t h e Wornath-McMahon d i t c h e n d s
                 t h a t s u p p o s e d l y r u n s p a s t Collins diversion on page 10, lines 19-20.
    
                 Rather t h a n accepting t h e evidence, t h e J u d g e i n t e r r u p t e d with
                 questioning i n s e r t e d o r his own t h o u g h t s and s u g g e s t i o n s a s proven
                 i n t h e T r a n s c r i p t on p a g e s 22 - 29 in stating, "you don't need t h e
                 creek. You g o t a well. That's really wonderful!" on page 24, lines
                 9-11; while Swinger's Exhibit # 1 p r o v e s t h a t Douglas Harkin also
                 had a well, b u t applied f o r both irrigation a n d stock water r i g h t s
                 on M i l l Creek.
    
                 Then in Voir Dire beginning on page 39 he questioned Gary Collins
                 a b o u t how Swinger's,irrigation system works, s t a t i n g he knew how
                 Collins' system worked on lines 15-16; while he t h e n actually
                 s u g g e s t e d how to r e s p o n d which continued on page 43.
    
                 H e also felt h e would help t h e Applicant/Plaintiff by a s k i n g what
                 t h e photo was i n t h e exhibit on Page 58, line 22 t h r o u g h page 59,
                 Line 15, where he assumed t h e photo of Blastic's pump i n t h e c r e e k
                 was actually Swingers.
    
                 I n o r d e r to p r o v e contempt in t h e case now being appealed, Collins
                  had to submit s u b s t a n t i a l credible evidence t h a t Swingers pumped
                 water from Hayes Creek a f t e r September 2886, a s s t a t e d in t h e
                 application filed J u l y 25, 2007. ( a s a s s e r t e d s e v e r a l times i n t h e
                 t r a n s c r i p t a n d e n t e r e d i n docket # 13)
    
            J.   The Court was aware t h a t Collins attempted t o s t o p t h e well drilling
                 on J u l y 11, 2007, a n d t h a t it was used i n J u l y and August of 2007.
    
            K.   Simply accepting Collins testimony of h e a r i n g Swinger's pump
                 r u n n i n g s e v e r a l times a n d t h a t Hayes Creek was d r y below, a s
                 a s s e r t e d s e v e r a l times according t o t h e t r a n s c r i p t , was a
                 manifest a b u s e of discretion by t h e Court.
    
            L.   A p a r t y has t h e b u r d e n of persuasion a s t o t h e existence of each
                 fact essential to t h e claim f o r relief a s s e r t e d p u r s u a n t t o 26-1-402
                 MCA i n o r d e r f o r a W r i t of Assistance to be g r a n t e d .
    
            M.   Refusing to t a k e judicial notice of t h e exhibits included with
                 Swinger's Motion f o r a Summary Judgement filed April 29, 2008 was
                 an a c t of bias a n d opinionated judgement b y t h e court.
    
    
    IV.    I n a l actions t r i e d upon t h e f a c t s without a j u r y , t h e c o u r t shall find
                l
    
    t h e f a c t s specially and s t a t e s e p a r a t e l y its conclusions of law t h e r e o n a n d t h e
    
    judgement e n t e r e d p u r s u a n t to Rule 58 M.R.Civ.P.
    
            A.   Collins is bound b y his own evidence, a n d c a n n o t use p h o t o g r a p h s
                 taken August 3. 2006 t o prove Swingers committed contempt of t h e
                 c o u r t o r d e r in J u l y a n d August 2007.
    
            B.   Collins' b u r d e n of proof d e p e n d s on credible evidence, a n d c a n n o t
                 wait until a d r y y e a r a n d rely on o r d e r s i n t h e easement c a s e
                 DV-96-83089 in again expecting damages a n d a t t o r n e y fees.
    
    
    V.    There was no clear and s u p p o r t i n g s t a t u t e s t h a t enabled t h e C o u r t t o
    
    o r d e r Swingers to allow Collins control of t h e i r p r o p e r t y .        (Order, d o c k e t 48)
    
            A.   The Court o r d e r e d a locked switch box installed on a power pole on
                 a location chosen b y Collins t h a t h e could control. ( # 6, page 3)
    
            B.   The Court s t a t e d if Collins could not unlock t h e box, h e was t o u s e
                 bolt c u t t e r s t o do so, and f u r t h e r allowed him t o disable Swinger's
                 pump. ( # 8, page 4)
    
            C.   Giving Collins t h e r i g h t t o e n t e r p r i v a t e p r o p e r t y , and d e s t r o y
                 equipment belonging t o Swingers is a violation of t h e protection of
                 p r o p e r t y ownership g u a r a n t e e d in t h e U. S. Constitution.
    
            D.   Providing Collins with a W r i t of Assistance b y t h e Sheriff's
                 d e p a r t m e n t is a n invasion of privacy which denies t h e peaceful
                 enjoyment e v e r y p r o p e r t y owner is entitled to. ( # 8, page 4 )
           E.   Swingers have been wrongfully enjoined from utilizing t h e i r
                purchased water r i g h t ( # 7, page 3) while a t t o r n e y fees a r e to be
                awarded to t h e prevailing p a r t y p u r s u a n t to 85-2-125 MCA.
    
           F.   The Court r e s e r v e d t h e complaint f o r damages and Award of
                a t t o r n e y fees f o r l a t e r hearings in t h e t r a n s c r i p t page 70,
                lines 9 - 13 and # 9, page 4 of t h e o r d e r .
    
    
    VI.   The District Court o r d e r lacks support. (Entire Docket # 48)
    
           A.   The owner is entitled to full and unfettered use of his p r o p e r t y a s
                provided i n 70-1-101 and 70-1-301 MCA.
    
           B.   The bed of a stream is owned where it c r o s s e s p r o p e r t y p u r s u a n t to
                76-16-201 MCA.
    
           C.   Ditch easements by implication a r e covered in 70-17-112 MCA
    
           D.   Attorney f e e s of successfully prosecuting p u r s u a n t to 76-17-112 ( 5 )
    
           E.   The Easement case DV-96-83089, which was upheld by t h e Supreme
                Court in case 01-157 only applied to t h e ditch on Swinger's
                property.
    
           F.   The Court lacked jurisdiction to allow Collins f u r t h e r intrusion on
                Swinger' p r o p e r t y , by marching to t h e beat of his own drummer i n
                issuing o r d e r s which denied Swingers t h e private and peaceful
                enjoyment of t h e i r property.
    
           G.   J u d g e Harkin was familiar with locked g a t e s f o r the t h r e e persons
                obviously using M i l l Creek a s proven in t h e t r a n s c r i p t on page 67,
                lines 14-17.
    
           H.   I t became obvious t h a t t h e outcome of each hearing was pre-
                determined by J u d g e Harkin, in collusion with Attorney Harris,
                by t h e v e r y f a c t he had him write t h e o r d e r s a s proven in t h e
                Transcript on page 70, lines 4-8.
    
           I.   J u d g e Harkin made his own decision based on accusations s u r r o g a t e
                 f o r f a c t - t h e r e b y presuming guilt, when evidence proved innocence.
    
           J.   The wrongful occupation of real p r o p e r t y is deemed to be t h e value
                of t h e use of t h e p r o p e r t y f o r t h e time of s u c h occupation p u r s u a n t
                to 27-1-318 MCA.
    
           K.   A judgement o r o r d e r i n a civil action, except where expressly made
                final by t h e code, may be prescribed b y t h e Rules of Appellate
                Procedure, and not otherwise, p u r s u a n t t o 25-12-101 MCA.
                                            THE STANDARD OF REVIEW
    
    
            The s t a n d a r d of review of a District Court's findings of f a c t is s e t f o r t h
    
    in Rule 52 ( a ) M.R.Civ.P,             which provides t h a t in all actions t r i e d upon t h e
    
    facts        without a     jury,    the     c o u r t shall   find   the facts   specially      and      state
    
    separately         its conclusions of law thereon, a n d judgement shall be e n t e r e d
    
    p u r s u a n t to Rule 58.      This c o n s i s t s of t h e following considerations:
    
            1.     The Supreme Court will review t h e record t o s e e if t h e f i n d i n g s a r e
    
    s u p p o r t e d by s u b s t a n t i a l evidence.
    
            2.     If t h e f i n d i n g s a r e s u p p o r t e d by substantial evidence t h e Supreme
    
    Court will determine if                t h e Trial Court misapprehended t h e             effect of        the
    
    evidence.
    
            3.     If s u b s t a n t i a l evidence exists and t h e effect of t h e evidence h a s not
    
    been misapprehended, t h e Supreme Court may still determine a finding clearly
    
    e r r o n e o u s if a review of t h e record leaves t h e c o u r t with a definite a n d f i r m
    
    conviction t h a t a mistake              h a s been      committed in    former appeals i n citing
    
    Wareing v. Schreckendgust (1996). 
    280 Mont. 196
    , 202, 930 p.2d 37, 41; a n d
    w h e t h e r t h e Trial Court i n t e r p r e t e d t h e law correctly in citing Carbon County
    
    v. Union Oil Reserve Oil Co. (1995). 
    271 Mont. 459
    , 469, 
    898 P.2d 680
    , 686.
    
            4.      The findings of           t h e District Court must be based             on s u b s t a n t i a l
    
    evidence,        a n d will be      r e v e r s e d if   a clear preponderance      of     t h e evidence
    
    s u p p o r t s contradictory findings, in citing t h e c a s e s Boylan v. VanDyke (1991).
    
    
    247 Mont. 259
    , 264, 
    806 P.2d 1024
    : Pare v. Morrison (1990), 
    241 Mont. 218
    , 222,
    
    
    786 P.2d 655
    , 657 and Christensen v. Britton (1989). 
    240 Mont. 393
    , 401-402, 
    784 P.2d 908
    , 913.
    
            5.     I n t h e case Butler v Germann, 
    822 P.2d
    1067, Mont. 1991, d i s t r i c t
    
    court entered a            permanent injunction and awarded                 "the p r o p e r t y owners"
    
    damages a g a i n s t t h e d e f e n d a n t s for i n t e r f e r i n g with a ditch easement because
    they had a lease credit proving lost hay production.         In this appeal the
    
    Supreme Court is obligated     to ascertain if the hearings     held and o r d e r s
    
    signed were based on the law, o r due to animosity, prejudice and possibly
    
    retaliation in expecting f u r t h e r hearings on damages and attorney fees a s a
    
    "final judgement".
                                                    BRIEF SUMMARY
    
    
            Swingers contend t h a t I n violation of t h e i r r i g h t of p r o p e r t y ownership,
    
    their    exhibits proving             they    had   purchased     the   Hayes   Creek    water   right
    
    September 15, 1958 were                  sealed by      the   Water Court J u d g e    Loble.    Their
    
    exhibits proved t h a t t h e 1881 decree in case # 575 was on BUCKHOUSE CREEK.
    
    The exhibits also proved t h a t Gust Wornath l a t e r purchased land                       from the
    
    Buckhouse heirs i n Section 2 - But Collins was g r a n t e d a s u p e r i o r water r i g h t
    
    in Section 10 based on t h a t 1881 decree.
    
            I n t h e s u b s e q u e n t easement case in District Court Collins was g r a n t e d a n
    
    easement by implication - with conjecture being t h a t since he had a water
    
    right, h e had to have access to t h e source.                   Collins' only argument was t h a t
    
    his predecessor,          Harvey Goff, had purchased land from Bakke in 1948 which
    
    had originally been owned by George Bennett.                         But t h e previous deed from
    
    Bennett t o Bakke dated J u n e 22, 1945, which described t h e land conveyed,
    
    expressly stated, "together with a l water r i g h t s t h e r e t o appertaining,
                                      l                                                                the
    
    r i g h t of way of t h e Northern Pacific Railway Company, t h e County of Missoula,
    
    and a l ditches. canals
         l                                and transmission lines."
    
            In   awarding Collins both a s u p e r i o r water r i g h t and an easement on
    
    Swingers p r o p e r t y f o r a ditch, Swingers were also ordered to pay damages
    
    due to t h e f a c t Collins w a s unable to c u t hay on t h e                 same few a c r e s he
    
    p a s t u r e d t h r e e horses, despite t h e f a c t he failed to prove t h a t hay had e v e r
    
    been     grown on t h a t land;              a s well a s his a t t o r n e y fees -   with t h e total
    
    judgement of $28,023.51 paid in J a n u a r y 2002 - a f t e r Swingers had also paid
    
    t h e i r own a t t o r n e y fees.
    
            But r e g a r d l e s s of gaining both a non-existent water r i g h t and easement,
    
    Collins was still unable to grow hay, and because of former c o u r t o r d e r s , felt
    he could again obtain damages from Swingers - a n d t h e a t t o r n e y f e e s r e q u i r e d
    
    to do so.          Collins and his attorney Douglas Harris feel t h e y have achieved t h e
    
    f i r s t s t e p in having J u d g e Harkin find Swingers in contempt; b u t t h e c o u r t
    
    sanctions on contempt a r e usually a fine o r time s p e n t i n jail, a n d certainly
    
    does not consist of o r d e r s giving Collins control of Swingers p r o p e r t y                                           -   with
    
    a writ of assistance from t h e Sheriff's office.                                     This is not justice,                    but a
    
    blatant a c t of retribution b y a District Court J u d g e                              -   whether o u t of e n v y o r
    
    revenge        -   f o r which J u d g e Douglas Harkin should be publicly sanctioned by
    
    t h e Supreme Court.
    
            A s proof t h a t t h i s case should not have been heard in District Court, was
    
    t h e f a c t Collins could not file the complaint attempting to p r e v e n t t h e well
    
    being     drilled on          Swinger's               property,         b u t it was r e f e r r e d         to t h e       County
    
    Attorney's office - with t h e charge being drilling a well without a permit.                                                        Of
    
    c o u r s e Collins testified of observing it being drilled, and despite t h e f a c t
    
    Swingers had submitted evidence t h a t both S t a t u t e s 70-1-101 a n d 70-1-103, a s
    
    well a s 70-16-           301 proved t h a t water below t h e g r o u n d                                belonged           to the
    
    p r o p e r t y owner, t h e y were refused to be entered, and t h e j u r y o r d e r e d to
    =kiAn
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    v e r d i c t s f o r both Keith a n d Marie                     -     and each assessed t h e fine, plus j u r y
    
    costs.
    
            I n reviewing t h e adequacy of t h e findings of fact a r r i v e d a t i n t h i s c a s e
    
    the     Supreme          Court       must         examine            whether    they     were        comprehensive                 and
    
    pertinent          to   provide        a basis f o r                  the   decisions    and       whether           they        were
    
    s u p p o r t e d by substantial evidence, citing Marriage of Nikolaisen (1993), 
    257 Mont. 1
    , 5, 
    847 P.2d 287
    , 289.                 The Supreme Court must also determine t h e
    
    riparian r i g h t s of land owners in caring f o r t h e stream and b a n k s f o r flood
    
    protection on private property.
                                                ARGUMENT
    
          This argument is e n t e r e d p u r s u a n t to Rule 23 ( a ) ( 4 ) M.R.App.P          with
    
    citations to authority, procedural and evidentiary issues.                  I t r e p r e s e n t s an
    
    ongoing dispute between t h e parties whom have been adjudicated water r i g h t s
    
    on t h e same source, a n d a s such is similar to Goodover v. Lindeys (1992) 
    255 Mont. 430
    , 444, 
    843 P.2d 765
     Mont. LEXIS 327; 49 Mont. St. Rep. 1059. cited in
    
    Exhibit # 17 and # 18 Conclusions of Law.
    
          The Montana Water Use Act did not create a private r i g h t of action to
    
    enforce t h e civil penalties of t h e Act.          Therefore a landowner cannot hire
    
    private counsel to file a civil complaint against a n o t h e r landowner, a s r e p o r t s
    
    of a n y violations of t h e Water Act o r DNRC r u l e s must be submitted to t h e
    
    County Attorney in citing Faust v Utility Solutions, 2007 M 326, 
    340 Mont. 183
    ;
                                                               T
    
    
    
          Rule 54 ( a ) M. R. Civ. P s t a t e s every final judgement should g r a n t relief
    
    to which t h e p a r t y in whose favor it is r e n d e r e d is entitled, even if t h e p a r t y
    
    has not demanded such relief in t h e party's pleadings.               This relief considers:
    
    1) t h e consistency within t h e statute, 2 ) t h e i n t e n t of t h e legislature, 3) t h e
    
    avoidance     of   an   absurd     result    and    4)   the   agency     charged       with      its
    
    administration.
    
          Nevertheless, a f t e r initially filing a Motion t o Dismiss September 14, 2007,
    
    t h e Swingers filed a Motion f o r Summary Judgement April 29. 2008. with t h e i r
    
    Brief e n t e r i n g 22 exhibits proving they had NOT committed contempt.                   These
    
    a r e docket # 41 and 42, a n d entered a s t h e i r Exhibits # 19 & 20.                 Therein,
    
    t h e y cited t h e following applicable cases:
    
    City Motor Co. Inc. v District court, 
    166 Mont. 52
    , 54, 
    530 P.2d 486
     (1975)
    Cereck V. Albertsons Inc, 
    195 Mont. 409
    , 411, 
    637 P.2d 509
    , 520 (1981)
    Downs v. Smyk, 
    185 Mont. 16
    , 20, 
    604 P.2d 307
    , 310 (1980)
    Morton v. M.W.M. Inc., 
    263 Mont. 245
    , 249, 
    868 P.2d 576
    , 579 (1994)
    Fleming v. Fleming Farms Inc., 
    221 Mont. 237
    , 241, 
    717 P.2d 1103
    , 1105 (1986)
    Thorton v. Songstad, 263. Mont. 390, 401 
    868 P.2d 636
    , 640 (1994)
            The exhibits which were presented have provided evidence and t h e firm
    
    conviction t h a t a mistake has been made by Judge Harkin in case DV-06-724 -
    
    both b y ordering a Temporary Restraining Injunction August 3, 2006 and in
    
    t h e o r d e r s following t h e May               5, 2008   contempt hearing, in f u r t h e r citing
    
    W a r e i n g v. S c h r e c k e n d g u s t , 
    280 Mont. 196
    , 202, 
    930 P.2d 37
    , 41 (1996), a n d t h e
    
    Supreme Court must review t h e Court's conclusions of law in determining, 1)
    
    whether          the        Swingers         committed    contempt;     and    2)     if     Judge   Harkin's
    
    interpretation of sanctions f o r contempt was correct in citing C a r b o n C o u n t y
    
    v. U n i o n R e s e r v e Coal Co., 
    271 Mont. 459
    , 469, 
    898 P.2d 680
    , 686.
             According to the Rules of Civil Procedure, the findings of t h e District
    
    Court must be based on substantial evidence, and m u s t be reversed i f a clear
    
    preponderance of t h e evidence s u p p o r t s contradictory findings.                        The Swingers
    
    contend t h e Courts' findings a r e clearly erroneous u n d e r the t h r e e p a r t t e s t
    
    enunciated in I n t e r s t a t e Prod. C r e d i t Ass'n.       v DeSayes, 
    250 Mont. 320
    , 323, 
    830 P.2d 1285
    , 1287, which included attorney fees when a p a r t y has acted in bad
    
    faith, vexatiously, wantonly and for oppressive reasons a s Collins has.                                 The
    
    Conclusions of Law in t h e Order signed by J u d g e Harkin December 12, 2002,
    
    s t a t e in # 1 on page 6, "Goff's acquired a ditch easement by implication across
    
    t h e parcel retained by Bakkes", and # 2 s t a t e s Ditch easements acquired by
    
    implication           are       protected      by   70-17-112    MCA.         That    conclusion     directly
    
    contradicts t h e deed from George Bennett to Albert Bakke dated J u n e 22, 1945
    
    which included t h e water r i g h t s               -   while explicitly eliminating a l ditches and
                                                                                           l
    
    canals.          The findings of              t h e District Court must be           based    on substantial
    
    evidence, and must be r e v e r s e d i f a clear preponderance of evidence s u p p o r t s
    
    contradictory findings in citing B o y l a n v. V a n D y k e , B u t l e r V. Germoan a n d
    
    C h r i s t i a n s o n v. B r i t t o n .
          Also t h e c o u r t may award the attorney f e e s when a p a r t y is forced t o
    
    hire counsel to defend a frivolous complaint i n o r d e r to make t h e i n j u r e d
    
    p a r t y whole i n citing Foy v. Anderson (1978) 
    176 Mont. 507
    , 511-12,                      
    580 P.2d 114
    , 116-117 ( r e f e r r e d to a s " t h e Foy exception") in citing Holmstrom Land Co.
    
    V.   Hunter    (1979) 
    182 Mont. 43
    , 48-49, 
    595 P.2d 360
    , 363 a n d S t i c k n e y v. State,
    
    County o f Missoula (1981), 
    195 Mont. 415
    , 418, 
    636 P.2d 860
    , 862.
    
          Moreover, If t h e Court finds f r a u d practiced i n t h e complaint, t h e p a r t y
    
    should pay t h e attorney f e e s necessary to defend in citing t h e U. S. Supreme
    
    Court case Chambers v. Nasco Inc. (1991), 111 St. C t . 2123, 2133, 
    115 L. Ed. 2d 27
    , 45.
    
           The s t a t u t e s of t h e State of Montana do not legalize what t h e c o u r t s have
    
    ordered.        The    Swingers       have     presented      unrefutable      evidence      of   their
    
    ownership of t h e Hayes Creek water rights, a n d t h a t Collins claim was actually
    
    based     on t h e 1881 d e c r e e on Buckhouse Creek.                But    the   Supreme Court
    
    affirmed t h e Water Court's decision;              "based on l a r g e p a r t d u e to Swingers
    
    failure to attend t h e Water Court Hearing", and actually imposed sanctions f o r
    
    filing a frivolous appeal.         The Swingers do not consider having t h e i r p r o p e r t y
    
    confiscated e i t h e r trivial o r foolish!
    
           Then t o have a non-existant easement placed on t h e i r land which o r d e r e d
    
    them to install a 36 inch gate to access private p r o p e r t y was beyond t h e i r
    
    belief.    By law ditch r i g h t s and water r i g h t s a r e s e p a r a t e a n d distinct.   They
    
    can be acquired separately, a s well a s sold a n d t r a n s f e r r e d separately; b u t
    
    Gary Collins did not purchase o r acquire e i t h e r of them, b u t gained them b y
    
    fraud and       misrepresentation!           H i s crowning    achievement was          i n obtaining
    
    damages for lost hay crops, when t h a t land had n e v e r produced hay; a n d also
    
    obtain attorney fees from 1996 through 2001 d u r i n g t h e time t h e f a c t s were
    
    being distorted.
                                            RELIEF SOUGHT
    
    
            The Appellants herein r e q u e s t a re-opening            and review of t h e water
    
    r i g h t decrees a s provided       p u r s u a n t to 85-2-237    MCA;   for such reasons a s
    
    listed in 85-2-237 ( 2 ) ( b ) :
    
            (i) mistake, inadvertence, s u r p r i s e o r excusable neglect (in failing to
                 attend only one     -
                                   of many - hearings)
    
            (ii) newly discovered evidence, t h a t by d u e diligence could not have been
                  discovered in time to move for a new trial u n d e r Rule 59 ( b )
                  M.R.Civ.P.
    
            (iii) fraud. misrepresentation o r o t h e r misconduct of a n a d v e r s e p a r t y
    
            ( v ) a n y o t h e r reason justifying relief from t h e operation of t h e
                  judgement.
    
            1.     Code 26-1-205    s t a t e s e n t r i e s in official books constitute prima facie
    
    evidence, while code 26-1-1012 f u r t h e r s t a t e s t h a t publications may be entered
    
    into evidence a s prima facie evidence if t h e source is obtained a n d identified.
    
            2.     Recorded property d e e d s and newspaper articles d u r i n g t h e period a
    
    law s u i t is decreed can not be altered by a s u r v e y conducted y e a r s l a t e r         -   as
    
    was done by inserting "Warnath-McMahon ditch", where t h e old road bed was
    
    visible on a 1937 aerial photo          -    n o r by adding a / k / a Buckhouse to a 1955
    
    map where Hayes Creek is noted.
    
            3.     Swingers have provided t h e property d e e d s from t h e time George
    
    Bennett obtained his land g r a n t in 1912.            They have also provided t h e water
    
    right        he filed   t o 100 miner i n c h e s of Hayes         Creek   water in 1926 a f t e r
    
    purchasing Edward Hayes second land g r a n t of 1888 - which would have been
    
    impossible if it was also known a s Buckhouse Creek where r i g h t s had been
    
    decreed in 1881.
           4.      Swingers f u r t h e r provided t h e d e e d s of ownership from Bennett t o
    
    Albert Bakke; from Bakke to Julian Reed; a n d from Julian Reed to S w i n g e r s
    
    which included t h e Hayes Creek water r i g h t a n d 1,200 f e e t of irrigation pipe.
    
           5.      Proof of t h e chain in title from a n established water r i g h t must be
    
    proven, while Collins only e n t e r e d f a c t Harvey Goff purchased 33.4 a c r e s of
    
    l a n d from Albert Bakke             -   n e i t h e r of whom were s u c c e s s o r s to t h e d e c r e e i n
    
    c a s e 575.
    
           6.      The w a t e r r i g h t filed by Agnes B r e u e r to flood i r r i g a t e was based on
    
    Wm. Boss - a n d t h e r e was no one involved i n case 575 by t h a t name.
    
           But,      Swinger's     water r i g h t had          been confiscated, with a non-existent
    
    easement placed a s a consequence (while still being assessed p r o p e r t y taxes
    
    on t h e land t h a t Hayes Creek flows), both u n d e r t h e s c r u t i n y              of t h e Supreme
    
    Court.      Not only h a s Collins' actions deprived Swingers of a vacation in o v e r
    
    eight years,         b u t t h e invasion of          t h e i r p r o p e r t y h a s p r e v e n t e d them from
    
    having t h e peaceful enjoyment of t h e i r home.
    
             The Water r i g h t s should be re-adjudicated                  s o t h a t Swingers regain t h e
    
    p r o p e r t y r i g h t s t h e y have been deprived of. Gary Collins should be sanctioned
    
    f o r t h e f r a u d committed b y both falsifying information in acquiring a water
    
    r i g h t a n d a non existent easement on Swingers p r o p e r t y , wherein he was
    
    awarded both damages a n d                   a t t o r n e y fees.   This harassment h a s been aided
    
    b y t h e Court, a n d must be stopped by awarding Swingers equal sanctions!
    
           The Swingers feel t h e y should be awarded t h e c o s t s expended, which
    
    include t h e c u l v e r t , a new pump and s e r v i c e call, c o s t of removing d e b r i s , t h e
    
    c o s t of drilling a well a n d having pump installed, a s well a s t h e i r a t t o r n e y
    
    fees, f i n e s a n d c o s t s   -       plus t h e amount determined a s t h e               u s e of   their
    
    p u r c h a s e d w a t e r r i g h t f o r 25 y e a r s - from 1983 t o 2008.
              JUDGEMENT O N FINDINGS OF FACT, CONCLUSIONS OF L W AND OPINION
                                                              A
    
    
          This appeal before t h e Supreme Court r e p r e s e n t s t h e t h i r d case by t h e
    
    Swingers v e r s u s Collins stemming from t h e adjudication of water rights; and
    
    a s t h e saying goes, t h r e e s t r i k e s and you a r e out, while t h i s c o u r t h a s
    
    become t h e referee in determining t h e final score.
    
          Due to a d e a t h in t h e family Swingers failed to a t t e n d a hearing held by
    
    t h e Chief Water J u d g e in J u l y of     1998 in Case No.        76HE-11,      Therein t h e
    
    Montana Water Court sealed Swingers evidence a n d g r a n t e d Collins' ownership
    
    of a n irrigation r i g h t claim No. W 118461, with a diversion point from Hayes
    
    Creek on Swingers' property, having a priority d a t e of J u n e 19, 1881.                   This
    
    Court affirmed t h e Water Court, in large p a r t d u e t o t h e Swingers failure to
    
    a t t e n d t h e Water Court hearing, in r e Adjudication of Existing Water Rights
    
    (Swinger v ColLins), 1999 M 202, 
    295 Mont. 447
    , 
    984 P.2d 1
    51.
                               T
    
          With t h e water r i g h t s settled, t h e issue presented t h e District Court was
    
    whether Collins had a ditch easement across t h e Swingers p r o p e r t y and, if so,
    
    whether the Swingers wrongfully interfered with t h a t easement a n d caused
    
    Collins damages.        Following a non-jury         trial t h e District Court e n t e r e d its
    
    Findings of Fact. Conclusions of Law and Q r d e r awarding Collins injunctive
    
    relief, damages a n d a t t o r n e y fees, which was affirmed in t h e appeal.
    
          The    Swingers     had    raised    many     issues    on   the    Water    Court's    final
    
    determination a s to t h e ownership of Hayes Creek water rights, which t h i s
    
    Court refused to review anew because t h e Swingers failed t o s u p p o r t t h e i r
    
    contentions with       citations to a u t h o r i t y on t h e procedural a n d evidentiary
    
    issues.
    
          Therein, p u r s u a n t to Section 1, p a r a g r a p h 3(c), Montana Supreme Court
    
    1996 I n t e r n a l Operating Rules, t h e opinion s t a t e d t h a t t h e i r decision shall not
    
    be cited a s precedent, b u t filed a s a public document with t h e Clerk of t h e
        Supreme Court a n d r e p o r t e d by case title, Supreme Court cause number and
    
        t h e r e s u l t to t h e State Reporter Publishing Company and to West Group in t h e
    
        q u a r t e r l y table of noncitable cases issued by t h i s court.                 In affirming t h e
    
        District Court, t h e case was remanded back f o r a determination of c o s t s a n d
    
        a t t o r n e y fees, with t h e amount Swingers o r d e r e d to pay being determined a t
    
    
    
              Unfortunately, in t h a t appeal, t h i s c o u r t believed several f a c t s presented
    
        b y t h e District Court, s u c h as:
    
                1. The statement t h a t Swingers impeded Collins by removing t h e gate on
        t h e n o r t h side of t h e i r p r o p e r t y in 1992, so Collins had no access to t h e
        diversion; while Swingers have proven t h a t a closeable c u l v e r t was installed a t
        t h e diversion which Collins could a d j u s t in obtaining water, a t t h e time t h e
        g a t e was not replaced a n d t h e bridge t h a t formerly existed was removed.
    
               2.       The statement t h a t Swingers agreed Collins had a n               easement in t h e i r
        l e t t e r d a t e d J u n e 11, 1994 due to t h e fact t h e y had allowed         McMahon, Breuer
        a n d Collins to d i v e r t water; while Swingers have proven t h i s              was a neighborly
        g e s t u r e in also allowing t h e Blastics - whom only have a                    provisional water
        r i g h t - to also pump water from Hayes Creek.
    
               3. The statement t h a t in May 1996 Swingers wrote Collins a l e t t e r denying
        him a c c e s s to t h e i r property; while Swingers have e n t e r e d evidence proving
        t h a t t h e s a n d b a g s placed i n t h e c r e e k in d i v e r t i n g were merely c u t open a n d
        allowed to wash down t h e c r e e k filling Swingers pond below, which killed t h e
        fish; a n d t h e cost of removing s u c h in October 1996 amounted to $840.00.
    
               I t a p p e a r s t h a t t h e Swingers had gone overboard in s h a r i n g t h e water of
    
    1   Hayes Creek, which h a s been v e r y costly to them.                    Therefore, t h e complaints
    
    I   filed b y Collins new Attorney Douglas Harris in August of                              2006, and t h e
    I
        s u b s e q u e n t h e a r i n g s a n d o r d e r s d e s e r v e s special attention in Case DV-06-724.
    
    
    I          The Supreme Court t e n d s to uphold decisions made in lower courts, b u t
    
        t h i s appeal h a s convinced t h e J u s t i c e s t h a t trial Court is capable of impunity
    
    1   in signing o r d e r s t h a t a r e above t h e law, which a p p e a r s to be some s o r t of
    
        v e n d e t t a a g a i n s t t h e defendants.    I n t h i s appeal Swingers have cited t h e
    I   a u t h o r i t y on procedural a n d evidentiary i s s u e s p u r s u a n t to Rule 23 ( a ) ( 4 )
    
    
    I   M.R.App. P. which must now be considered.                     This c o u r t cannot possibly affirm
    t h e f a c t s presented, with t h e conclusions of law in t h e o r d e r d a t e d May 27,
    
    2888; i n t h e realization t h a t would           multiply t h e i n j u s t i c e s s u f f e r e d    by the
    
    defendants.
    
          This appeal of t h e o r d e r on contempt includes ancillary                            o r d e r s which
    
    effect t h e s u b s t a n t i a l r i g h t s of t h e p r o p e r t y ownership of t h e Swingers, which
    
    c a n n o t be allowed.      P u r s u a n t to Rule 6 ( 3 ) ( j ) M.R.App.P.,          the Swingers a r e
    
    entitled t o p u r s u e t h e i n q u i r y to determine w h e t h e r t h e allocation of water t o
    
    Collins t o operate 14 s p r i n k l e r h e a d s 24/7 with water d i v e r t e d sufficient to f i l l
    
    his c i s t e r n to s l i g h t overflow a s ordered on Page 2, lines 11 - 1 3 is i n
    
    accordance with existing law a s outlined i n 85-2-102                      (17) a n d 85-2-103           (2) and
    
    85-2-103 (3).
    
          Concerning relations between t h e parties.                     I t is t h i s Court's             equitable
    
    power t o r e s e a r c h a lower c o u r t s ' i n h e r e n t power t o police itself. t h u s s e r v i n g
    
    t h e d u a l p u r p o s e of vindicating judicial a u t h o r i t y with r e s o r t t o s a n c t i o n s
    
    available a n d making t h e p a r t y whole for p r o p e r t y wrongly awarded to o t h e r s .
    
          Because t h e Court h a s now been convinced t h a t e r r o r s may have been
    
    made i n affirming former appeals, it hereby g r a n t s t h e Swingers r e q u e s t t o
    
    re-open a n d review t h e water r i g h t d e c r e e s a s provided i n 85-2-237                       M A for
                                                                                                              C
    
    t h e r e a s o n s listed in 85-2-237 ( 2 ) (b)
    
        (i) mistake, inadvertence, s u r p r i s e o r excusable neglect (in failing t o
               a t t e n d only one - of many - hearings)
    
        (ii) newly discovered evidence, t h a t by d u e diligence could not have been
                  discovered in time to move f o r a new trial u n d e r Rule 59 ( b )
                  M.R.Civ.P. (Not realizing t h e i r exhibits would be sealed)
    
         (iii) f r a u d , misrepresentation o r o t h e r misconduct of a n a d v e r s e p a r t y
                      ( b y a l t e r i n g exhibits a n d making false statements)
    
         ( v ) a n y o t h e r reason justifying relief from t h e operation of t h e
                 judgement. ( t o r e t u r n p r o p e r t y t o r i g h t f u l o w n e r s )
          I n reviewing the exhibits listed by the Swingers, they have obtained t h e
    
    Water r i g h t filed on Hayes Creek by George Bennett July 15, 1926 - which
    
    would have been impossible if those r i g h t s had been decreed.                 Their exhibits
    
    also include t h e deed from Bennett to Albert and Anna Bakke J u n e 22, 1945
    
    where a l ditches and canals were eliminated.
           l                                                       The deeds also ascertain t h a t
    
    Bakke's    sold Julian and Alma Read a t r a c t of land November 8, 1949, a f t e r
    
    which Julian and Alma Read purchased 4 t r a c k s of land from Albert a n d Anna
    
    Bakke in Sections 10 and 15 March 9, 1956 which had to include t h e water
    
    r i g h t because t h e Contract f o r Deed from Reads t o Swingers dated September
    
    15, 1958 included "1,200 feet of irrigation pipe with t h e water r i g h t s on Hayes
    
    Creek".
    
          The fact t h a t no ditch r i g h t s were included in t h e sale from Bennett t o
    
    Bakke, a p p e a r to make Collins claim t h a t an easement arose when Albert Bakke
    
    sold 33.4 a c r e s to Harvey Goff on J a n u a r y 29, 1948 invalid.          Furthermore, t h e
    
    initial water r i g h t filed by Agnes Breuer March 8, 1982 to flood i r r i g a t e was
    
    based     on being   derived from Wm Boss, and in changing t h i s to s p r i n k l e r
    
    irrigation based on decree # 575 of 1881, Collins must prove how he became a
    
    successor to t h e water r i g h t s established in t h a t decree.
    
            This   can   not   be    ascertained     by   simply     inserting     "Warnath-McMahon
    
    ditch" on a 1937 aerial photo, because neither p a r t y had water rights, nor can
    
    it be proven by adding a / k / a Buckhouse to a 1955 map showing Hayes Creek.
    
    Failure of Collins to p r e s e n t conclusive evidence of possessing a water r i g h t
    
    with t h e easement necessary,           will r e s u l t in   having   both    t h e Water Court
    
    adjudication and t h e easement issue in District Court overturned.
    
                                    SIGNED t h i s         day of           , 2008.
                                    CERTIFICATE OF COMPLIANCE
    
         Pursuant to Rule 11 of the Montana Rules of Appellate                Procedure     I
    hereby certify t h a t the Appellants Brief was printed on 8 1/2" X 11" standard
    quality, white, unglazed, acid free, recycled paper of 25% cotton fiber content.
    with a minimum of 50% recycled content, of which 10% is post-consumer waste.
         I f u r t h e r certify that the brief is printed with a proportionately spaced
    typeface of 14 points o r more, in a non-script           text with case names and
    headings either underlined, in bold o r italics; t h a t it has margins of one inch
    on the top, bottom and both left and right sides; and is double spaced with
    the exception of Issues, footnotes and quoted            o r indented material.       The
    principle    brief   does not   exceed   10,000 words,   and   the nine    copies   were
    duplicated by a commercial photocopy method capable of producing a clear
    black image.
    
                Dated this      day of   d,
                                         fb/
                                             2008.
    
    
    
    
                                    CERTIFICATE O F SERVICE
                                      Sel
        I hereby certify t h a t on   & 7 , 2008 a t r u e and correct copy of the
    Appeal Brief was placed in the U. S. Mail, postage prepaid, and addressed to
    the Attorney for Gary E.Collins at:
    
    
    Douglas D. Harris
    P. 0. Box 7939
    Missoula, M 59807-7939
               T
                                                                   m, fJLfY.
                                                                    &
                                                                   ~ d r i e Swinger
                                                                           E.
    

Document Info

DocketNumber: 08-0267

Citation Numbers: 2010 MT 34

Filed Date: 2/16/2010

Precedential Status: Precedential

Modified Date: 11/22/2017

Authorities (22)

Chambers v. Nasco, Inc. , 501 U.S. 32 ( 1991 )

State Ex Rel. City Motor Co., Inc. v. Dist. Court , 530 P.2d 486 ( 1975 )

Foy v. Anderson , 580 P.2d 114 ( 1978 )

Downs v. Smyk , 604 P.2d 307 ( 1979 )

Holmstrom Land Co. v. Hunter , 595 P.2d 360 ( 1979 )

Stickney v. State, County of Missoula , 636 P.2d 860 ( 1981 )

Cereck v. Albertson's Inc. , 637 P.2d 509 ( 1981 )

Fleming v. Fleming Farms, Inc. , 717 P.2d 1103 ( 1986 )

Christensen v. Britton , 784 P.2d 908 ( 1989 )

Butler v. Germann , 822 P.2d 1067 ( 1991 )

Boylan v. Van Dyke , 806 P.2d 1024 ( 1991 )

Goodover v. Lindey's Inc. , 843 P.2d 765 ( 1992 )

Marriage of Nikolaisen , 847 P.2d 287 ( 1993 )

Thornton v. Songstad , 868 P.2d 633 ( 1994 )

Morton v. MWM, INC. , 868 P.2d 576 ( 1994 )

Carbon County v. Union Reserve Coal Co., Inc. , 898 P.2d 680 ( 1995 )

Wareing v. Schreckendgust , 930 P.2d 37 ( 1996 )

In Re Adjudication of Existing Rights , 984 P.2d 151 ( 1999 )

Collins v. Swinger , 2001 MT 265N ( 2001 )

Faust v. Utility Solutions, LLC , 173 P.3d 1183 ( 2007 )

View All Authorities »