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Montana Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 IN THE WATER COURT OF THE STATE OF MONTANA CLARK FORK DIVISION CLARK FORK RIVER ABOVE THE BLACKFOOT RIVER BASIN (76G) ****************************** 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 DRAINAGE AREA ABOVE THE BLACKFOOT RIVER, INCLUD'ING ALL TRIBUTARIES OF THE CLARK FORK RIVER ABOVE THE BLACKFOOT RIVER IN DEER LODGE, GRANITE, LEWIS AND CLARK, MISSOULA, POWELL AND SILVER BOW COUNTIES, MONTANA. ) ) ) ) ) ) ) ) ) ) ) CASE 76G-43 76G-W-015903-00 76G-W-015904-00 76G-W-015905-00 ,trki COL CLAIMANT: James P. Struna and Billie J. Struna OBJECTOR: James P. Struna ORDER RECOMMITTING CASE TO MASTER Pursuant to Montana Code Annotated, §85-2-233(4), the above entitled case was assigned to Water Master Douglas Ritter. On August 16, 1995 the 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 Water Master's Findings and Conclusions. The Master's Report recommends changing the flow rate for claim 76G-W-015904-00 from .19 cfs as originally filed to 20 cfs. This change is apparently based on the fact that the Notice of Approp riation filed for this right on January 21, 1922 by A.F. Muchmore claims 800 miner's inches or 20 cfs of flow rate. However the documentation the claimants provided to this Court states that this right has been diverted by means of a 25 horsepower pump since 1955. The claimants did not provide documentation showing that the pump is capable of diverting 20 cfs. Findings of Fact in a Master's Report will be adopted unless clearly erroneous. This writer knows of no 25 HP pump capable of diverting 20 cfs. If the claimant's pump will not divert 20 cfs, then the Master's finding isclearly erroneous. A Notice of Appropriation does not define a water right. Beneficial use over a reasonable period of time defines the right. If circumstances change and a larger quantity of water is no longer beneficially used, then the lesser amount of water beneficially used over a reasonable period of time defines the right. The Montana Supreme Court has held that a twenty-three year period of non use prior to July 1, 1973 raised a rebuttal presumption of abandonment of water rights. See, Matter of Adjudication of Clark Fork River Drainage, 254 Mont 11, 15, 833 P.2d 1120 (1992). A copy of this Supreme Court decision is included in the mailing of this Order. The flow rate of this claim should reflect the amount of water actually put to beneficial use. It should also reflect any permanent changes made to the right prior to July 1, 1973, such as changing from a direct diversion to a pump. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court recommits the case to the Master with the following instructions: Claimants must provide documentation showing the actual amount of water historically put to beneficial use by claim 76G-W015904-00. The Master shall submit an amended report to the Court incorporating documentation establishing the correct flow rate for this claim. DATED this 3e1 day of November 1995. Q te-e-e-e-e-keee__ C. Bruce Loble Chief Water Judge James P. and Billie J. Struna PO Box 353 Drummond, MT 59832 10 STATE v. BOWER 254 Mont. 1 p tracted loss or impairment of the function or process of any bodily ine\pber or organ." Section 45-2-101(59), MCA. Whether Moore's inju created a substantial risk of death is not at issue in this case. The d fondant argues that, because the State did not present expert medica testimony, it was impossible for the District Court to find beyond reasonable doubt that Moore's injury was a serious permanent disfigurement. We disagree. We previvusly have stated that a nonexpert witness is competent to testify as 'to his or her past or present condition. Cain v. Stevenson (1985), 218 MITI. 101, 105, 706 P.2d 128, 131. Further, expert medical testimony is no,t, necessary to prove the permanency of an injury where the permanency is undisputed and apparent from the nature or the injury itsetherin, 218 Mont. at 105, 706 P.2d at 131. [10i In our view, 4 is clear that Moore suffered serious permanent disfigurement. "The\term 'disfigurement' connotes, among other things, deformity, defdsement, marring and/or damage to one's attractiveness." State u. Goedwin (1984), 208 Mont. 522, 529, 679 P.2d 231, 235. Moore testified c14,the extensive scarring on his face and that t, his scars were permanent. lie also testified that at the time of trial, over eight months after theytercation, he was still experiencing numbness in his right cheek nere one of the lacerations occurred. Moore's testimony was uncontroVrted at trial. ¢ The State's failure to present dx, pert medical testimony was not fatal to establishing serious bodily ihjury under the circumstances of this case. The District Court, based ulion the nature of Moore's injury and his uncontroverted testimony, coullfind without the aid of expert medical testimony that Moore suffered sious bodily injury. We hold that, based on the evidence presented aArial, any rational trier of fact could have found the defendant guilty oh e offense of aggravated assault beyond a reasonable doubt. \ Affirmed. CHIEF JUSTICE TURNAGE, JUSTICES T R\ \ WEILER, HUNT and WEBER concur. ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 11 254 Mont. 11 In the Matter of the ADJUDICATION of the EXISTING WATER RIGHTS to the use of all THE WATER, both SURFACE AND UNDERGROUND within the CLARK FORK RIVER DRAINAGE AREA above the BLACKFOOT RIVER, including all Tributaries of the CLARK FORK RIVER above the BLACKFOOT RIVER in Deer Lodge, Granite, Lewis & Clark, Missoula, Powell and Silver Bow Counties, Montana. No. 92-092. Submitted on briefs May 21, 1992. Decided July 2, 1992. 49 St.Rep. 591. 254 Mont. 11. 833 P.2d 1120. WATERS AND WATER COURSES APPEAL AND ERROR 1. Waters and Water Courses City abandoned two water right claims by failing to use claims for over 23 years, although it continued to carry water rights as assets on its books during period of nonuse. R.C.M. 1947 § 89-802. 2. Waters and Water Courses Abandonment of water right is question of fact. R.C.M. 1947 § 89-802. 3. Appeal and Error Standard of review of judge-made findings of fact is whether findings are clearly erroneous. R.C.M. § 89-802. 4. Waters and Water Courses In Montana, appropriation of water is based on its beneficial use; when owner of water right abandons or ceases to use water for its beneficial use, right ceases. R.C.M. § 89-802. 5. Waters and Water Courses Two elements are necessary for abandonment of water right; nonuse of water associated with water right and intent to abandon water right. R.C.M. 1947 § 89-802. 12 ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 254 Mont. 11 6. Waters and Water Courses Evidence of long period of continuous nonuse of water right raises rebuttable presumption of intent to abandon that right and shift burden of proof to nonuser to explain reasons for nonuse. R.C.M. 1947 § 89-802. 7. Waters and Water Courses To rebut presumption of abandonment caused by nonuse of water right, there must be established some fact or condition excusing long period of nonuse, not mere expressions of hope or desire reflecting "gleam-in-the-eye philosophy' regarding future use of water. 8. Waters and Water Courses Only time period before effective date of Water Use Act was relevant to question of whether city had abandoned water right claims through nonuse. R.C.M. 1947, § 89-867(4); MCA 85-2-109(9), 85-2-212. B. Waters and Water Courses Evidence of city's continuing protection of its easement for water pipeline was irrelevant to issue of whether it abandoned related water rights. 10. Waters and Water Courses Because water rights and easements are separate and distinct legal rights, one can be abandoned without abandoning the other. Appeal from Water Courts of State of Montana. Honorable Leif B. Erickson, Judge. See C.J.S. Waters § 181. Appeal was taken from order of the Water Court finding that city had abandoned two water right claims through nonuse. The Supreme Court, Justice Gray, held that city abandoned two water right claims by failing to use claims for over 23 years, although it continued to carry water rights as assets on its books during period of nonuse. Affirmed. For Appellant: M.K. Daniels, Attorney, Deer Lodge. For Respondent: David L. Pengelly, Knight, Maclay & Masar, Missoula. JUSTICE GRAY delivered the Opinion of the Court. This appeal arises from an order of the Water Court. The Water Court found that co-appellant City of Deer Lodge, predecessor in interest to co-appellants Evered and Ramona McQueary, abandoned through nonuse two water right claims in Cottonwood Creek, a ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 13 254 Mont. 11 tributary of the Clark Fork River. The Water Court ordered that the two water right claims shall not appear in the Preliminary or Final Decrees of the Clark Fork River Basin above the Blackfoot River (Basin 76G). We affirm. The issue on appeal is whether the Water Court erred in finding that Deer Lodge abandoned the two water rights in Cottonwood Creek. Pursuant to the statewide adjudication of existing water rights, Deer Lodge filed two claims for municipal use of water out of Cotton- wood Creek. The claims are identified as 76G-W-010397-00 and 76G-W-010398-00 and were obtained by Deer Lodge from a private water company in 1934. Upon the issuance of a Temporary Preliminary Decree for the Clark Fork River Basin above the Blackfoot River (Basin 76G) in 1985, respondents William J. Applegate and Sharon Applegate filed objections to both claims on the basis that the claims had been abandoned by Deer Lodge. . In 1989, before the Water Court ruled on the Applegates' objections, Deer Lodge sold its interest in the two water rights to Evered and Ramona McQueary and filed a water right transfer certificate relating to those rights with the Montana Department of Natural Resour;.1 ces and Conservation. The Department acknowledged the transfers 0., on March 21, 1990, subject to the ongoing adjudication of the water rights. AWater Master conducted a hearing on the Applegates' objections to the claims on October 3, 1990. At the hearing, the Applegates Presented evidence that Deer Lodge had not used either of the two . water rights for any municipal purposes, the beneficial use for which the rights were claimed, since the late 1940s. The period of nonuse WRS shown to be in excess of twenty-three years as of July 1, 1973. Deer Lodge presented testimony through the Deer Lodge City Clerk ,that the two water rights had been carried as assets on the city books 'dazing the time period between the late 1940s and July 1, 1973. The Clerk also testified that the diversion and conveyance works formerly associated with the water rights were no longer carried as assets on the city books. Deer Lodge also offered into evidence three engineering reports ,Teliting, in part, to feasibility studies of the city's use of the Cottons 400d Creek water rights. Each report was prepared after July 1, 44973. The reports were admitted for the limited purpose of demonstrating Deer Lodge's lack of intent to abandon the water .rights after July 1, 1973. 14 ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 254 Moat. 11 Following the hearing, Deer Lodge requested that the record be reopened to allow it to introduce additional evidence. It sought to introduce supplemental exhibits identified as C-18, C-19 and C-20. Each exhibit related to a city-owned right-of-way easement across the Applegates' property for a water pipeline. The Water Master denied Deer Lodge's request to supplement the record and, thereafter, entered his report on November 30, 1990. The Water Master found that the relevant time frame for determining whether Deer Lodge abandoned the two water rights was the period prior to July 1, 1973; thus, the post-1973 engineering reports were found to be unpersuasive as evidence of a pre-July 1, 1973 lack of intent to abandon the water rights. He further found that Deer Lodge had abandoned both claims through nonuse over a period of time in excess of twenty-three years. Deer Lodge objected to the Water Master's report and requested a hearing before the Water Court. The Water Court heard oral argument on Deer Lodge's objections on April 12, 1991. Following the hearing, the Water Court issued its findings of fact, conclusions of law and decree. It denied Deer Lodge's request to supplement the record with exhibits C-18, C-19 and C-20 and adopted the Water Master's findings regarding Deer Lodge's abandonment of the two water rights. The Water Court ordered that water right claims 76G-W-010397-00 and 76G-W-010398-00 shall not appear on the Preliminary and Final Decrees of the Clark Fork River Basin above the Blackfoot River (Basin 76G). This appeal followed. [1] Did the Water Court err in finding that Deer Lodge abandoned the two water rights in Cottonwood Creek? [2,3] The abandonment of a water right is a question of fact. Section 89-802, RCM (applicable here, repealed in 1973); 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 431, 666 P.2d 215, 217. The standard of review of judge-made findings of fact is whether the findings are clearly erroneous. Dennis v. Tomahawk Services, Inc. (1989), 235 Mont. 378, 767 P.2d 346. This Court recently adopted a three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. [Citations omitted.] Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that "[A] finding is 'clearly erroneous' when, although there is ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 15 254 Mont. 11 evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed." [Citation omitted.] Interstate Prod. Credit Ass'n v. DeS aye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. [4] It is a fundamental principle in Montana that appropriation of water is based on its beneficial use; when the owner of the water right abandons or ceases to use the water for its beneficial use, the right ceases. 79 Ranch, 204 Mont. at 431, 666 P.2d at 217. This controlling policy of beneficial use was explained long ago in Power v. Switzer (1898), 21 Mont. 523, 529, 55 P. 32, 35, as quoted by this Court in 79 Ranch: It has been a mistaken idea in the minds of many, not familiar with the controlling principles applicable to the use of water in arid sections, that he who has diverted, or "claimed" and filed a claim of, water for any number of given inches, has thereby acquired a valid right, good as against all subsequent persons. But, as the settlement of the country has advanced, the great value of the use of water has become more and more apparent. Legislation and judicial exposition have, accordingly, proceeded with increasing caution to restrict appropriations to spheres of usefulness and beneficial purposes. As a result, the law, crystallized in statutory form, is that an appropriation of a right to the use of running water flowing in the creeks 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. [Citation omitted.] [5-7] Two elements are necessary for the abandonment of a water right: nonuse of the water associated with the water right and intent to abandon the. water right. Shammel v. Vogl (1964), 144 Mont. 354, 396 P.2d 103; Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597. We stated in 79 Ranch that evidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon that right and shifts the burden of proof to the nonuser to explain the reasons for nonuse. 79 Ranch, 204 Mont. at 432-33, 666 P.2d at 218. To rebut the presumption of abandonment, there must be established some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire reflecting a "gleamin-the-eye philosophy" regarding future use of the water. 79 Ranch, 204 Mont. at 433-34, 666 P.2d at 218-19 (citing authorities). The case at bar presents a factual situation similar to that in 79 16 .ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 254 Mont. 11 Ranch. The Applegates presented uncontradicted evidence that Deer Lodge had not used the two water rights since it ceased using Cottonwood Creek water for municipal purposes in the late 1940s. This showing of twenty-three plus years of continuous nonuse raised a rebuttable presumption that Deer Lodge had abandoned the water rights. The burden of proof then shifted to Deer Lodge to rebut the presumption of abandonment. The only relevant evidence offered by Deer Lodge was that it continued to carry the water rights as assets on its books during the period of nonuse. It presented no evidence that it had made any efforts to make use of the water rights between the late 1940s and July 1, 1973. It presented no evidence that it had maintained its diversion and conveyance facilities; in fact, it indicated that those facilities were no longer carried as assets on its books. Deer Lodge's evidence that it carried the water rights as assets on its books is not sufficient to rebut the presumption of abandonment. It does not meet the requirement in 79 Ranch of explaining the reasons or excuse for long periods of nonuse. Indeed, Deer Lodge's evidence, by itself, reflects nothing more than a "gleam-in-the-eye philosophy" regarding future use of the water which, as stated in 79 Ranch, "is not consistent with the protection and preservation of existing water rights." 79 Ranch, 204 Mont. at 434, 666 P.2d at 219. To find otherwise would be inconsistent with the "fflundamental policy that a water right does not mean possession of a quantity of water, but its beneficial use." 79 Ranch, 204 Mont. at 433, 666 P.2d \ at 218 (emphasis in original). [8] Deer Lodge suggests that it was caught by surprise and was "blindsided" by the Water Court's finding that the pre-July 1, 1973 time frame was controlling in determining the abandonment question and the court's corresponding finding that the post-1973 engineering reports were not persuasive in showing a lack of intent to abandon. It states that it assumed that its burden was to show a lack of intent to abandon the water rights by post-July 1, 1973 evidence and, thus, it "[m]ade no effort to obtain evidence that may have been available during the period from the late 1940's to July 1, 1973." We find no error on the part of the Water Court in refusing to consider Deer Lodge's post-1973 engineering reports as persuasive evidence. The Montana Water Use Act was enacted during the 1973 legislative session and became effective on July 1, 1973. The Act defined an "existing right" as "[a] right to the use of water which would be protected under the law prior to July 1, 1973." Section ADJUD. OF WATER RIGHTS OF CLARK FORK RIVER 17 254 Mont. 11 89-867(4), RCM (now 85-2-102(9), MCA). In 1979, upon passage of the general statewide Water Adjudication Act, the legislature directed the adjudication of all "existing" water rights and specifically identified those rights as those in existence prior to July 1, 1973. Section 85-2-212, MCA. Thus, the clear purpose of statewide ad-'judication is to adjudicate water rights as they existed on July 1, 1973, Given this background, the Water Court correctly determined that only the pre-July 1, 1973 time frame was relevant on the abandonment question and evidence relating to intent to abandon which reflected Deer Lodge's post-1973 actions was not persuasive. [9-10] Deer Lodge also asserts that the Water Court should have considered its post-hearing evidence regarding its continued protection of an easement for a pipeline across the Applegates' property as evidence of a lack of intent to abandon the water rights. We conclude that the Water Court in this case correctly refused to consider this evidence. Montana law has long recognized that water rights and easements or ditch rights are separate and distinct rights. McDonnell u. Huffine (1912), 44 Mont. 411, 422-23, 120 P. 792, 795; Missoula Light & Water Co. v. Hughes (1938), 106 Mont. 355, 365, 77 P.2d 1041, 1046; Mildenberger v. Galbraith (1991), 249 Mont. 161, 166, 815 P.2d 130, 134. Because water rights and easements are separate and distinct legal rights, one can be abandoned without abandoning the other. McDonnell, 44 Mont. at 423, 120 P. at 795. While in other cases such evidence may be admissible, evidence of Deer Lodge's continued protection of its easement was irrelevant to the issue of whether it abandoned its water rights. We conclude that the Water Court's finding that Deer Lodge abandoned its claims to the two water rights in Cottonwood Creek is supported by substantial evidence. Further, in accordance with our " three-part test in Interstate Prod. Credit Assn., we determine that the court did not misapprehend the effect of the evidence. Finally, after a review of the record, we are not left with a definite and firm conviction that a mistake has been committed. Accordingly, we hold that the Water Court's finding that Deer Lodge abandoned the water rights is not clearly erroneous and, thus, we will not disturb the court's ruling. Affirmed. CHIEF JUSTICE TURNAGE, JUSTICES HUNT, McDONOUGH and TRIEWEILER concur.

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