Brown, Burk, Century Warehousing, Dunn, Milesnick Ranch, Peterson, Voyich
Annotate this Case
Download PDF
Montana Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state mall') (406) 586-4364 °Id FOP Lg, lag IN THE WATER COURT OF THE STATE OF MONTANA efet YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B)4t ' ******************** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE YELLOWSTONE RIVER ABOVE AND ) INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) CASE 43B-156 43B-W-193560-00 43B-W-193561-00 43B-W-193562-00 43B-W-193563-00 433-W-193564-00 43B-W-194521-00 CLAIMANT: Daniel L. Voyich, Dolly Burk, Century Warehousing, Inc. OBJECTOR: Daniel L. Voyich, Dolly Burk, John E. Dunn James and Wanda Brown, Milesnick Ranch Wayne and Rosalene Peterson, Century Warehousing, Inc. ORDER ADOPTING MASTER'S REPORT Pursuant to Montana Code Annotated, §85-2-233(4), the above entitled case was assigned to Senior Water Master Kathryn L. W. Lambert. On November 1, 1993 the Senior Water Master issued a report containing Findings of Fact and Conclusions of Law. Copies of the report were served upon the parties. Over ten (10) days have elapsed since service, and no objections to the Findings and Conclusions have been filed by any party. The Court has reviewed carefully the Senior Water Master's Findings and Conclusions. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court adopts the Master's Report and ORDERS that changes recommended in the Master's Conclusions of Law be made to the abstract of claim(s) listed above as they appear in the Temporary Preliminary Decree of the Yellowstone River Above and Including Bridger Creek Basin (43B) DATED this ?6- day of A).04rA,A;A,, , 1993. C. Bruce Loble Chief Water Judge CERTIFICATE OF SERVICE I, Judith A. Salvas, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above ORDER ADOPTING MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States . mail. Daniel L. Voyich P. 0. Box 410 Livingston, MT 59047 Wayne & Rosaline Peterson 602 Comet Blvd. Livingston, MT 59047 Dolly Burk 1211 Yellow Pine Dr. Missoula, MT 59801 Kent Douglass, Attorney 206 E. Callender Livingston, MT 59047 David W. DePuy, Attorney P. O. Box 487 Livingston, MT 59047 Tom Milesnick 5808 Dry Creek Road Belgrade, MT 59714 John E. Dunn 483 Fleshman Livingston, MT 59047 James & Wanda Brown Box 158 Livingston, MT 59047 Milesnick Ranch kJ. Stanley Milesnick 412 Bridger View Dr. Belgrade, MT 59714 DATED this c;1 el*" day of /114.114444li , 1993. udith A. Salvas Deputy Clerk IN THE WATER COURT OF THE STATE OF MONTANA ******************** NOTICE OF FILING OF MASTER'S REPORT 199 3 riontari ¢ Wetter Cut TO: ALL PARTIES RE: CASE 43B-156; 43B-W-193560-00, 43B-W-193561-00, 43B-W-193562-00, 43B-W-193563-00, 433-W-193564-00 and 43B-W-194521-00 This is to provide you with Notice that the Water Master has filed a Master's Report (Findings of Fact and Conclusions of Law) with the Clerk of the Water Court for the water right(s) listed above. A copy of the Master's Report is enclosed with this Notice. 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 objection 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 1st day of November, 1993. 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) hOntana Water Court IX) Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 - 1 1993 IN THE WATER COURT OF THE STATE OF MONTANA V;,'"GL:::12 YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) ******************** IN THE MATTER OF THE ADJUDICATION OF ) THE EXISTING RIGHTS TO THE USE OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE YELLOWSTONE RIVER ABOVE AND ) INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) CASE 43B-156 43B-W-193560-00 43B-W-193561-00 43B-W-193562-00 43B-W-193563-00 43B-W-193564-00 433-W-194521-00 CLAIMANT: Daniel L. Voyich, Dolly Burk, Century Warehousing, Inc. OBJECTOR: Daniel L. Voyich, Dolly Burk, John E. Dunn James and Wanda Brown, Milesnick Ranch Wayne and Rosaline Peterson, Century Warehousing, Inc. MASTER'S REPORT The hearing of this matter was held before Water Master Kathryn L. W. Lambert on July 11, 1990 in the Community Room, Park County Courthouse, Livingston, Montana. Kent Douglass appeared on behalf of Wayne Peterson and Rosalene Peterson. Wayne Peterson testified. Exhibits 1P through 10P, 12P and 13P were admitted without objection. Tom Milesnick appeared on behalf of himself and Milesnick Ranch. Wanda Brown appeared on her own behalf. John Dunn appeared on his own behalf. Exhibits 1D through 4D were admitted without objection. David W. DePuy appeared on behalf of Dolly Burk and Daniel L. Voyich. Daniel L. Voyich and Joe Lawellin testified. Exhibits 1V through 31V were admitted without objection. At the close of the testimony the parties agreed to a field investigation to determine the number of acres irrigated in section 23. On July 16, 1990 an Order For Field Investigation was entered. On August 20, 1990 the Field Investigation Report was filed by Rusty Taylor, Water Resource Specialist III, Montana Ceurt Department of Natural Resources and Conservation. Post-trial briefs were filed by David W. DePuy, Kent Douglass and John Dunn. Upon review of the Statements of Claim, testimony, exhibits, post-trial briefs and the Field Investigation Report the following Findings of Fact and Conclusions of Law are made. FINDINGS OF FACT AND CONCLUSIONS OF LAW Conclusions of Law 1) The Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant . to Mont. Code Ann. §85-2-233. Conclusions 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. §3-7-224. Finding of Fact 1) The source of all these claimed rights is currently called Fleshman Creek. Historically it has been referred to as Fleishman Creek. 43B-W-193560-00 Finding of Fact 2) Wayne Peterson and Rosalene Peterson objected to the acres irrigated of this Dolly Burk and Daniel L. Voyich irrigation claim. Finding of Fact 3) At the hearing David W. DePuy stated that the claimants were withdrawing this claim as it duplicates claim 433-W-193562-00. Conclusion of Law 3) As this claim has been withdrawn it should not appear in the Preliminary or Final Decree of the Yellowstone River Basin Above and Including Bridger Creek Basin (43B). 43B-W-193561-00 Finding of Fact 4) Wayne Peterson and Rosalene Peterson objected to the ownership of this Dolly Burk and Daniel L. Voyich irrigation claim. Finding of Fact 5) Daniel L. Voyich and Dolly Burk filed a Notice of Intent to Appear. Conclusion of Law 4) The priority date, place of use, -2- maximum acres irrigated and flow rate were not included in the Peterson timely filed objection. It is clear that inclusion of these issues in the hearing is in effect an amendment of the pleadings under Rules 15(a) and 15(b) Mont. R. Civ. P. The timely filed objection of the Petersons was therefor amended to include priority date, place of use, maximum acres irrigated, and flow rate. Finding of Fact 6) This claim is for 225.00 miners. inches of Fleshman Creek, high or flood water only, priority date December 31, 1907. Finding of Fact 7) The March 25, 1982 Affidavits of Norris B. Spangler and John W. Hankins are attached to the Statement of Claim. Mr. Spangler has been familiar with the Voyich field in section 23 since 1908 and Mr. Hankins has been familiar with the same field since 1913. Both Affidavits state that as much water as was wanted has been taken and used to irrigate that field as far back as they can recall. There is no specific mention of high water, just that the different owners have always taken as much water as they wanted. Finding of Fact 8) The April 22, 1985 Affidavit of James A. Dunn was attached to the Peterson objection. It states on page 2 "In 1930, we had one water right decree of 90 inches to use on Section 23, Township 2 South, Range 9 East. Any flood water rights beyond 90 inches was after the other decreed rights." Finding of Fact 9) Joe Lawellin testified that he recalls taking as much water as he wanted when he and his father irrigated section 23 for owner Mike Bryeson in 1934. Finding of Fact 10) Daniel Voyich testified that he has been using high or flood water in April or May of every year. He testified that he takes as much as he wants just as everyone else does on Fleshman Creek. Conclusion of Law 5) As this is a use right, the priority date should be the date of first use. Conclusion of Law 6) As high or flood waters were used in 1908, the priority date should be changed to April 1, 1908. Finding of Fact 11) The Temporary Preliminary Decree states that the number of maximum acres irrigated is 103.00. Finding of Fact 12) The maximum acres irrigated should -3- be 92.00. Finding of Fact 13) The Temporary Preliminary Decree states that the place of use is: ACRES OTR.SEC. SEC. TWP. RGE. COUNTY NENW SENW NESW NWNE SWNE NWSE 23 23 23 23 23 23 02S 02S 02S 02S 02S 02S 09E 09E 09E 09E 09E 09E Park Park Park Park Park Park 17.00 25.00 5.00 36.00 19.00 1.00 Total 103.00 of Fact 14) The place of use should be: ACRES OTR.SEC. SEC. E2NENW 13.30 SENW 21.40 N2NESW 3.50 NNE 33.50 19.80 SWNE ¢ NWNWSE 0.50 Total 92.00 Finding of Fact 15) 23 23 23 23 23 23 TWP. RGE. COUNTY 02S 02S 02S 02S 02S 02S 09E 09E 09E 09E 09E 09E Park Park Park Park Park Park The Temporary Preliminary Decree states that the flow rate is 3.90 cfs (156.00 miners inches) which is 1.50 miner's inches per acre. Finding of Fact 16) Due to the reduction in maximum acres irrigated, the flow rate should be reduced to 3.45 cfs (138.00 miners inches). It is noted that the total flow of this right and the 1872 right is 5.70 cfs (228.00 miner's inches) which is commensurate with the wear marks in the throat of the Voyich Parshall flume. Dan Voyich testified that the wear marks reached .54 of a foot on the flume which converts to a flow of "two hundred some inches". Conclusion of Law 7) The maximum acres irrigated, place of use and flow rate should be changed as specified in Findings of Fact 12, 14 and 16. 43B-W-193562-00 Finding of Fact 17) Wayne Peterson and Rosalene Peterson objected to the ownership of this Dolly Burk and Daniel L. Voyich irrigation claim. Conclusion of Law 8) The place of use and maximum acres irrigated were not included in the Peterson timely filed objection. -4- It is clear that inclusion of these issues in the hearing is in effect an amendment of the pleadings under Rules 15(a) and 15(b) Mont. R. Civ. P. The timely filed objection of the Petersons was therefor amended to include place of use and maximum acres irrigated. Finding of Fact 18) Daniel L. Voyich and Dolly Burk filed a Notice of Intent to Appear. Finding of Fact 19) The Temporary Preliminary Decree states that the number of maximum acres irrigated is 103.00. Finding of Fact 20) The maximum acres irrigated should be 92.00. Finding of Fact 22) The Temporary Preliminary Decree states that the place of use is: ACRES 17.00 25.00 5.00 36.00 19.00 1.00 Total 103.00 QTR.SEC. SEC. TWP. RGE. COUNTY NENW SENW NESW NWNE SWNE NWSE 23 23 23 23 23 23 02S 02S 02S 02S 02S 02S 09E 09E 09E 09E 09E 09E Park Park Park Park Park Park Finding of Fact 23) The place of use should be: ACRES Total OTR.SEC. SEC. TWP. RGE. COUNTY 13.30 21.40 3.50 33.50 19.80 0.50 92.00 E2NENW SENW N2NESW NWNE SWNE NWNWSE 23 23 23 23 23 23 02S 02S 02S 02S 02S 02S 09E 09E 09E 09E 09E 09E Park Park Park Park Park Park Conclusion of Law 9) The changes to maximum acres irrigated and place of use specified in Findings of Fact 20 and 23 should be made to correct the Temporary Preliminary Decree of the Yellowstone River Above and Including Bridger Creek Basin (43B). 43B-W-193563-00 Finding of Fact 24) Century Warehousing, Inc., Wayne Peterson, Rosalene Peterson, John Dunn, Jim Brown, Wanda Brown, Stan Milesnick and Tom Milesnick objected to the ownership of this Dolly Burk and Daniel L. Voyich irrigation claim. -5- Finding of Fact 25) Daniel L. Voyich and Dolly Burk filed a Notice of Intent to Appear. Finding of Fact 26) On January 8, 1990 Century Warehousing, Inc. filed a Withdrawal of Objection which does not specify any changes to be made. Finding of Fact 27) The following history details the use and ownership of this water right. A. This claim was decreed in case number 2566, Sixth Judicial District, Park County, Montana, by the Hon. Frank Henry on May 23, 1907. Paragraph I states: That the plaintiff, the Livingston Land & Irrigation Company, a corporation, is the owner of, and in possession of and entitled to the possession of all of the Northwest Quarter of Section Twenty-Three and the Northwest Quarter of Section Twenty-Two in Township Two South of Range Nine East, containing in all, three hundred and twenty acres, more or less, according to United States Government survey, and that the said plaintiff is the owner of and is entitled to the use and enjoyment of Ninety (90) Inches, or a flow equivalent to Two and One Fourth (2 1/4) Cubic Feet per second of time of the waters of Fleishman Creek, and its tributaries, appropriated March 1st, 1872, for the necessary irrigation of the lands above described. 2. That the plaintiff, the Livingston Land & Irrigation Company, a corporation, is the owner of and in possession of and entitled to the possession of all the land described in the preceding paragraph and that the said plaintiff is the owner of and entitled to the use and enjoyment of Ninety (90) Inches or a flow equivalent to Two and One-Fourth (2 1/4) Cubic Feet per second of time of the waters of Fleishman Creek, appropriated July 3rd, 1889, for the necessary irrigation of the lands -6- above described. The Complaint filed by the Livingston Land and Irrigation Company initiating the suit which resulted in the Decree above, alleges a water right for 120 inches, priority date June 1, 1889. Judge Henry reduced the right to 90 inches and determined that the priority date was July 3, 1889. The Complaint specifies that the 1889 water right was used on section 22 and that the 1876 (alleged an 1876 priority date which Judge Henry found to be 1872) water right was used on section 23. Although the Complaint specifically ties the 1889 right to section 22 and the 1876 right to section 23, the Decree is more general and does not make that distinction. B. On March 1, 1915 The Yellowstone Valley Land and Irrigation Company (the new name of the Livingston Land & Irrigation Company) leased the northwest quarter of section 22 to Joseph Spangler. The lease specifies the use of the July 3, 1889 Fleishman Creek water right. C. On March 1, 1919 The Yellowstone Valley Land and Irrigation Company leased the northwest quarter of section 22 to C. Roup. The lease specifies the use of the July 3, 1889 Fleishman Creek water right. D. On March 30, 1927 a Warranty Deed was entered between the Yellowstone Valley Land & Irrigation Company and Ella K. Break. This Deed transfers 160 acres in the northwest quarter of section 22 "TOGETHER, with all the tenements, hereditaments, appurtenances, water rights and water ditches to the same belonging." There is no specific water right or priority date listed. E. On January 8, 1934 Ella K. Break and R. Break filed a Quit Claim Deed transferring the northwest quarter of section 22 to 0. T. Connelley. No specific water right is named but the Deed does state "...together with all the tenements, hereditaments, and appurtenances thereunto belonging." F. On March 1, 1945 a Warranty Deed was filed between Orlando T. Connelley and Ruby E. Connelley, his wife, to Tam Bare and Donald Bare. This Deed states "Together with all water rights, and rights in ditches, canals and laterals, and rights of way therefor, appurtenant to said premises or used in connection therewith, including the following: 90 inches of waters of Fleshman Creek appropriated 1889." (emphasis added). 7- G. On February 10, 1955 Tam Bare, Carrie L. Bare and Donald Bare entered a Warranty Deed transferring the northwest quarter of section 22 to Obie Signs, Inc. The Deed transfers all appurtenances. Specific water rights are not listed. H. In 1955 Judge Benjamin E. Berg drafted a document entitled "Water Rights Fleshman Creek". The eighth right is the July 3, 1889 90 inch right. Under "present owner" it says "Mr Bare, Not used f-- many years." I. On June 23, 1961 Donald Bare, Tam Bare and Louise Bare entered a Warranty Deed transferring a one acre parcel within the ' northwest of section 22 to Ernest F. Morgan and Georgia Morgan. No water rights were specified but all appurtenances were transferred. J. On April 30, 1964 a Final Order of Condemnation was entered by Hon. George J. Allen, Sixth Judicial District, Park County, Montana. Approximately 30.81 acres were condemned for construction of Interstate 90. K. On May 4, 1966 Tam Bare, Louise Bare and Donald Bare entered into a Warranty Deed transferring 3.12 acres to John W. Nelson and Gladys V. Nelson. No specific water right is listed but all "...appurtenances, water rights and water ditches..." were transferred. L. On September 30, 1970 Tam B. Bare and Carrie Louise Bare entered a Warranty Deed transferring 2.00 acres to Thomas G. Mustagog and Margaret A. Mustagog. No specific water right is listed but all "...appurtenances, water rights and water ditches..." were transferred. M. On November 13, 1972 Tam B. Bare and Carrie Louise Bare entered a Warranty Deed transferring 71.65 acres in section 22 to Thomas G. Mustagog and Margaret A. Mustagog. The Deed states: There is also included all water rights appurtenant to said premises, including but not necessarily limited to: 90 Miner's Inches of the waters of Fleshman Creek, as decreed to the Livingston Land and Irrigation Co. as of date July 3, 1889, in that certain action in the District Court of the -8- Sixth Judicial District of the State of Montana, entitled "Livingston Land and Irrigation Co., Plaintiff, v. William Alkire, et al. Defendants" by Decree dated June 3, 1907. (emphasis added). N. On April 6, 1977 a Sheriff's Deed was filed which transfers the 71.65 acres in section 22 from the Sheriff of Park County to Empire Federal Savings and Loan Association of Livingston. Using the same language as quoted above, the Deed also transfers the July 3, 1889 water right for 90 inches with the property. 0. On May 19, 1978 an Abstract of Contract for Deed was entered between Empire Federal Savings and Loan Association of Livingston, Montana and Century Warehousing, Inc., Garth R. Sime and Gene E. Cook. This also uses the same language found in M. above to transfer the 1889 water right with the property. P. On November 22, 1988 Garth R. Sime executed a Warranty Deed transferring his undivided one-third interest in the 71.65 acres and the 1889 water right for 90 inches to George E. Cook and Alice M. Cook. In summary, it appears that the 1889 right was historically used on section 22 and was specifically identified and transferred in some of the documents conveying section 22. There is no evidence that this water right was used in section 23 prior to the sale of section 22 to Ella Break in 1927. Finding of Fact 28) Dan Voyich testified that he and his family always thought that the 1889 water right Was purchased by Luis Voyich when he purchased section 23, and therefore, the 1889 water right had not been transferred by the Yellowstone Valley Land & Irrigation Company when it sold the northwest quarter of section 22 to Ella Break. He testified that he has been irrigating the ranch since at least 1955 and has, on occasion, used the 1889 water right during the high or flood water season. Since enacted in 1895 Montana Conclusion of Law 10) statutes have defined appurtenances as follows: Appurtenances. A thing is deemed incidental or appurtenant to land when it is by right used with the -9- land for its benefit, as in the case of a way, or watercourse, or a passage for light, air, or heat from or across the land of another. Sec. 67-211 R.C.M., currently sec. 70-15-105 Mont. Code Ann. Conclusion of Law 11) Appurtenances are transferred with the land unless expressly reserved. Tucker v. Jones, 8 Mont. 225, 16 P. 571 (1888) and Smith v. Denniff, 24 Mont. 20, 57 P. 557 (1900). Conclusion of Law 12) As the 1889 water right was first used on section 22, it became an appurtenance to section 22. Conclusion of Law 13) As an appurtenance to section 22, the 1889 water right has been transferred with section 22 because there have been no express reservations of that water right in the chain of title documents. Finding of Fact 29) The chain of title of section 23 does not include any mention of the 1889 water right as an appurtenance to section 23. Since the issuance of the 1907 Decree all the transfer documents for section 23 refer generally to appurtenances or to appurtenant water rights. No water right or rights were ever identified. Conclusion of Law 14) The 1889 water right was not used to irrigate section 23 prior to the 1927 transfer of section 22 to Ella Break and therefore was not an appurtenance to section 23. Conclusion of Law 15) As the 1889 water right was not an appurtenance to section 23 it was not transferred as an appurtenance through the various transfers of section 23. Conclusion of Law 16) As the 1889 water right was already appurtenant to section 22 when it was transferred to Ella Break in 1927 and as there is no language in any of the transfers -10- of sections 22 and 23 specifying a joint tenancy of the 1872 and 1889 water rights, the allegations of joint tenancy need not be addressed. Finding of Fact 30) The current owner of section 22 is Century Warehousing, Inc. Conclusion of Law 17) As Dolly Burk and Daniel Voyich are not the owners of section 22, they have no basis for claiming the ownership of the appurtenant 1889 water right. Conclusion of Law 18) Claim 43B-W-193563-00 should be dismissed and should not appear in the Preliminary or Final Decree of the Yellowstone River Above and Including Bridger Creek Basin (43B) 43B-W-193564-00 Finding of Fact 31) Century Warehousing, Inc., Wayne Peterson, Rosalene Peterson, John Dunn, Jim Brown, Wanda Brown, Stan Milesnick and Tom Milesnick objected to the ownership of this Dolly Burk and Daniel L. Voyich irrigation claim. Finding of Fact 32) Daniel L. Voyich and Dolly Burk filed a Notice of Intent to Appear. Finding of Fact 33) On January 8, 1990 Century Warehousing, Inc. filed a Withdrawal of Objection which does not specify any changes to be made. Finding of Fact 34) At the hearing David W. DePuy stated that the claimants were withdrawing this claim as it duplicates claim 43B-W-193563-00. Conclusion of Law 19) As this claim has been withdrawn it should not appear in the Preliminary or Final Decree of the Yellowstone River Above and Including Bridger Creek Basin (43B). 43B-W-194521-00 Finding of Fact 35) Daniel L. Voyich and Dolly Burk objected to the ownership, priority date, purpose of right, volume, place of use, acres irrigated, source, flow rate, point of diversion, means of diversion, period of use and alleged that the claimant Century Warehousing, Inc. does not have an irrigation right for Fleshman Creek water. This claim is for the 1889 Fleshman Creek water right which is appurtenant to section 22. Finding of Fact 36) Century Warehousing, Inc. filed a Notice of Intent to Appear. Finding of Fact 37) On December 12, 1989 Century Warehousing, Inc. filed a Withdrawal of Claim which states: It was the intent to use the water, but due to the condition of the ditches, and no use for many years, claimant withdraws his claim. Conclusion of Law 20) As this claim has been withdrawn it should not appear in the Preliminary or Final Decree of the Yellowstone Basin Above and Including Bridger Creek Basin (43B). DATED this c(2 9 , 1993. day of K-thryn je. W. La ¢ert Senior 4 F., ter Master 9 CERTIFICATE OF SERVICE I, Judith A. Salvas, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail. Daniel Voyich P. 0. Box 410 Livingston, MT 59047 Wayne & Rosaline Peterson 602 Comet Blvd. Livingston, MT 59047 David W. DePuy, Attorney P. O. Box 487 Livingston, MT 59047 Kent Douglass, Attorney 206 E. Callender St. Livingston, MT 59047 Dolly Burk 1211 Yellow Pine Dr. Missoula, MT 59801 Jack Dunn 2913 Millice Ave. Billings, MT 59102 Tom Milesnick 5805 Dry Creek Rd. Belgrade, MT 59714 Milesnick Ranch 9.5Stan1ey Milesnick Belgrade, MT 59714 A DATED this AL?"- day of 917 CAP16.44<_ , 1993. IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) * * * * * * * * * * * * * * * * * * * * IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE YELLOWSTONE RIVER ABOVE AND ) INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) WITHDRAWAL OF .-:LATM CJU L1 Lk) q '4. E-1A0u tk./ Co, I UC., , withdraw the Statement of Claim for Existing Water Rights Numbered L-133-6,)- tql+57_1-00 j1 Lo AS -1- t--ka COAdt1-101U zArs CL A t Q7E. nF vvr- , for the following reason(s): u'r "TO 1" 1A L t VS, irckç,Ad duL rEt2., !VD QSLAy n -rkatckit/si6d . RA,,N C_Lit 1771 I understand that this claim win therefore be terminated. DATED this (2 7A day of 1)2_caw\b2r , 1989. -1.)04,,NALJTAA,4 CEirrviri (4.)ftEhoustoq, IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) ******************** .) IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) WITHIN THE YELLOWSTONE RIVER ABOVE AND ) INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) CASE NO. 43B-156 0) Sive oi Vitater Courts WITHDRAWAL OF OBJECTION I, CE-Lrcuri GUAeEt-k-biStlY0 ) I QC. "F\ FILE , withdraw Notice of Objection to Claim Number 433-W- 1935(04 upon entry of a decree with the following correction(s) DATED this ,._31,c1 day of 36-Liu Lf 1989. CEri Nu $1- 4( WA-RE kOLIS a." Lt r, &Cal Cuc (IA IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) ******************** IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) CASE NO. 43B-156 WITHIN THE YELLOWSTONE RIVER ABOVE AND ) INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) WITHDRAWAL OF OBJECTION I, C EV) Vo Uii&W. , withdraw Notice of Objection to Claim Number 433- Lo -1.'13563 upon entry of a decree with the following correction(s) DATED this OAd, day of NJAIJUtktti , 1989. C Ek,)ru Zw3P-C,0 cub,-"Alq--4,a,zaq We> 6C.. BLA CLIZtattiil DEPAR_ .ENT OF NATURAL RESC .LCES AND CONSERVATION BOZEMAN WATER RIGHTS FIELD OFFICE FIELD INV.STIGATION REPORT TO Kathryn Lambert, Aontana Water Court FROM: Rusty Taylor, Bozeman DNRC Field Office APPROVED BY: Larry '?-loiman, Bureau Chie f ".). 11 \1). DATE: August 14, 1990 RE: Case No. 43-156, Claim Nos. W-193562 and W-193563 (Voyih/Burk) ¢ ¢ THORIzATION AND PURPOSE: Pursuant to a Jul y 16, 1990 Order from the Montana Water Court, a field investigation of Water Right Claims W-193562 and W-193563 was completed on July 27, 1990 oy Rusty Taylor of the Department of Natural Resources and Conservation (DNRC). This investigation was completed to identify the number of aces irrigated and legal land descriptions of those acres. SOURCES OF INFORMATION: Primary source: - Field investigation completed by Rusty Taylor on July 27, 1990. C;riginal claim file. Secondary sources: - USDA aerial photograph 179-124, dated September 15, 1979. - Park County Water Resources Survey (WRS), dated 1951. - topography USGS 'Livingston, quadrangle dated map INVOLVED PARTIES: On July 17, 1990 all involved parties were sent letters advising them of the field investigation date and time and giving them notice of their opportunity to attend. Only Dan Voyich accompanied me on the investigation. "AN EQUAL OPPORTUNITY EMPLOYER" 001 ¢lt - AUGZ O990 DScRIPTIOX 01. Montana Water Court Both water rights utilized a common headgate located at the SE 1/4 8111/4 NW1/4, Section 15, CUP 025, ROE 095 on -21eshman Creek. The water is conveyed in a southeasterly direction for about 1-10 miles where it is used to flood irrigate pasture and hay ground on the west edge of Livingston. RESULTS OF INVESTIGATION DIVERSION: The diversion structure is in good wo:knq condition and consists of a headgate bolted onto a 2 foot diameter by 16 feet long culvert. The culvert em p ties into an open ditch which conveys the water about 75 yards to a 3 foot Parshall flume. On this day the staff gage measured 0.36 feet indicating a flow of 2.42 CFS (96.8 According to Hr. Voyich, this metal flume miner's inches). rep l aced an old wooden flume in alp out 1984. PLACE OF USE AND ACRES IRRIGATED: The claimed and decreed place of use and acres irrigated are: OTR SEC ACRES 5.00 36.00 19.00 1,00 NWSE 25.00 006 TOTAL N=YW SENW NESW NWNE SWNE 1.-'.120 001 002 003 004 005 SEC 23 23 23 23 23 23 ROE COUNTY 028 028 028 028 028 028 09E PARK 09E PARK 29E 095 O ciE 09E PARK PARK PARK PARK 103.00 The field investigation found the place of use and acres irrigated to be: ACRES 13.30 002 21.40 3.50 003 004 33.50 005 19.80 0.50 006 92.00 TOTAL QTR SEC SEC TWP RGE COUNTY E2NENW SENW N2NESW NWNE SWNE NWNWSE 23 23 23 23 23 23 028 028 023 02S 028 028 09 7! 095 095 095 09E 095 PARK PARK PARK PARK PARK PARK All 92.00 acres appear to be flood irrigated. The only ground not considered irrigated was about 1.5 acres around a small house adjacent to Fleshman Creek that Hr. Voyich rents out. The 1951 :a .fk County Water Resources SuIrvEy :ehows aLl 91.00 acres irrigated from the same ditch system now oli.imed (Voyich z':-:(rie - 2 :PLE111- NI'AL RIGHTS: The two (2) claims field investigated are 100 supplemental. Claim Nos. W-19?-560, W-I93651 and W-193564 are also listed as supplemental to the two claims reviewed. I understand these th:ee (3) other claims have been consolidated into another case. The acres identified in this report would also pertain to any other claims filed by Mr. Voyich within the same legal land descriptions. PLACE OF USE MAP Case No. 43B-156 Aerial Photo: 179-124, Dated 1979 Photo scale: 4 inches = 1 mile Section 23, TO2S RO9E Diagonal lines represent ground appearing irrigated (92 acres). .Z",10 71 .. .. , . ----: 4' ..4 ,Ii.;t4E.,:ovi.:TA, ...i. -7- 7 -.L__-----=-: ¢:,:_. , _ , , .z.. --. :`'.--. -", - ----'"=- ¢... - --""..- eV' ¢ ...... _ . .....fie"r ,034. ;217.4- ¢.'7"; ¢ :.4.0 ¢12.:-.1r. ..: ¢ ¢ . ..-.)e., et.6 . .s. .#- A ,4A _ e ,..54 - ¢ of ,-/ . . ,...K , OS - l'a ¢ " .. ¢ ...... ..... . . 0,. ,-r; , i .. if L; f ¢ "B ¢ Township No.__2_SOUTH Range No 9 EAST County_P) 1951 PARK COUNTY WRS MAP Case No. 43B-156 Scale: 1 inch = 1 mile Section 23 TO2S RO9E Dark areas indicate irrigation. MI LIVINGSTON DITCH (S.W.C.B.) 111111 PRIVATE IRRIGATION REBER-DUNN DITCH &ERR. Yellowstone River TRACE OF OLD DI SACAJAWEA PARK (CITY) (iII-WM EOGAR DITCH TRACE OF OLD DITCHES Gallatin National Forest H.P.R.R. Yellowstone River Photograph (Pictures) Orientation Map 156 Case No. 4 "Numbers on this map relate to the location the pictures were taken. mato EAST CASE NO. 43B-156 Photo No. 1. Moto Date: Early Spring 1990 .hoto taken by Dan Voyich Subject: Voyich Ditch headgate on Felshman Creek looking up-stream. Photo No. 2. Photo Date: Early Spring 1990 Photo taken by Dan Voyich Subject: Parshall flume on Voyich Ditch. CASE NO. 43B-156 'hoto No. 3. _hoto Date: July 27, 1990 Photo taken by Rusty Taylor Direction of view is south. Subject: irrigated pasture and hay ground. Photo No. 4. Photo Date: July 27, 1990 Photo taken by Rusty Taylor Direction of view is east. Subject: irrigated pasture and hay ground. CASE NO. 43B-156 _noto No. 5. Photo Date: July 27, 1990 Photo taken by Rusty Taylor Direction of view is south. Subject: irrigated pasture and hay ground. Photo No. 6. Photo Date: July 27, 1990 Photo taken by Rusty Taylor Direction of view is southwest. Subject: irrigated pasture and hay ground. TEMPORARY pRELAmINARY DECREE UN YtLLOwSTL.,:_ RIVER ABOVE AND INCLU01NG BR106ER CREEK ABSTRACT OF WATER RIGHT = R RIGHT NUMBER 4.30 -W-19,3502-22 DULLY ,OwN,tg: BURK 1211 YELLOW PINE OR MISSOULA EI,OW RATE: 59801 MT 50047 DANIEL VOYICH PO 80x 410 LIVINGSTON EalORITY PAW MT 1, 187a MAR 2.25 CFS Y2LWIL : 721.00 ACRE FEET PR YEAR STANDARDS ON VOLUMES FUJNO IN Tvg E FINDINGS OF FACT ARE ONLY GUIDELINES. THE VOLUME CALCULATED uSINb THESE STANDARDS MAY BE. MODIFIED BY THE COURT ON INDIVIDUAL OBJECTION. CLIMATIC AREA: 3 12URC: FLESHMAN CREEK MAXIMUm ACRE: 103.00 qz..00 PURPOSE (USEI: IRRIGATION URIOD OF_VS: MAR IS TO DEC 4 E2INTS OF_DIVERSIUN AND MEANS QF DIVERSION: 0T_ 46K QTR SEC SEC IMP RE SE SWNW LiJUNTY 15 025 09E PARK HEADGATE aLAcE OF USE FOR_IRRIGATION ALLEC TwP RGE COUNIY 13.30 001 002 17.00 25.00 003 004 2.i.40 NENW SENw ---5-*-0-0. 3. 5 P 33.o NESw NwNE 005 006 TOTAL . wtrittu: -36-.-0-0 -19-P-0-9- LIAR 103-00 19.80 23 02$ 09E PARK 23 025 09E PAKK 23 025 09E PARK 23 025 09E PARK SWNE 23 025 09E PARK NwSE 23 025 09E PARK 0.50 92.00 uSES OF THE SAME RIGHT. THE USE OF THE R/GHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE 1 RIGHT TO INTERCHANGE THE USE (PURPUSE) OF THE WATER IN ACCORD WITH ¢ HISTORIC PRACTICES. W193560-00. W193562-00. THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE .THE WATER RIGHTS FOLLOWING THIS STATEMENT ARE SUPPLEMENTAL. WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACES OF USE. THE RIGHTS CAN BE COMBINED TO IRRIGATE ONLY OVERLAPPING PARCELS OF THE CLAIMANT'S TOTAL n . .44464.0 ACRES. TH COMBINED VOLUME UP THESE RIGHTS SHALL NUT THE LU EXCEED 1 ,6. 01> 968.20 ACRE-FELT PER YEAR. EACH RIGHT IS LIMITED TO THE FLOW RATE, VOLUME, PLACE OF USE AND BENEFICIAL USE OF THAT INDIVIDUAL RIGHT. W19.L'600 -00, W193561 - 00. WI93562 - 00, W193503 - 00, W1935b4 - 00 SEE GLNERAL FINDINGt:, uF FACT AND CuNCLUS1UNS uF LAW FOR FURTHER DELINEATION OF THIS RIGHT. PAGE TER RIGHT Num8ER 4.p.4 OwNLR: OURK DOLLY 1211 YELLOW PINE OR T MISSOULA DANIEL VOYICH PO BOX 410 MT LIVINGSTON 59tsG I 59047 p RILAI,y DATfr. : JULY 4, 1889 FLOW RATE: 2.2 CFS VOLUME: 721.00 ACRE FEET PER YLAR STANDARDS ON VOLUMES FOUND IN THE FINDINGS OF FACT ARE ONLY GUIDELINES. THE VOLUME CALCULATED USINtG THESE sTANUARDS MAY 8E MODIFIED 13Y THE COURT UN INDIV1DuAL U3JECTION. CLIMATIC AREA 3 SOURCE: FLESHMAN CREEK MAXIMUM AC: PURPOSE 103-00 CIZ.D0 (USE): IRRIGATION PERIOD OF DSE: MAR 15 TO DEC 4 POINTS OF DIVERVON AND MEANS OF DIVERSTUN: 1,0T tILC èTft..SEC SEC, TwP RGE COuN'Y Se-SWNW HEADGATE 16 025 09E PARK EIALL-LJE-V_Zt-E.28-1.Ri4It'ATION 40T ACRES 001 002 003 004 005 006 TOTAL -177,404125.00 -61.0-0"3bv44-1-1.4)-0-1.0% -11-11.-- OTR oS"c7 SEC TwP RGE COUNTY 23 23 23 NwNE SWNE NwSE 13.3o al.40 3.58 33.5v I ct go EC NLNw SENW NESw bL 23 23 025 02S 025 025 09E PARK 09E PARK 09E PARK 09E PARK 09E PARK 09E PARK 23 025 025 ARKS: THIS CLAIM AND THE CLAIM NUMbERS LISTED FULLUNING THIS STATEMENT ARE FILED ON THE SAME FORMERLY DECREED WATER RIGHT. THESE CLAIMS, HOWEVER, SHALL NOT EXCEED THE 90.00M! AS DECREED 1N CASE NO. 256o. THE COURT. AT THIS TIM, MAKES NO DEIERMINATIUN OF CORRECT PREDECESSORS IN INTEREST DR THE. CORRECT DIVISION uF THIS WATER RIGHT AMJNG CLAIMANTS. W19451-00, W193s64-00. THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MuLTIPLE USES OF THE SAME RIGHT. THE USE OF THE RIGHT FOR SEVLRAL Pihè> O5c. DOES NOT INCREASE THE: EXTENT OF THE wATER RIGHT. RATHER IT DEi.REES THE RIGHT TO INTERCHANGE THE US E (PURPOSE) OF THE WATER IN ACCORD wiTH HISTORIC PRACTICES. W193564-00,W193563-00. THE WATER RIGHTS FULLUwING THIS STAIEMENI ARE SUPPLEmENTAL. WHICH MEANS THE RIGHTS HAVE OVERLAPPING PLACEs OF USE. THE RIGHT CAN bE combiNea TO IRRIGATL ONLY UvERLAPPANG PARCELS Of THE CLAIMANT'S TOTAL 42 .0D 10-3-.-a0 ACRES. THE LOMbINEu VOLUME OF THESE MIGHT SHALL NOT EXCELD 968.20 ACkt-FEET PER YLAR. EACH RIGHT IS LIAIILD To THE FLOW RATE. ViLUME, PLACE OF uSE AND BENEFICIAL uSE. UF THAT INDIVIDUAL RIGHT. W193560-00. *193561-00. 6819a:4)2-00, ¢/93563-00. w193564-00 SEE GENERAL FINDINGS OF FACT AND CJi:LLuSIONS UF LAW FOR FuRTHLR DELINEATION uF THIS RIGHT. PAGE 3t92 v aniel Voyich p. 0. Box 410 Livingston, MT 59047 Wayne & Rosaline Peterson 602 Comet Blvd. Livingston, MT 59047 David W. DePuy, Attorney P. O. Box 487 Livingston, MT 59047 Kent Douglass, Attorney P. O. Box 507 Livingston, MT 59047 Dolly Burk 1211 Yellow Pine Dr. Missoula, MT 59801 Jack Dunn 2913 Millice Ave. Billings, MT 59102 Tom Milesnick 5805 Dry Creek Rd. Belgrade, MT 59714 Milesnick Ranch %Stanley Milesnick 412 Bridgerview Dr. Belgrade, MT 59714 Rusty Taylor Water Rights Specialist Bozeman Field Office 111 No. Tracy Bozeman, MT 59715 Larry Holman, Chief Water Rights Bureau 1520 East 6th Helena, MT 59601 iAb 4.\01AAr- DEF '.TMENT OF NATURAL RE' URCES AND CONSERVATION BOZEMAN WATER RIGHTS FIELD OFFICE STAN STEPHENS, GOVERNOR (406) 586 -31 36 111 NORTH TRACY BOZEMAN, MONTANA 59715 July 17, 1990 Daniel Voyich P.O. Box 410 Livingston, MT 59047 RE: Water Court Order to Field Investigate Water Right Claims 43B-W-193562-00 and 43B-W-193563-00 Dear Mr. Voyich: ¢ ¢ The above mentioned Order issued July 16, 1990 requires the Department of Natural Resources and Conservation to field investigate these claims for evidence and extent of historical irrigation. This Order also provides all involved parties an opportunity to be present during the field investigation. This field investigation is scheduled to start on July 27, 1990 at 9:00 AM. If you wish to participate, please call me for details. Sincerely, Rusty Taylor Water Resource Specialist III Bozeman Water Rights Field Office AN EOUAL OPPORTUNITY EMPLOYER'
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
