Bricker, Frey, Hagel, Wheeler

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IN THE WATER COURT OF THE STATE OF MONTANA ******************** NOTICE OF FILING OF MASTER'S REPORT TO: ALL PARTIES RE: 76M-13 This is to has filed a Master's Law) with the Clerk listed above. A copy Notice. provide you with Notice that the Water Master Report (Findings of Fact and Conclusions of of the Water Court for the water right(s) of the Master's Report is enclosed with this Please review this Master's Report carefully. If there are any corrections or changes that need to be made, you have 10 days from service of this Notice to file a written objection. You must mail a copy of your written oblection to all the other parties who have been involved in this proceeding and file a certificate of such mailing with the Water Court. (This procedure is required by Rule 1.11. Water Right Claims Examination Rules and by Rules 5 and 53 of the Montana Rules of Civil Procedure.) DATED this 17th day of September 1991. LORI M. BURNHAM Clerk of Court Montana Water Court P. 0. Box 879 Bozeman, MT 59771-0879 (406) 586-4364 1-800-624-3270 (in Montana) IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER BASIN (76M) ************************* IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER IN LAKE, MINERAL, MISSOULA AND SANDERS COUNTIES, MONTANA. CLAIMANT: CASE NO. 76M-13 76M-W-099158-00 76M-W-099417-00 76M-W-099419-00 76M-W-099420-00 76M-W-111322-00 76M-W-111323-00' 'Edna E. Frey (Former owner), Wayne D. Bricker and Billye A. Bricker (Present owner) Myrthy E. Hagel and Edgar F. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, William J. Wheeler, Blanche V. Wheeler, Michael A. Wheeler, William J. Wheeler, Jr. ON MOTION OF MONTANA WATER COURT OBJECTOR: William J. Wheeler, Jr., Wayne D. Bricker The hearing of this case was held before Water Master Kathryn L. W. Lambert on February 26 and 27, 1987 in the Public Defender's Conference Room, Missoula, Montana. Counsel Paul C. Meismer appeared on behalf of Edna E. Frey, Wayne D. Bricker and Billye A. Bricker (Brickers). Witnesses called were Edna E. Frey, Leonard Erickson, Richard Hollenback, Kit Sutherland, Shirley Hollenback, Donald Frey, Charles Frey, Jr., Wayne D. Bricker and Dennis Workman. Exhibits F-1, F-5, F-9, F-12, F-14, F-15, F-16, F-17, F-18 and F-19 were admitted over objection. Exhibits F-2, F-3, F-4, F-6, F-7, F-10 and F-11 were admitted without objection. Exhibits F-8 and F-13 were not offered. Counsel Douglas R. Austin appeared on behalf of Edgar F. Bagel, Myrthy E. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, William J. Wheeler, Blanche V. Wheeler, Michael A. Wheeler and William J. Wheeler, Jr. (Wheelers). Witnesses called were John Westenberg, Kenton Lewis, Tim Lewis, Debbie Wheeler Boyes, Jackie Robb, William J. Wheeler, Jr. and Bob Wheeler. Exhibits W-1, W-2, W-9, W-11, W-12, W-13, W-14, W-15, W-16, W-17, W-18, W-19, W-20, W-21 and W-26 were admitted without objection. Exhibits W-3, W-4, W-5, W-6, W-7, W-8, W-10, W-27, W-28 and W-29 were admitted over objection. Exhibits W-23 and W-24 were refused. Admittance of Exhibit W-22 was taken under advisement. Exhibit W-25 was not offered. The parties stipulated to the admission of the telephone depositions of Verna Gladys French Oakley, Casey Austin and William Hankinson. Exhibit W-22 is a photocopy of an aerial photo upon which blue and green lines and arrows have been drawn by counsel Doug Austin. This was offered by Wheelers and objected to by Brickers. Although Kenton Lewis did not prepare the demonstrative exhibit, he was able to identify the markings. He further testified that the lines were correct only for a certain time, that they did not represent the natural historical route of the Creek. The Court reserved its ruling on the objection. The objection is hereby overruled and Exhibit W-22 is admitted as the exhibit was clearly and adequately identified by Kenton Lewis as required by Rule 901 Mont. R. Evid. 2 Counsel for Wheelers objected to the testimony of Dennis Workman concerning the impact on the Nemote Creek fishery by Mr. Hagel's rerouting of the Creek. The objection was taken under advisement. It is determined that the objection should be sustained and the testimony of Dennis Workman concerning the fishery should be stricken as the impact on the fishery is not relevant to the determination of the validity or elements of the Wheeler water right. The Brickers concerns about the degradation of the fishery and the stream bed should be pursued with the Montana Department of Fish, Wildlife and Parks. Counsel for the Brickers objected to testimony of William J. Wheeler, Jr. concerning what Edgar Hagel told him about the seniority of water rights appurtenant to the Hagel ranch. The objection was taken under advisement. It is determined that the objection should be overruled as this testimony is relevant to the "hostile" requirement of adverse possession. The Brickers raised two other issues concerning the nonuse of the Wheeler claims after July 1, 1973 and questioned whether irrigation of fields which are predominantly leafy spurge is a beneficial use of water. It appears that the leafy spurge has taken over these fields since 1973. Whether the Wheeler claims have been abandoned in whole or in part since July 1, 1973 and whether the post July 1, 1973 irrigation of leafy spurge is a beneficial use of water are issues which should be pursued with the Montana Department of Natural Resources and Conservation. 3 On June 4, 1991 a Draft Master's Report was sent to all the parties for review and comment. Comments were received from Leonard Erickson and Leona Erickson, Edna E. Frey, Wayne D. Bricker, and Doug Austin on behalf of the Wheelers. Upon review of the comments it appeared that the issue of acres irrigated for claim 76M-W-111322-00 was not fully resolved. The Court requested that the parties or their representatives meet with John Westenberg of the Montana Department of Natural Resources and Conservation, to plot the acreage on an aerial photo and to calculate the total number of acres irrigated. The parties met on August 18, 1991. On August 22, 1991 two aerial photos with irrigated acreage clearly outlined and worksheets tabulating the number of acres and determining the legal descriptions were filed by Paul Meismer on behalf of the Brickers. On September 5, 1991 a Statement specifying agreement with the acreages specified in the aerial photos and tabulations was filed by Doug Austin on behalf of the Wheelers. Based upon the Statements of Claim, the Montana Department of Natural Resources and Conservation Withdrawals of Objection and Stipulations, the exhibits and testimony submitted, the post-hearing briefs of counsel, the aerial photos and acreage tabulations, and the Wheelers Statement, the Water Master submits the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCLUSION OF LAW 1) The Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. Sec. 85-2-233. 4 CONCLUSION OF LAW 2) The Water Court has jurisdiction over all matters relating to the determination of existing water rights and may consider a matter within the Court's jurisdiction on its own motion. Mont. Code Ann. Sec. 3-7-224. 76M-W-099158-00 FINDING OF FACT 1) William J. Wheeler, Jr. objected to the ownership and priority date of this Billye A. Bricker and Wayne D. Bricker stockwater claim. The objection alleged this right was lost by adverse possession by Edgar Bagel. FINDING OF FACT 2) A Notice of Intent to Appear was filed by Billye Ann Bricker, Wayne D. Bricker and Edna E. Frey. FINDING OF FACT 3) This Bricker stockwater claim is based on the Christian Frey Notice of Appropriation for 300.00 miner's inches of Fourteen Mile Creek (currently known as Nemote Creek) appropriated and filed for on October 13, 1902. This Notice is a sworn statement by Christian Frey that he dug the ditches and that he appropriated the water on October 13, 1902. The Notice specifies in paragraph II that the "purpose for which said water is claimed is for irrigating land." Stock use is not included. CONCLUSION OF LAW 3) As the 1902 Christian Frey Notice of Appropriation does not include stockwater use, that is not the proper basis for this right. CONCLUSION OF LAW 4) As this right is not based on a filed notice or a previous court decree, it is a use right. The priority date is the date the water was first put to beneficial use. 5 FINDING OF FACT 4) Upon review of the Statement of Claim it is clear that the cattle drink directly from the source. The place of use is the area bordering both sides of Nemote Creek as it passes through the Frey Ranch. FINDING OF FACT 5) The Frey Ranch, historically known as the Milk Ranch, was mentioned in the April 27, 1870 edition of the Missoulian. It was a way station and had the only cattle between Missoula, Montana and Wallace, Idaho. (Testimony of Edna E. Frey and Exhibit F-5) FINDING OF FACT 6) Since the early 1870s there have been dairy and beef cattle on the Frey Ranch. There naturally would have been stockwater use from that time as well. CONCLUSION OF LAW 5) The priority date should be April 27, 1870. (Exhibit F-5) CONCLUSION OF LAW 6) The requirements for adverse possession of a water right are clearly specified in Irion et al. v. Hyde et al., 81 P.2d 353, 107 Mont. 84, 88-89 (1938): It is settled law in this state that the burden of proving adverse user of water rests upon the party (Boehler v. Boyer, 72 Mont. 472, 234 Pac. alleging it. 1086; St. Onge v. Blakely, 76 Mont. 1, 245 Pac. 532.) It is equally well settled that in order to acquire a water right by adverse user or prescription, it is essential that the proof must show that the use has been (a) continuous for the statutory period which in this state is ten years (sec. 9024, Rev. Codes); (b) exclusive (uninterrupted, peaceable); (c) open (notorious); (d) under claim of right (color of title); (e) hostile and an invasion of another's rights which he has a chance to prevent. (1 Wiel's Water Rights in the Western States, 3d ed., sec. 582, p. 628; 2 Kinney on Irrigation and Water Rights, 2d ed., sec. 1048, p. 1875; Verwolf v. Low Line Irr. Co., 70 Mont. 570, 227 Pac. 68; Smith v. Duff, 39 Mont. 374, 102 Pac. 981, 133 Am. St. Rep. 582.) All of the foregoing elements must exist before a court is 6 justified in declaring a superior right by adverse user or prescription, and no one element may be omitted without being fatal in the proof of adverse user. CONCLUSION OF LAW 7) The burden of proving adverse possession is on the party claiming the right by adverse possession. Of particular importance is the actual adverse use. In a case which is remarkably similar, the Montana Supreme Court stated: [T]wo parties may at the same time be in possession of water from a creek and neither hold adverse to the other; each may justly claim the right to use the water he is using, without affecting the rights of the other, and therefore, in order to constitute adverse possession of water, the burden is upon the claimant to show that his use of the water deprived the prior appropriators of water at times when such prior appropriators actually needed the water; the use does not become adverse until it interferes with the use thereof by the prior appropriators, and therefore proof merely that the claimant used water and claimed the right to use it is no proof whatever of adverse use. St. Onge et al. v. Blakely et al., 245 P. 532, 76 Mont. 1, 16 (1926). FINDING OF FACT 7) There was virtually no evidence presented to prove the elements of adverse possession of this stockwater right by Hagels or their predecessors. CONCLUSION OF LAW 8) As there was no testimony or evidence presented that Frey was actually deprived of water at a time when he needed it, and that this stockwater right was actually adversely used by Hagel at any time for his stock, there was no adverse possession by Hagel of this Frey stockwater right. 76M-W-111322-00 FINDING OF FACT 8) This Billye A. Bricker and Wayne D. Bricker irrigation claim is based upon the Peter Nickelson Notice of Water Right for 250.00 miner's inches of Fourteen Mile Creek 7 for irrigating and other purposes appropriated and filed for on August 4, 1891. FINDING OF FACT 9) William J. Wheeler, Jr. objected to the ownership, priority date, place of use, acres irrigated, volume and flow rate of this Billye A. Bricker and Wayne D. Bricker irrigation claim. FINDING OF FACT 10) The Montana Department of Natural Resources and Conservation (Department) objected to the acres irrigated. FINDING OF FACT 11) This claim was called in on Motion of the Water Court due to the gray area remark concerning the number of acres irrigated, volume and flow rate. FINDING OF FACT 12) A Notice of Intent to Appear was filed by Billye A. Bricker, Wayne D. Bricker and Edna Frey. FINDING OF FACT 13) On August 5, 1985 the Department filed a . Withdrawal of Objection, and the Department, Billye A. Bricker and Wayne D. Bricker filed a Stipulation specifying 186.00 acres irrigated and the legal descriptions for that acreage. FINDING OF FACT 14) At the hearing of Case 76M-13 the Brickers stated that they are not the owners of this water right. The actual owners are Leonard Erickson and Leona Erickson. The Brickers withdrew this claim. CONCLUSION OF LAW 9) As the Brickers have withdrawn this claim, it shall not appear in the Preliminary or Final Decree of the Clark Fork River Between The Blackfoot River and Flathead River Basin (76M). 8 76M-W-111323-00 FINDING OF FACT 15) William J. Wheeler, Jr. objected to the ownership, priority date, place of use and acres irrigated of this Billye A. Bricker, Wayne D. Bricker and Edna E. Frey claim, and alleged that he is the owner of this water right due to the adverse possession by his predecessor Edgar Hagel. FINDING OF FACT 16) The Department objected to the acres irrigated, volume and flow rate. FINDING OF FACT 17) This claim was called in on Motion of the Water Court due to the gray area remark concerning the number of acres irrigated. FINDING OF FACT 18) A Notice of Intent to Appear was filed by Wayne D. Bricker, Billye Ann Bricker and Edna Frey. FINDING OF FACT 19) This Bricker irrigation claim is based on the Christian Frey Notice of Appropriation for 300.00 miner's inches of Fourteen Mile Creek (currently known as Nemote Creek) appropriated and filed for on October 13, 1902. This Notice is a sworn statement by Christian Frey that he dug the ditches and that he appropriated the water on October 13, 1902. The Notice specifies in Paragraph II that the "purpose for which said water is claimed is for irrigating land." The number of acres irrigated was not specified. This Notice was recorded in Book F of Water Rights, page 18, Records of Missoula County. FINDING OF FACT 20) It appears that Christian Frey sold 20.00 miner's inches of surplus water under his claimed 1902 right to the Milwaukee, Chicago & St. Paul Railroad and that this was not transferred back to the Freys. Following is an analysis of that transaction: 9 a) The Peter Nicholsen right is based on his August 4, 1891 Notice of Water Right for 250.00 miner's inches of Fourteen Mile Creek. (Exhibit W-10) b) On May 24, 1901 Christ Frey purchased 16040 acres from Big Blackfoot Milling Company. No water rights are specified in this transfer. But it is noted that if there were any water rights used on this property by the property owner, then those rights are appurtenances and are passed with the property unless excluded. Castillo v. Kunneman, 642 P.2d 1019, 197 Mont. 190 (1982). (Exhibit W-10) -c) On May 22, 1905 Christ Frey and Louise Frey transferred the same 160.00 acres (in this document "known as the Peter Nicholsen Ranch") to Mrs. Clark R. Graham. No water rights are specified, but if they were appurtenant, they were transferred as well. (Exhibit W-10) d) On March 31, 1908 Christian Frey and Louise Frey transferred 20.00 miner's inches of the August 4, 1891 Peter Nichelson right on Fourteen Mile Creek and "... other waters of the said Creek appropriated by the said Christian Frey October 13th, 1902 and recorded in Book 'F' of said Water Rights at Page 18, thogether (sic) with the right of entry upon the southeast quarter (SE1/4) of Section No. Sixteen (16) in Township No. Fifteen (15) North, range No. Twenty-five (25) West of the Principal 10 Meridian of Montana..." to the Chicago, Milwaukee & St. Paul Railway Company of Montana. Twenty inches were sold with the right of entry. (Exhibit W-10) e) On October 1, 1917 Christian Frey filed a statement clarifying the above transfer which states ... that it was the intention of himself and wife to convey and he did actually convey by said deed, 20 inches of the waters of Fourteen Mile Creek, no more and no less." The purpose of this statement is unclear as which water right the twenty inches came from is not identified. At a minimum he confirmed that it was a Fourteen Mile Creek water right that he owned which was transferred. (Exhibit W-10) f) On October 25, 1938 the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Charles Frey and Edna Frey entered a release concerning the pipeline right of way. There is no mention of the water right being conveyed back to the Freys. (Exhibit F-12) It is found that the Peter Nicholsen 1891 water right was an appurtenance to the Peter Nicholsen Ranch and as such was conveyed by Christian Frey and Louise Frey to Mrs. Clark R. Graham in 1905. It is noted that the Brickers withdrew their claim 76M-W-111322-00 for this water right as it belongs to Leonard Erickson and Leona Erickson, the current owners of the Peter Nicholsen Ranch. It is found that the transaction with the Chicago, Milwaukee, St. Paul & Pacific Railroad actually conveyed part 11 of the Christian Frey 1902 claimed water right and none of the Peter Nicholsen water right. It is found that the 20.00 miner's inches came from that portion of the 1902 300.00 miner's inches right which had not yet been actually put to beneficial use, i.e., not yet perfected at the time the transfer was made. What was transferred to Milwaukee, Chicago & St. Paul Railroad Company was surplus or excess water. CONCLUSION OF LAW 10) Excess or surplus water may not be sold. So long as a party has all the water his necessity requires or that his ditches will carry, it is immaterial that he has a right, under decree or otherwise, to a greater flow from the creek. It is his duty to permit the excess to remain in the creek or, having diverted it to return it to the creek in such manner that it will be available to subsequent appropriators on decreed rights. Whitcomb v. Helena Water Works, 444 P.2d 301, 151 Mont. 443, 448 (1968). But an appropriator cannot be permitted to use the water for the purpose for which it is appropriated, and then, in the interims when not continually used by him, sell the same for use by other persons. The supreme court of Montana, in considering this question, used this language: "It has been held that an appropriator of water may change the use of his appropriation from one purpose to another, (Meagher v. Hardenbrook, 11 Mont. (385) 381, 28 Pac. 451, and cases cited), but it has never been held in this state (nor are we cited to like holding elsewhere) that after an appropriator has used the water sufficiently to answer the purpose of his appropriation, he might take the waters of the stream remaining, which he could not use for the purpose of his appropriation, and sell it to other parties, thereby depriving subsequent appropriators of their right to use the same." (Creek v. Bozeman Waterworks Co., 15 Mont. 121, 131, 38 Pac. 459; see, also, Tucker v. Missoula Light & Water Co., 77 Mont. 91, 250 Pac. 11.) 12 Gauger et al. v. McNulty et al., 260 P.401, 80 Mont. 339, 357 (1927). See also Brennan et al. v. Jones et al., 55 P.2d 697, 101 Mont. 551 (1936) and Sections 89-805 and 89-811 R.C.M. Therefore, it appears that the transfer of 20.00 miner's inches of surplus water under the 1902 Frey Notice of Appropriation was not permitted in Montana. The fact that the 20.00 miner's inches were not transferred back to the Freys is immaterial. FINDING OF FACT 21) The Frey Ranch was irrigated in 1908. There was irrigation on the bottom next to the Creek, but not on the bench. About the same amount of that field is irrigated now as was in 1908. (Deposition of Verna Gladys French Oakley) FINDING OF FACT 22) On November 21, 1934 a Warranty Deed was filed transferring the Frey Ranch from Christian Frey and Louise Frey to Charles Frey and Edna Frey, their son and daughter-in-law. In the description of the transferred property, the Deed states: Together with that certain water right to the use of certain water of Fourteen Mile Creek, as the same was located 'and recorded by said party of the first part, said record appearing in Book F of Water Rights on Page 18 on the records of Missoula County and as transcribed to the records of Mineral County in the office of the County Clerk and Recorder. There are no other water rights specified in this Deed. The October 13, 1902 Christian Frey water right on Fourteen Mile Creek is recorded in Book F of Water Rights, Page 18, Missoula County, Montana. (Exhibit W-11) 13 FINDING OF FACT 23) Irrigation continued through the 1930s and 1940s. Although Edna Frey testified that there were 48.00 acres irrigated in the lower field, the parties later agreed that there were 58.50 acres irrigated as shown on the aerial photograph submitted after the hearing. (Testimony of Edna Frey and aerial photograph with tabulations) FINDING OF FACT 24) Between 1953 and 1965 Edgar Hagel's irrigation activities (dam) upstream interfered with the delivery of Nemote Creek water to the Frey Ranch. Mr. Hagel was told by his attorney that he had the best, ie, senior right. The basis for his conclusion is not clear. (Exhibits W-2 and W-3) The same attorney told Mrs. Frey that the Freys had the senior water right. When Mr. Hagel interfered with their right, he advised them to rip out the dam. FINDING OF FACT 25) Although the Frey right was interfered with, and Mrs. Frey stated that she decided that the water was not worth fighting for, the Freys did continue to receive water. There was no evidence submitted that the Freys were denied their water, just that they had trouble getting it. CONCLUSION OF LAW 11) As noted previously Irion, 107 Mont. at 88-89, specifies that the elements required to prove adverse possession are a) continuous use for the statutory period b) exclusive use, c) open use, d) use under claim of title, and e) hostile use. CONCLUSION OF LAW 12) As noted previously St. Onge, 76 Mont . at 16, specifies that the burden of proving adverse 14 possession is on the party claiming the right by adverse possession. CONCLUSION OF LAW 13) There was no testimony or evidence presented that the Freys were actually deprived of water at a time when they needed it, and that their water right was actually adversely used by Mr. Hagel at any time. It was very clear that the Frey's had trouble getting their water and that Mr. Bagel thought that he had the senior water right. But as long as the Freys did receive their water, it was not possible for Mr. Hagel to have been adversely using their water right. As this one requirement for adverse possession was not proved, the remaining requirements need not be reviewed. CONCLUSION OF LAW 14) There was no adverse possession by Hagel of this Frey (Bricker) water right. FINDING OF FACT 26) In the 1940s the Freys began thinking of putting in a sprinkler to irrigate the bench in Section 21. They continued planning and consulting until the sprinkler and pumps were installed in May 1973. FINDING OF FACT 27) Evidence concerning the irrigation from 1960-1973 was conflicting. In 1968 the State of Montana, Water Conservation Board, surveyed this area for its Water Resource Survey. The surveyor's notes and maps specify 34 acres in Section 16 actually irrigated by the 1902 right and 20 acres in Section 21 as potentially irrigable. (Exhibits W-13 and W-14) In the 1960s additional land in the pasture was cleared for irrigation and some land was removed from irrigation due to construction of Highway 1-90. Edna Frey testified that there 15 were 48.00 acres historically irrigated plus 5.00 new acres in the pasture, totaling 53.00 acres in the lower field (Section 16). Edna Frey and Wayne Bricker both testified that their Stipulation with the Montana Department of Natural Resources and Conservation accurately specifies 67.00 acres irrigated in the lower field after installation of the sprinklers in 1973. The aerial photograph with acreage tabulations _ submitted by Brickers after the hearing and accepted by Wheelers, specifies 58.30 acres irrigated in the lower field after the interstate was constructed. FINDING OF FACT 28) On December 6, 1985 the Department filed a Withdrawal of Objection, and a Stipulation signed by the Department and Wayne D. Bricker and Billye Ann Bricker. This Stipulation specifies 186.00 acres irrigated and provides the legal description for that acreage. When added the specified acreages total 177.00 acres rather than 186.00 acres. This Stipulation includes the acreage in Section 16 and Section 21. CONCLUSION OF LAW 15) In Clausen v. Armington, 212 P.2d 440, 123 Mont. 1, 14 (1949) the Montana Supreme Court stated: Not having constructed a ditch from Tallow Creek within a reasonable time after November 15, 1939, the date of his notice of appropriation, plaintiff's appropriation would not under sections 7100 to 7102, R.C.M. 1935, relate back to that date, but under the authorities cited above, would date from the spring of 1942 when he directed the water onto his land and continued to do so in 1943, 1944 and 1945, before defendant in the fall of 1945 removed the pipe and dam from his ditch so as to prevent any further use of the water by plaintiff. (Emphasis added) 16 Due diligence has been defined as follows: What constitutes reasonable diligence must be determined on an ad hoc, case by case basis. The law in this area is summarized by a leading authority, Clark Waters & Water Rights, Vol. 6, section 514.1, pp. 308, 309, in this language: "What constitutes due diligence is a question of fact to be determined by the Court in each case. Diligence does not require unusual or extraordinary effort, but it does require a steady application of effort - that effort that is usual, ordinary and reasonable under the circumstances. * * * So long as the applicant prosecutes the construction of works in good faith with a steady effort, he should be held to hdve prosecuted with diligence." *** We hold therefore that the meaning of the words " * * * proceed to prosecute the excavation or construction of the work by which the water appropriated is to be diverted * * * " is not confined to the commencement of actual on-site excavation or construction of the diversion works, but that it encompasses the steady on-going effort in good faith by Intake to prosecute the construction of the project under the circumstances disclosed here. Montana Department of Natural Resources and Conservation v. Intake Water Co., 558 P.2d 1110, 171 Mont. 416, 434 and 436 (1977). See also Holmstrom Land Co., Inc. v. Meagher County Newlan Creek Water Dist., 605 P.2d 1060, 185 Mont. 409 (1980). CONCLUSION OF LAW 16) The Notice of Appropriation was filed in 1902. The Freys began planning a sprinkler system for the bench in the 1940s and actually put in the system in 1973. It does not appear that sprinkler irrigation on the bench was part of Christian Frey's actual or intended use in 1902. (It is noted that it is common knowledge that sprinklers were not in use until after World War II). It is clear that the lapse of 38-47 years (1902 to 1940 or 1949) during which there were no plans or efforts to sprinkler irrigate the bench precludes any relation 17 back to the 1902 date. The Brickers argue that the priority date should be in the 1940s when they first began planning to irrigate the bench or at least from 1969 when they actively pursued installation of the sprinklers and pump. They appear to be relying on the doctrine of relation back. Relation back occurs when one files a Notice of Appropriation but has not yet completed the appropriation. Sections 89-811 and 89-812 R.C.M. If there is a substantial period of time until the appropriation is completed and this claimant can show due or reasonable diligence in pursuing a completed appropriation, then the priority date relates back to the notice date rather than the date of actual first use. "It follows that the statute controls this doctrine of relation back, and that one who seeks to avail himself of it since passage of this act can only do so by a compliance with the statutory requirements." Murray v. Tingley, et al., 50 P. 723, 20 Mont. 260, 269 (1897). In this case there is no notice of appropriation filed in the 1940s or in 1969 to which the priority date can be related back. The priority date is the date of first use, May 1973. FINDING OF FACT 29) There was an expansion of 118.70 acres (177.00 minus 58.30) when Brickers began sprinkler irrigating 8.70 acres in Section 16 in 1970 and 110.00 acres in Section 21 in 1973. FINDING OF FACT 30) Water Court standards . are 1.50 miner's inches per acre, 9.40 acre feet per acre per year for flood irrigating in this area and 3.80 acre feet per acre per 18 year of sprinkler irrigation in this area. There was no evidence presented that a greater quantity of water was actually beneficially used historically. CONCLUSION OF LAW 17) As there was no separate Notice of Appropriation filed for the sprinkler system installed in 1970 to irrigate a portion of the lower field (Section 16), that right is a use right and the priority date is the date of first use. A separate water right 76M-W-214065-00 should be generated for this right. The place of use was determined by comparing the Stipulation and Exhibits F-4, F-6, F-11, W-14, W-17 and W-21. The flow rate and volume were calculated by multiplying the number of acres irrigated by the standards. The elements of this right are as follows: 76M-W-214065-00 OWNERS: Billye A. Bricker, Wayne D. Bricker and Edna E. Frey PRIORITY DATE: May 31, 1970 FLOW RATE: 0.33 cfs VOLUME: 33.06 acre feet per year SOURCE: Nemote Creek MAXIMUM ACRES: 8.70 PURPOSE OF RIGHT: Irrigation PERIOD OF USE: April 1 to October 4 POINT OF DIVERSION AND MEANS OF DIVERSION: QTR.SEC. SEC. TWP. RGE. COUNTY SESWSE 16 15N 25W MINERAL PUMP 19 PLACE OF USE FOR IRRIGATION: ACRES 2.20 5.50 1.00 8.70 TOTAL QTR.SEC. SEC. TWP. RGE. COUNTY SWSWSE SESWSE NWSWSE 21 21 21 15N 15N 15N 25W 25W 25W MINERAL MINERAL MINERAL CONCLUSION OF LAW 18) As there was no separate Notice of Appropriation filed for the sprinkler system installed in 1973 to irrigate the bench (Section 21), that right is a use right and the priority date is the date of first use. A separate water right 76M-W-214225-00 should be generated for this right. The place of use was determined by comparing the Stipulation, Exhibits F-6, W-14, W-17 and W-21 and the aerial photo with acreage tabulations submitted after the hearing. The flow rate and volume were calculated by multiplying the number of acres irrigated by the standards. The elements of this right are as 76M-W-214225-00 OWNERS: Billye A. Bricker, Wayne D. Bricker and Edna E. Frey PRIORITY DATE: May 31, 1973 FLOW RATE: 4.13 cfs VOLUME: 418.00 acre feet per year SOURCE: Nemote Creek MAXIMUM ACRES: 110.00 PURPOSE OF RIGHT: Irrigation PERIOD OF USE: April 1 to October 4 POINT OF DIVERSION AND MEANS OF DIVERSION: QTR.SEC. SEC. TWP. RGE. COUNTY NESWSE 16 15N 25W MINERAL PUMP 20 PLACE OF USE FOR IRRIGATION: ACRES SEC. TWP. RGE. COUNTY 1.00 10.00 NWNWNE NENWNE NENENE 10.00 10.00 7.00 8.00 40.00 4.00 8.00 3.00 2.00 110.00 SWNENE SENENE NESWNE SESWNE 21 21 21 21 21 21 21 21 21 21 21 21 15N 15N 15N 15N 15N 15N 15N 15N 15N 15N 15N 15N 25W 25W 25W 25W 25W 25W 25W 25W 25W 25W 25W 25W MINERAL MINERAL 7.00 TOTAL QTR.SEC. SENE NENWSW SENWSE NWNESE NENESE MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL CONCLUSION OF LAW 19) Although the Notice of Appropriation is prima facie evidence, Brickers must prove that there actually has been " 1 ... beneficial use over a reasonable period of time.' Inherent in this burden of proof is the responsibility to prove the amount of water beneficially used." Holmstrom Land Co. v. Newlan Creek Water Dist., 605 P.2d 1060, 185 Mont. 409, 419 (1979). See also Irion et al. v. Hyde et al., 81 P.2d 353, 107 Mont. 84 (1938) and 79 Ranch Inc. v. Pitsch, 666 P.2d 215, 204 Mont. 426 (1983). CONCLUSION OF LAW 20) Claim 76M-W-111323-00 should be changed to reflect the 1902 water right only as perfected. The place of use was determined by comparing the Stipulation, Exhibits F-6, W-14, W-17 and W-21, and the aerial photo with tabulations submitted after the hearing. The flow rate and volume were calculated by multiplying the number of acres irrigated by the standards. The elements of this water right are as follows: 21 76M-W-111323-00 OWNERS: Billye A. Bricker, Wayne D. Bricker and Edna E. Frey PRIORITY DATE: October 13, 1902 FLOW RATE: 2.19 cfs VOLUME: 549.90 acre feet per year SOURCE: Nemote Creek MAXIMUM ACRES: 58.50 PURPOSE OF RIGHT: Irrigation PERIOD OF USE: April 1 to October 4 POINT OF DIVERSION AND MEANS OF DIVERSION: QTR.SEC. SEC. TWP. RGE. COUNTY SWSESW SESWSW 15 15 15N 15N 25W 25W MINERAL MULTIPLE MINERAL MULTIPLE PLACE OF USE FOR IRRIGATION: ACRES TOTAL QTR.SEC. SEC. TWP. RGE. COUNTY 1.50 7.60 10.00 4.30 7.00 5.70 10.00 9.10 3.30 58.50 SESESE NESESE NWSESE SWSESE SWNESE NENWSE SENWSE NESWSE SESWSE 16 16 16 16 16 16 16 16 16 15N 15N 15N 15N 15N 15N 15N 15N 15N 25W 25W 25W 25W 25W 25W 25W 25W 25W MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL 76M-W-099417-00 FINDING OF FACT 31) This Edgar F. Bagel, Myrthy E. Bagel, Michael A. Wheeler, William J. Wheeler, Blanche V. Wheeler, Thomas M. Wheeler, Joseph P. Wheeler and William J. Wheeler, Jr. irrigation claim is based upon the Martin R. Miller Notice of Water Right of 200.00 miner's inches from the first branch of Fourteen Mile Creek for irrigation and other useful 22 purposes appropriated June 16, 1891 and filed on February 27, 1892. The first branch of Fourteen Mile Creek is currently called Miller Creek. FINDING OF FACT 32) William J. Wheeler, Jr. objected to the place of use, acres irrigated, volume and flow rate. FINDING OF FACT 33) On April 30, 1986 Douglas R. Austin, Attorney for William J. Wheeler, Jr. withdrew the objection. No changes to the claim were specified. FINDING OF FACT 34) A Notice of Intent to Appear was filed by Wayne D. Bricker. FINDING OF FACT 35) A late objection was filed by Wayne D. Bricker on August 20, 1986. The elements objected to are purpose of right, period of use, acres irrigated, point of diversion, means of diversion, volume and flow rate. FINDING OF FACT 36) Following is a recital of the testimony and exhibits admitted concerning the Miller Creek water right: a. Edna Frey - She lived in the area from 1932 to 1971. She did not know of any time when there had been irrigation on the claimed place of use. She did not recall seeing the field plowed and thought that it was not plowable because it was rocky and gravelly. b. Exhibit F-1 shows a line which may be a ditch in the area of the claimed historical irrigation.. It is not clear if the marking is a ditch. The contact date of this survey map is June 21, 1892. 23 c. Verna French Oakley - She lived in the area from 1908 to 1915. She recalls irrigation, less than ten acres. She thinks it was grain, maybe hay. She said the property owner was Bill Graham and she recalled that he was killed in a dispute over a fence line. In her Corrections to Deposition dated February 17, 1987 Mrs. Oakley states that this testimony "...is very confusing and not accurate." No clarification is provided. d. William H. Hankinson - He lived on the Hankinson Ranch, just below the field claimed, from 1926 to 1955, although he was gone on occasion in the 1940s. He stated that he did not know of any irrigation in that field in the 1930s and 1940s. e. Leonard Erickson - He purchased the Nicholsen Ranch, which is just below the claimed place of use, in 1948 and has lived there ever since. He has never seen ditches or irrigation in those fields. When asked if Mr. Hagel could have been irrigating and Mr. Erickson just did not see it, he stated no because he can see the field from his field, and because Mr. Hagel could not take water across the road and onto fields without a sprinkler and there were no sprinklers there. f. Donald Frey - He lived on a Frey Ranch from 1946 to 1965. He did not ever see irrigation at the claimed place of use and is not aware of anyone ever cutting hay up there. 24 g- Charles Frey, Jr. - He lived on Frey Ranch from 1944 to 1962. He used to fish Miller Creek as a boy. He never saw any ditches or other diversions of water out of Miller Creek by Mr. Hagel. The culvert which might have carried water under the road to the fields was torn out years ago. He never saw any water going through the culvert. h. Richard Hollenback - He purchased the Homer French ranch in 1960. He has never seen ditches or evidence of cultivation in the claimed place of use. i. Kenton Lewis - Except for 1977-78, he has lived in the area since 1949. Mr. Hagel talked about irrigating the Miller Creek field. He thinks there was grain grown one year and maybe some hay was cut in 3 or 4 years. But he never saw the irrigation or assisted with the crops. He simply recollects Mr. Hagel talking about it. . Exhibit F-2 is a photocopy of an aerial photo taken in 1964. There is a mark which may be the trace remnants of a ditch. It is very unclear. k. Casey Austin - He has lived in the area off and on since 1966. He helped Mr. Hagel with the irrigation. He stated that they did not do any irrigating on the Miller Creek side of the ranch. 1. Wayne Bricker - He has lived on Frey Ranch since 1968 and has been familiar with the area since 1961. He detailed the Graham/Hollis dispute and shooting over a ditch in 1910-1915. The implication is that there 25 might have been some irrigation taking place. The culvert was torn out when the road was rebuilt in 1957. There is no way to get Miller Creek water across the road for irrigation. The Water Master's conclusion drawn from all this evidence is that there might have been some irrigation prior to 1915 and that Mr. Hagel may have cut hay for 3 or 4 years some time after that. It is not known if Mr. Hagel irrigated those fields or if the runoff and rains naturally provided sufficient moisture. FINDING OF FACT 37) This water right has not been used since 1915. A 58 year period of nonuse occurred from 1915 to 1973. CONCLUSION OF LAW 21) As objector has not alleged that this claimed water right was not perfected and has alleged that it was last used in 1915, the finding of this Court is that the water right was put to use and perfected prior to 1915. CONCLUSION OF LAW 22) The statute governing abandonment was section 89-802 (7094) R.C.M. (1885) which states: Appropriation must be for a useful purpose abandonment. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest abandons and ceases to use the water for such purpose, the right ceases; but questions of abandonment shall be questions of fact, and shall be determined as other questions of fact. CONCLUSION OF LAW 23) There are two elements of abandonment - intention to abandon and actual nonuser. "Neither an intention to abandon nor nonuser is sufficient; the union of 26 both is indispensable to constitute abandonment." Thomas et al. v. Ball et al., 213 P. 597, 66 Mont. 161, 167 (1923). CONCLUSION OF LAW 24) In 79 Ranch, the claimant had not used the water for at least 40 years. The Montana Supreme Court held "[in effect, such a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the reasons for nonuse." 79 Ranch, Inc., et al. v. Pitsch, 666 P.2d 215, 204 Mont. 426, 432 (1983). CONCLUSION OF LAW 25) The 58 year period of continuous nonuse raises the rebuttable presumption of abandonment and shifts the burden of proof onto the Wheelers to explain the reasons for nonuse, i.e. to prove that there has not been an intention to abandon the water right, that this presumption is erroneous. CONCLUSION OF LAW 26) There was insufficient evidence presented to priove that the various owners from 1915 to 1973 did not have an intention to abandon this Miller Creek right. The presumption of intention to abandon was not rebutted. CONCLUSION OF LAW 27) As there is an intent to abandon coupled with actual nonuse, this water right has been abandoned. CONCLUSION OF LAW 28) As this water right has been abandoned, it should be dismissed and should not appear in the Preliminary Decree or Final Decree for this basin. 27 76M-W-099419-00 FINDING OF FACT 38) William J. Wheeler, Jr. objected to the priority date of this Myrthy E. Hagel, Edgar F. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, Michael A. Wheeler, Blanche V. Wheeler, William J. Wheeler and William J. Wheeler, Jr. irrigation claim stating "[biased on a claim of Adverse Use, as supported in the Amendment to the above claim and the Affidavit filed in conjunction therewith, the priority date should precede the earliest priority date granted to Wayne D. and Billye A. Bricker, which at present is June 1, 1850 (See Bricker claim #s 76M-W-099158, 76M-W-111322 and 76M-W-111323.)" It is noted that this Wheeler claim is for the South Fork of Nemote Creek whereas the Bricker claims which Wheelers claim to have acquired by adverse possession are on Nemote Creek and Miller Creek. A review of the Temporary Preliminary Decree indicates that there are no Bricker claims to water from the South Fork of Nemote Creek. FINDING OF FACT 39) The Department objected to the acres irrigated. FINDING OF FACT 40) A Notice of Intent to Appear was filed by Wayne D. Bricker, Billye Ann Bricker and Edna E. Frey. FINDING OF FACT 41) A late objection was filed on August 20, 1986 by Wayne D. Bricker. The elements objected to were priority date, purpose of right, period of use, acres irrigated, point of diversion, means of diversion, volume and flow rate. 28 FINDING OF FACT 42) This creek has been known by several names: Schaffer Creek, Jakey Creek and South Fork of Nemote Creek. FINDING OF FACT 43) The Jacob Schaffer Notice of Appropriation states that he diverted 400.00 miner's inches of Schaffer Creek and put it to use in sections 8 and 19 of T. 15 N R. 24W and sections 13 and 24 of T. 15N R. 25W. Paragraph IV states: "That I appropriated and took said water on the 23rd day of December A.D. 1911, by means of said ditch". FINDING OF FACT 44) As there is no Bricker water right on the South Fork of Nemote Creek for Bagel to have acquired by adverse possession, there has been no adverse possession. CONCLUSION OF LAW 29) As there is no Bricker water right on the South Fork of Nemote Creek for Bagel to have acquired by adverse possession, the priority date of this Wheeler claim will not be changed to an earlier date. CONCLUSION OF LAW 30) As there was no evidence presented substantiating actual use of this water claimed by Jacob Schaffer prior to December 23, 1911, the date he specified in his sworn and acknowledged Notice of Appropration, the priority date should remain as December 23, 1911. FINDING OF FACT 45) The only evidence presented concerning use of this claimed right from 1911 to 1930 was from Edna Frey. She testified that she had heard that Jacob Schaffer did irrigate some when he owned the ranch. Verna Gladys French Oakley lived in the area from 1908 to 1915. She recalled Jacob Schaffer owning the ranch at that time, but did not know if he irrigated out of the South Fork of Nemote Creek. 29 FINDING OF FACT 46) There was irrigation out of the South Fork of Nemote Creek during the 1930s and early 1940s when the Flys leased the ranch from the Smiths. Native hay was irrigated. (Deposition of William Hankinsen) FINDING OF FACT 47) There was no irrigation out of the South Fork of Nemote Creek from the mid 1940s to the time Edgar and Myrthy Hagel purchased the ranch, but there was some native hay growing in the South Fork field. (Testimony of Edna Frey and Leonard Ericson) FINDING OF FACT 48) In 1953 Myrthy Hagel and Edgar Hagel purchased this ranch and its appurtenant water rights. (Exhibit W-9) FINDING OF FACT 49) There was seemingly contradictory testimony concerning irrigation from 1953 to 1973. Those who were associated with Mr. Hagel testified about the actual irrigation in which they assisted and the neighbors testified that they never saw ditches or actual irrigation although they did see a hay field and some harvesting. The Court finds that Edgar Hagel did irrigate the field bordering the South Fork of Nemote Creek. Due to the nature of the soils it is credible that ditches used may have been shallow and hence not readily apparent during the irrigation season or lasting for future observation. (Testimony of Edna Frey, Leonard Erickson, Richard Hollenback, Shirley Hollenback, Kit Sutherland, Wayne Bricker, Tim Lewis and Kenton Lewis, Depositions of Casey Austin and William Hankinson and Exhibits W-3, W-26, W-27, W-28 and W-29) 30 FINDING OF FACT 50) On August 7, 1985 the Department filed a Withdrawal of Objection, and the Department, Myrthy E. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, William J. Wheeler, Jr., Michael A. Wheeler, William J. Wheeler and Blanche V. Wheeler filed a Stipulation specifying 40.60 acres irrigated and legal descriptions. At the signature line for Edgar F. Bagel the following is inserted: (deceased: Joint Tenancy has been terminated in favor of Myrthy E. Hagel). CONCLUSION OF LAW 31) Upon review of the Withdrawal of Objection and Stipulation, it appears that the changes to place of use and acres irrigated specified by this Withdrawal and Stipulation, are proper and are accepted by this Court. CONCLUSION OF LAW 32) As the Temporary Preliminary Decree for the Clark Fork River Between the Blackfoot River and Flathead River Basin (76M) correctly states that the number of acres irrigated is 40.60 acres, it does not require change. CONCLUSION OF LAW 33) The place of use should be changed to reflect the correct number of acres. The Temporary Preliminary Decree for the Clark Fork River Between the Blackfoot River and Flathead River Basin (76M) states that the place of use is: ACRES QTR.SEC. SEC. TWP. PGE. COUNTY 10.00 4.00 1.00 NWNWNW NENWNW SWNWNW SENWNW SESESE NWNENE NENENE SWSWSW 19 19 19 15N 15N 15N 15N 15N 15N 15N 15N 24W 24W 24W 24W 25W 25W 25W 24W MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL 3.00 7.00 0.60 9.00 5.00 TOTAL 19 13 24 24 18 39.60 31 The place of use should be: ACRES TOTAL QTR.SEC. SEC. TWP. RGE. COUNTY 10.00 4.00 2.00 3.00 5.00 7.00 0.60 9.00 40.60 NWNWNW NENWNW SWNWNW SENWNW SWSWSW SESESE NWNENE NENENE 19 19 19 19 18 13 24 24 15N 15N 15N 15N 15N 15N 15N 15N 24W 24W 24W 24W 24W 25W 25W 25W MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL MINERAL CONCLUSION OF LAW 34) As noted earlier, the flow rate specified in a Notice of Appropriation is not conclusive. It is the actual beneficial use which is the measure of a water right. Holmstrom Land Co., 185 Mont. 409, Irion, 107 Mont. 84 and 79 Ranch Inc., 204 Mont. 426. FINDING OF FACT 51) It is doubtful that Jacob Schaffer actually diverted 400.00 miner's inches to irrigate this field. Clearly a lesser amount was actually perfected. Jacob Schaffer did irrigate the claimed area with water from the South Fork of Nemote Creek. FINDING OF FACT 52) Water Court standards are 1.50 miner's inches per acre and 9.40 acre feet per acre per year for flood irrigating in this area. There was no evidence presented that a greater quantity of water was actually beneficially used historically. FINDING OF FACT 53) For this water right which has historically been used on 40.60 acres, the flow rate should be reduced from 10.00 cfs (400.00 mi) to 1.52 cfs (60.90 mi). The volume should be reduced from 3000.00 acre feet per year to 381.64 acre feet per year. 32 76M-099420-00 FINDING OF FACT 54) William J. Wheeler, Jr. objected to the priority date of this Myrthy E. Hagel, Edgar F. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, Blanche V. Wheeler, Michael A. Wheeler, William J. Wheeler and William J. Wheeler, Jr. irrigation claim stating "[b]ased on a claim of Adverse Use, as supported in the Amendment to the above claim and the Affidavit filed in conjunction therewith, the priority date should precede the earliest priority date granted to Wayne D. and Billye A. Bricker, which at present is June 1, 1850 (See Bricker claim #s 76M-W-099158, 76M-W-111322 and 76M-W-111323.)" FINDING OF FACT 55) A Notice of Intent to Appear was filed by Wayne D. Bricker, Billye Ann Bricker and Edna E. Frey. FINDING OF FACT 56) A late objection was filed on August 20, 1986 by Wayne D. Bricker. The elements objected to were priority date, purpose of right, period of use, place of use, acres irrigated, point of diversion, means of diversion, volume and flow rate. FINDING OF FACT 57) The Creek has been known as Fourteen Mile Creek. The current USGS name is Nemote Creek. FINDING OF FACT 58) The Jacob Schaffer Notice of Appropriation states that 500.00 miner's inches were diverted and put to use in sections 18 and 19 of T. 15N R. 24W and sections 13 and 24 of T. 15N R. 25W. Jacob Schaffer specifically states in Paragraph IV: "That I appropriated and took said water on the 23rd day of December A.D. 19 1, by means of said ditch". It is dated December 23, 1911. 33 FINDING OF FACT 59) As previously determined in Finding of Fact 13 and Conclusion of Law 14, the Wheelers did not acquire the senior Bricker water right by adverse possession. CONCLUSION OF LAW 35) As the Wheelers did not acquire the senior Bricker water right by adverse possession, the priority date of this Wheeler claim will not be changed to the Brickers' priority date. CONCLUSION OF LAW 36) As there was no evidence presented substantiating actual appropriation and use prior to December 23, 1911 the priority date will not be changed. FINDING OF FACT 60) Jacob Schaffer irrigated out of Nemote Creek and grew hay for his stock. Verna Gladys French Oakley lived in the area from 1908 to 1915. She recalled seeing irrigation during this time on both the field below what is now the Fold of the Messiah and the field farther downstream below where the old ranch house used to be, but did not specify which years. (Deposition of Verna Gladys French Oakley) FINDING OF FACT 61) There was no evidence submitted confirming or disproving irrigation out of Nemote Creek from 1915 to 1930. FINDING OF FACT 62) Elbert Fly leased the ranch from Dr. Smith through the 1930s and into the early 1940s. He irrigated native hay in both the field below the Fold and the field below the old ranch. He irrigated approximately 100.00 acres in these two fields plus the South Fork of Nemote Creek field. (Deposition of William Hankinson) 34 FINDING OF FACT 63) Charles and Edna Frey leased the property from 1941 to 1944. Between 1941 and 1944 there was about 20 to 25 acres of hay field and possibly some grain irrigated by Nemote Creek. (Testimony of Edna Frey and Exhibits F-7 and W-1) FINDING OF FACT 64) It is unclear whether there was any irrigation out of Nemote Creek from 1944 to 1953. Leonard Erickson testified that he did not recall any irrigation during those years. FINDING OF FACT 65) In 1953 Myrthy Hagel and Edgar Hagel purchased this ranch and its appurtenant water rights. (Exhibit W-9) FINDING OF FACT 66) From 1953 to 1973 Edgar Hagel irrigated the field below the Fold and the field below the old ranch house. Irrigation was either observed or conducted by some of the witnesses. Others assumed it had occurred. He or his employees used a tractor with a blade to make cuts in the main ditch (substantially a rerouting of the Creek) and those cuts were changed every few days once a particular area had been sufficiently flooded. There was hay harvested from the fields every year from at least 1961 to 1973. (Testimony of Edna Frey, Richard Hollenback, Leonard Erickson, Shirley Hollenback, Donald Frey, Kenton Lewis, Tim Lewis, Jackie Robb and Bill Wheeler, and Depositions of Casey Austin and William Hankinson) Some witnesses characterized the irrigation as not being a beneficial type of irrigation, as uncontrolled or accidental. Regardless of these characterizations, the irrigation occurred. 35 FINDING OF FACT 67) It was clear that the soil is of such a loose gravelly nature that the ditches could be easily cut and washed out. This explains why there are no permanent laterals across the field which were readily apparent. CONCLUSION OF LAW 37) As there was no clear evidence substantiating a lesser number of acres irrigated than as decreed, the number of acres irrigated and the place of use do not require change. FINDING OF FACT 68) It is doubtful that Jacob Schaffer actually diverted 500.00 miner's inches to irrigate these fields. Clearly a lesser amount was actually perfected. Jacob Schaffer did irrigate the claimed area with water from Nemote Creek. CONCLUSION OF LAW 38) As noted earlier, the flow rate specified in a Notice of Appropriation is not conclusive. It is the actual beneficial use which is the measure of a water right. Holmstrom Land Co., 185 Mont. 409, Irion, 107 Mont. 84 and 79 Ranch Inc., 204 Mont. 426. FINDING OF FACT 69) Water Court standards are 1.50 miner's inches per acre and 9.40 acre feet per acre per year for flood irrigating in this area. There was no evidence presented that a greater quantity of water was actually beneficially used historically. FINDING OF FACT 70) For this water right which has historically irrigated 79.00 acres, the flow rate should be reduced from 12.50 cfs (500.00 miner's inches) to 2.96 cfs (118.50 miner's inches). The volume should be reduced from 36 3750.00 acre feet per year to 742.60 acre feet per year. DATED this day of September 1991. Kathryn . W. Lambert Water Master CERTIFICATE OF SERVICE I, Janet Lackey Fulcher, Deputy Clerk of Court, Montana State Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT, FINDINGS OF FACT, CONCLUSIONS OF LAW, was duly served upon the following persons listed herein, by depositing the same, postage prepaid, in the United States mail. Edgar F. and Myrthy E. Hagel Route 2 Superior, MT 59872 Douglas R. Austin, Atty. 520 Brooks Street Missoula, MT 59801 William J. and Blanche V. Wheeler P. 0. Box 8924 Missoula, MT 59807 Wayne D. and Billye A. Bricker Route 2, Box 6750 Superior, MT 59872 Joseph P. Wheeler Wheeler Village Office Missoula, MT 59802 Edna Frey Route 2, Box 6760 Superior, MT 59872 Thomas M. Wheeler Wheeler Village Office Missoula, MT 59802 Donald L. Frey 12803 S.E. 231st Way Kent, WA 98031 Michael A. Wheeler Wheeler Village Office Missoula, MT 59801 Charles H. Frey 1843 35th Street Missoula, MT 59801 William J. Wheeler, Jr. Box 8624 Missoula, MT 59801 DATED this // 7 Paul Meismer, Attorney P. 0. Box 7909 Missoula, MT 59807 day of September 1991. 4111./../A_LA ¢ . ourt 37 CONG DON LAW OFFICES 520 BROOKS STREET MISSOULA, MONTANA 59801 JAMES E. CONG DON DOUGLAS R. AUSTIN WALTER E. CONG DON 14061 721-1160 April 24, 1986 Kathryn L. W. Lambert Watermaster P. 0. Box 879 Bozeman, Montana 59715 Re: Water Right Claim #76M-W-099417-00 Dear Kathryn: Please be advised that William J. Wheeler Jr., has decided to withdraw his objection tothe above-referenced claim, and he has further decided to withdraw his amendment on the same claim. Further investigation has revealed that we could not support the additional acreage which we previously thought may have been historically irrigated. Thank you, Very truly yours, Douglas R. Austin DRA/oc cc: William J. Wheeler, Jr. % Westview Park Village 500 Schramm Missoula, Montana 59802 IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER BASIN * * * * * * **** ********** IN THE MATTER OF THE ADJUDICATION ) OF THE EXISTING RIGHTS TO THE USE ) OF ALL THE WATER, BOTH SURFACE AND ) UNDERGROUND, WITHIN THE CLARK FORK ) RIVER BETWEEN THE BLACKFOOT RIVER ) AND FLATHEAD RIVER DRAINAGE AREA, ) INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER ) IN LAKE, MINERAL, MISSOULA, AND SANDERS COUNTIES, MONTANA. * * * * * * * *- WATER RIGHT CLAIM NO. 76M-W-111323 * * * * * * ****** , St1. * * * * * * * * * * * * * * **** WITHDRAWAL OF OBJECTION The Montana Department of Natural Resources and Conservation (DNRC), by and through the undersigned attorney, withdraw the Notice of Objection to the above-captioned water right claim(s) as it is no longer necessary to have a Hearing on the above-captioned matter before the Water Courts. DATED this-2-.,L day of /152ce:-, 1985. By d 4' "4 c 722-"I'121 Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 CkS CERTIFICATE OF SERVICE I, the undersigned attorney for the Department of Natural Resources and Conservation, hereby certify that on theZte day of 1985, a true and accurate copy of the WITHDRAWAL OF OBJECTION was duly served upon all parties or counsel of record, by depositing the same, postage prepaid, in the United States Mail. Billye and Wayne Bricker Rt. 2, Box 550 Superior; MT 59872 Edna E. Frey Box 464 Superior, MT 59872 By c< Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER BASIN * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER IN LAKE, MINERAL, MISSOULA, AND SANDERS COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) ) ) STIPULATION WATER RIGHT CLAIM NO. 76M-W-111323 * * * * * * * * * * * * * * * * * * * * COMES NOW the Department of Natural Resources and Conservation (DNRC), by and through one of its attorneys, and Billye A. Bricker, and Wayne D. Bricker, to stipulate as follows in regard to Water Right Claim No. 76M-W-111323: 1) That the Temporary Preliminary Decree for the Clark Fork River Basin should be changed at pages 1395 and 1396 to read as follows: MAXIMUM ACRES: 186 PLACE OF USE FOR IRRIGATION: 3.00 ACRES NESESE SEC 6.00 ACRES NWSESE SEC 3.00 ACRES SWSESE SEC 6.00 ACRES NENWSE SEC 5.00 ACRES NWNWSE SEC 2.00 ACRES SESESE SEC 4.30 ACRES SWSESE SEC 1.00 ACRES SESWSE SEC 0.70 ACRES NWNESE SEC 5.00 ACRES SWNESE SEC 9.00 ACRES SENWSE SEC 4.00 ACRES SWNWSE SEC 9.00 ACRES NENWSE SEC 6.00 ACRES SESWSE SEC 3.00 ACRES NWSWSE SEC 1.00 ACRES NWNWNE SEC 10.00 ACRES NENWNE SEC 7.00 ACRES NENENE SEC 10.00 ACRES SWNENE SEC 10.00 ACRES SENENE SEC 0.00 ACRES NWSWNE SEC 16 16 16 16 16 16 16 16 16 16 16 16 16 16 16 21 21 21 21 21 21 T15N R25W T15N R25W T15N R25W Ti 5N R25W T15N R25W Ti 5N R25W T15N R2 5W T15N R25W T15N R25W T15N R25W T15N R25W. Ti 5N R25W T15N R2 5W T15N R25W T15N R25W Ti 5N R25W T15N R25W T15N R25W Ti 5N R25W Ti 5N R25W T15N R25W Water Right Claim No. 7.00 0.00 8.00 40.00 0.00 4.00 8.00 3.00 0.00 0.00 0.00 0.00 2.00 0.00 0.00 186.00 76M-W-111323 NESWNE ACRES SWSWNE ACRES SESWNE ACRES SENE ACRES NWNWSE ACRES NENWSE ACRES SENWSE ACRES NWNESE ACRES ACRES NESWSE ACRES NESESE ACRES SWSESE ACRES SESESE ACRES NENESE ACRES SWNESE ACRES SENESE ACRES TOTAL SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC SEC (continued) 21 21 21 21 21 21 21 21 21 21 21 21 21 21 91 T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N T15N R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W R25W SUPPLEMENTAL RIGHTS STATEMENT: This objection will affect the acreage and volume figures contained in this remark. 2) That upon the signing of this stipulation by both parties, the DNRC will file a "Withdrawal of Objection" with the Montana Water Courts, thereby concluding this litigation. DATED thisclZ,_day of 1985. By 6L4e.ce. 26240- Candace F. West Legal Counsel Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 By1C ) Y-37,4,1 ne D Br cke oAr-4-4 Lega Representative -4 By 1-111-0-) 0--YL44. Billye A. Bricker or Legal Representative r IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER BASIN ******************** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER IN LAKE, MINERAL, MISSOULA, AND SANDERS COUNTIES, MONTANA. - ) ) ) ) ) ) ) ) ) ) ) WATER RIGHT CLAIM NO. 76M-W-099419 * * ** * ** *** * ** * * ** * * * WITHDRAWAL OF OBJECTION I, Tim D. Hall, Legal Counsel for the Montana Department of Natural Resources and Conservation (DNRC), withdraw the Notice of Objection to Water Right Claim No. 76M-W-099419 as it is no longer necessary to have a Hearing before the Water Courts on these water rights. DATED this4 14-- day o xe-1985. Tim D. Hall Legal Counsel Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 CERTIFICATE OF SERVICE I, Tim D. Hall, Attorney, Department of Natural Resources and Conservation, hereby certify that on their1'6 day of Apen985, a true and accurate copy of the WITHDRAWAL OF OBJECTION was duly served upon all parties or counsel of record, as listed below by depositing the same, postage prepaid, in the United States Mail. Edgar F. Hagel Route 2 Superior, MT 59872 Thomas M. Wheeler Wheeler Village Office Missoula, MT 59801 Myrthy E. Hagel Route 2 Superior, MT 59872 Joseph P. Wheeler Wheeler Village Office Missoula, MT 59801 Michael A. Wheeler Wheeler Village Office Missoula, MT 59801 William J. Wheeler, Jr. Wheeler Village Office Missoula, MT 59801 Blanche V. Wheeler Wheeler Village Office Missoula, MT 59801 William I. Wheeler Wheeler Village Office Missoula, MT 59801 Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 IN THE WATER COURTS OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER BASIN ******************** IN THE MATTER OF THE ADJUDICATION ) ) OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND ) UNDERGROUND, WITHIN THE CLARK FORK ) RIVER BETWEEN THE BLACKFOOT RIVER ) AND FLATHEAD RIVER DRAINAGE AREA, ) INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE ) BLACKFOOT RIVER AND FLATHEAD RIVER ) IN LAKE, MINERAL, MISSOULA, AND SANDERS COUNTIES, MONTANA. STIPULATION WATER RIGHT CLAIM NO. 76M-W-099419 * * * * * * * * * * * * * * * * * ** COMES NOW the Department of Natural Resources and Conservation (DNRC), by and through one of its attorneys, and Myrthy E. Bagel, Edgar F. Hagel, Thomas M. Wheeler, Joseph P. Wheeler, William J. Wheeler, Jr., Michael A. Wheeler, William I. Wheeler and Blanche V. Wheeler, to stipulate as follows in regard to Water Right Claim No. 76M-W-099419. 1) That the Temporary Preliminary Decree for the Clark Fork River Basin should be changed at page 238 to read as follows: PLACE OF USE FOR 10 ACRES 4 ACRES 2 ACRES 3 ACRES 7 ACRES 0.6 ACRES ACRES 9 ACRES 5 40.6 ACRES IRRIGATION: NWNWNW SEC NENWNW SEC SWNWNW SEC SENWNW SEC SESESE SEC NWNENE SEC NENENE SEC SWSWSW SEC TOTAL 19 19 19 19 13 24 24 18 T15N T15N T15N T15N T15N T15N T15N T15N R24W R24W R24W R24W R25W R25W R25W R24W 2) That upon the signing of this stipulation by both parties, the DNRC will file a "Withdrawal of Objection" with the Montana Water Courts, thereby concluding this litigation. DATED this day of kr/n4, 19 By Tim D. Hall Legal Counsel Department of Natural Resources and Conservation 32 South Ewing Helena, Montana 59620 By Myrthy'E. Bagel or Legal Representative 0 (61((-6(7)-(1 4 ; 14 14- 77""' 012- ¢ A-/--r . Edgar F. Hagel or 7Lere,t-, : iiaf-ed Legal Representative Of frixr Representative By By Thomas M. Wheeler or Legal Represe tative By ___ William f. Wheeler. or J . Legal Representative Michael A. Wheeler or Legal Representative By 16 Blanche V. Wheeler or Legal Representative Ze e (i /Aye I GARLINGTON, LOHN & ROBINSON CHARLES E. MC.NEIL PAUL C. MEIsmER JOHN 0. MUDD MICHAEL C. PREZEAU LARRY E. RILEY SUSAN P. ROY ROBERT E. SHERIDAN W. DENNIS STA REEL WILLIAM T. WAGNER KELLY M. WILLS ATTORNEYS Al' LAW STEVEN S. CAREY GARY B. CHuNIRAu LW\ RENCE F. DALY E. CRAIG DAUE CANDACE C. FETSCliER GEORGE D. GOODRICH GARY L. GRAHAM GREGORY L. HANSON LARRY W. JONES WILLIAM EVAN JONES MAUREEN H. LENNON SHERMAN V. LOHN BRADLEY J. LUCK TERRY j. M.ACDONALD 199W. PINE ¢ Corner of Pine and Ryman P.O. Box 7909 MISSOULA, MONTANA 59807-7909 -115.62f3=ite0 TETE=4"156.- z8-8839- 406-523-2500 Telefax 406-523-2595 J.C. GARLINGTON R.H. "Tv' ROBINSON August 21, 1991 OF COUNSEL RECEIVED AJ 22 12,i'?.,1 Ms. Kathryn Lambert Montana State Water Courts P.O. Box 879 Bozeman, MT 59715 RE: Claim No. 76M-13 Dear Ms. Lambert: Enclosed please find the original DNRC Examination Worksheet, POU Addendum prepared by John Westonberg in a meeting with Wayne Bricker and Edna Frey last Thursday. Also enclosed are the maps prepared by Mr. Westonberg. As you can see, the documents indicate the pre-interstate place of use and post-interstate place of use for the milk ranch irrigated field out of Nemote Creek. If you require any additional detail or information, please advise. Very Truly Yours, GARLINGTON, LOHN & ROBINSON &1 136 (>1.1.--07,-/ W. C. Meismer PCM/lkh Enclosures c: Wayne Bricker Edna Frey Doug Austin John Westonberg r 5T":" - 7 C. DNRC EXAMINATION WORKSHEET POU ADDENDUM Page / of / Data Source il L/.5",.) ACRES I- s PARCEL 001 002 003 004 LOT .2 ELK - /...2 QTR SEC y- 5S / 0 005 /45 9. 3, RGE / sA/ /g 1 1--- s'c., r.f- .5-e- CNTY _2 ..(4.) Al / 4,..3 7 C. 7 006 007 008 009 ' TWP SEC Av4= 3Z" 524:- 7. 6. Claim/ Date 9 /7/7 7 I ---h. 1-- I I -4/4"1 'y 4i ..re .s F .4,4..,Jra.I f Ain 3-,.. SF _AL__ I + __F__ .5 , _./ .. 3 t 1 ) I 1 I- 010 011 012 013 014 015 016 017 018 019 020 s-c .5 Total Acres This Page Contact Range= Data Source 12 PARCEL 001 002 ACRES to Date LOT BLK QTR SEC TWP SEC RGE 004 005 006 007 008 009 010 011 012 013 014 015 016 017 018 019 020 Examined By: 'Total Acres This Page Contact Range= Date: to CNTY ¢ff 6 DNRC EXAMINATION WORKSHEET POU ADDENDUM of Page Data Source eY 7 9 4.2 7 LOT ACRES PARCEL 001 002 003 004 005 006 007 008 009 010 011 012 013 014 015 016 017 018 019 020 Claim! fr-'7 Date 6/.5-z279 ELK QTR SEC SEC TWP RGE / s t.,-/ se CNTY /41-1- 5k Se .3. 4. .5": .2_ 5 .5747, 7 SE s F -g.. st.er 7. 5 g. S3'. 3 Total Acres This Page Contact Range = to Date Data Source 12 ACRES PARCEL 001 002 003 004 005 006 007 008 009 010 011 012 013 014 015 016 017 018 019 020 Examined By: LOT BLK 'Total Acres This Page OTR SEC TWP SEC Contact Range= Date: RGE to CNTY FILE S EP 1 2 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION - CLARK FORK RIVER BETVaantra BLACKFOOT RIVER AND FLATHEAD RIVER BASIN (76M) 5 1991 Water Court 3 4 6 6 7 8 9 IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER DRAINAGE AREA, INCLUDING ALL TRIBUTARIES OF THE CLARK FORK RIVER BETWEEN THE BLACKFOOT RIVER AND FLATHEAD RIVER IN LAKE, MINERAL, MISSOULA AND SANDERS COUNTIES, MONTANA. Cause No. 76M-13 76M-W-099158-00 76M-W-099417-00 76M-W-099419-00 76M-W-099420-00 ,76M-W-111322-00 76M-W-111323-00 STATEMENT 10 11 CLAIMANT: FREY--Bricker--Wheeler 12 OBJECTOR: Wheeler--Bricker 13 COMES NOW, DOUGLAS R. AUSTIN, attorney for Claimants 14 Wheelers, and advise the water master that the place of 15 use worksheets prepared by John Westenberg of the DNRC, 16 showing pre and post interstate acres irrigated on the 17 Frey-Bricker ranch (58.5 acres and 58.3 acres respectively), 18 have been reviewed. Even though the acreage is slightly 19 more than indicated by the evidence at the hearing, it 20 is probably accurate. Wheelers have no objection to the 21 use of these worksheets as a basis for the Frey-Bricker 22 water rights, so long as the water rights granted to Wheelers 23 in the proposed Order are not altered. 24 DATED this 43/ day of _re/9 boo" 25 Douglas STATEMENT Austin , 1991. ¢ y ¢- ¢t " ff ¢ ¢ ¢ - ¢ ¢ ¢ ¢" ¢r; ¢ $ ¢ ¢[ t. ¢ A 0.4 '"\i' ¢'-'%-0..141. , 4 et? ¢N ....... 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