Ashley, Hubbard, Mott

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IN THE WATER COURT 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 ANDUNDERGROUND,) 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-60 43B-W-008955-00 F77 R r al 4 ra7,P 61v DEC 2 8 1992 C'ki cr'g PI 1 k:41' CLAIMANT: Frank E. Ashley and Mary J. Ashley (Former Charles B. Hubbard and Janice D. Hubbard (Present Owners) M OBJECTOR: Frank E. Ashley, Maryanne Mott MASTER'S REPORT FINDINGS OF FACT 1. Frank E. Ashley objected to the number of acres irrigated on this Frank E. Ashley and Mary J. Ashley irrigation claim 43B-W-008955-00. 2. Maryanne Mott objected to the existence of the right, ownership, flow rate, volume and priority date. 3. Frank E. Ashley filed a Notice of Intent to Appear. 4. On May 26, 1987 a Water Right Transfer Certificate was filed recording the transfer of this claim from Frank E. Ashley and Mary J. Ashley to Charles B. Hubbard and Janice D. Hubbard. 5. On June 27, 1990 Charles Hubbard, Janice Hubbard and Maryanne Mott filed a Stipulation and Withdrawal of Objection which specifies a change to the priority date. 6. There was a Decree entered in 1938 and a Supplemental Decree entered in 1969 of the water rights on Tom Miner Creek. This right which was appropriated in the late 1950's or early 1960's was not included in the Supplemental Decree. 7. The Temporary Preliminary Decree states that the priority date is April 15, 1961. 8. The priority date should be June 1, 1970. 9. On July 31, 1990 Frank Ashley and Mary Ashley filed a Withdrawal of Objection. 10. The acres irrigated, ownership, volume and flow rate do not require change. CONCLUSIONS OF LAW I. The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. §85-2-233. Section 89-829-R.C.M. (1957), entitled Procedure for appropriating water of adiudicated streams, states that one desiring to appropriate waters from a previously adjudicated source shall file a petition with the Court which issued the prior decree. This statute also specifies other requirements concerning the petition filing. The petition process set out in Section 89-829 R.C.M. (originally enacted in 1921) is the exclusive method of acquiring a water right on an adjudicated stream. Anaconda Nat. Bank v. Johnson et al., 75 Mont. 401, 244 P. 141 (1926). However Section 89-837 (1921) provides some relief for those who fail to use the -2- petition process. It states: 89-837. (7126) Penalty for noncompliance with act. Failure to comply with the provisions of this act deprives the appropriator of the right to use any water of such stream, or other source of supply, as against any subsequent appropriator mentioned in or bound by a decree of the court. "[T]his act" refers to the act originally passed in 1921. Section 89-829 was section 4 of that act and Section 89-837 was section 11. The claimants have specified a change in their priority date so that it is junior to all the rights in the Supplemental Decree. This removes the opportunity for anyone in the Supplemental Decree to be deprived of his water right. IV. Upon review of the Stipulation and Withdrawal of Objection, it appears that the change to priority date specified by this Stipulation is proper and is accepted by this Court. V. The priority date should be changed from April 15, 1961 to June 1, 1970. VI. The change states in the Findings of Fact should be made to correct the Temporary Preliminary Decree in the Yellowstone River Above and Including Bridger Creek Basin (43B). DATED this 6-A-.'V day of , 1992. K thryn L W. Lambert Senior Wa er Master -3- 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. Frank E. & Mary J. Ashley 426 S. 7th Livingston, MT 59047 Maryanne Mott P. O. Box 670 Emigrant, MT 59027 Charles B. & Janice D. Hubbard Route 1, P. 0. Box 657 Emigrant, MT 59027 David Pengelly, Attorney P. O. Box 8957 Missoula, MT 59807 Sarah Nash Zimmer, Attorney P. O. Box 1330 Bozeman, MT 59715 DATED this#aL day of 0 , 1992. a jalogO udith A. Salvas Deputy Clerk FiLF IN THE WATER COURTS OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASINAN3p)7 1990 IN THE MATTER OF THE ADJUDICATION ) CASE NO. 43B-60 Montana Water Court OF THE EXISTING RIGHTS TO THE USE ) OF ALL THE WATER, BOTH SURFACE AND ) STIPULATION AND WITHDRAWAL UNDERGROUND WITHIN THE YELLOWSTONE ) OF OBJECTION RIVER ABOVE AND INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER ) CREEK IN GALLATIN, PARK, SWEET GRASS AND STILLWATER COUNTIES, MONTANA. ____L COME 'CCW claimants CHARLES hUBBARD and JANICE HU3BARD, and MARYANNE MOTT, objector, by and through her duly authorized agents, and hereby stipulate as follows: 1. Charles and Janice Hubbard are the successors in interest to the original claimants of claim number 43B-W-018955 claiming 2.5 miner's inches from Tom Miner Creek with a priority date of April 15, 1961. 2. Maryanne Mott objected to claim number 43B-W-018955 on the grounds that the water right claim was not included in the Tom Miner Creek decree and therefore was invalid to the extent it claimed a priority date of 1961. 3. Charles and Janice - Hubbard, the present claimants, acknowledge that the priority date of this water right should be amended to June 1, 1970. 4. This Stipulation is made to settle objections to the above-referenced water claims without further litigation. Therefore, no portion of this Stipulation shall be used or construed as an admission against the interests of any party and does not necessarily represent the legal or factual positions of any party in their assertion of beneficial historic or current use of water in accordance with the laws of the State of Montana. 5. This Stipulation was entered into and executed voluntarily by Claimants and Objectors in good faith, and without any fraud, misunderstanding, misrepresentation, overreaching, duress, or undue influence, whatsoever. 6. When the above changes are made part of the Temporary Preliminary and all subsequent Decrees and so long as the above listed changes a ,--e' ; nco ,-pora i d i nto sa i d De(;rees, the Notice of Objection of Maryanne Mott shall be deemed to have been withdrawn. Dated this j-5 day of 01 -, 1990. NIJAkILaA4 CHARLES HU BARD JAXCE HUBBARD Dated this 0-5 day of A il, 1990. MARYANNE MOTT bY 6'47 Authorized Agent

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