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 151.
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 predetermined 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
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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 151.
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.
