Bassett J. Hoiness; Susan K. Hoiness

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FILED 02/28/2023 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 43B-0793-R-2022 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 watercourt@mt.gov Lambert, Kathryn 3.00 MONTANA WATER COURT, YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN BASIN 43B PRELIMINARY DECREE ****************************** CLAIMANTS: Bassett J. Hoiness; Susan K. Hoiness CASE 43B-0793-R-2022 43B 30115995 NOTICE OF FILING OF MASTER'S REPORT This Master’s Report was filed with the Montana Water Court on the above stamped date. Please review this report carefully. You may file a written objection to this Master’s Report within 10 days of the stamped date if you disagree or find errors with the Master’s findings of fact, conclusion of law, or recommendations. Rule 23, W.R.Adj.R. If the Master’s Report was mailed to you, the Montana Rules of Civil Procedure allow an additional 3 days to be added to the 10-day objection period. Rule 6(d), M.R.Civ.P. If you file an objection, you must mail a copy of the objection to all parties on the service list found at the end of the Master’s Report. The original objection and a certificate of mailing to all parties on the service list must be filed with the Water Court. If you do not file a timely objection, the Water Court will conclude that you agree with the content of this Master’s Report. MASTER’S REPORT Claim 43B 30115995 appeared in the Preliminary Decree with the following issue remark: THE PRIORITY DATE MAY BE QUESTIONABLE. ACCORDING TO INFORMATION IN THE CLAIM FILE, IT APPEARS WATER FROM THE SOURCE WAS FIRST USED IN 1908. 1 This remark was not addressed through the objection process. resolve the issues raised by each issue remark. The Water Court is required to Section 85-2-248, MCA. Under Section 85-2-248(3), MCA, information in the claim file can be reviewed to determine if it provides a sufficient basis to resolve the issue raised by a remark. In this instance, a review of the Statement of Claim file shows there is not a sufficient basis for adding the issue remark. The issue remark should be removed without further proceedings. APPLICABLE LAW "All issue remarks to claims that are not resolved through the filing of an objection as provided in 85-2-233 must be resolved as provided in this section." Section 85-2-248(2), MCA. “If as a result of the examination or the prior verification conducted by the department an issue remark is attached to a claim, the resulting information in the issue remark and the issue remark must be weighted against the claimed water right.” Section 85-2-247(2), MCA. A properly filed Statement of Claim for Existing Water Right is prima facie proof of its content pursuant to section 85-2-227, MCA. This prima facie proof may be contradicted and overcome by other evidence that proves, by a preponderance of the evidence, that the elements of the claim do not accurately reflect the beneficial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every assertion that a claim is incorrect including for claimants objecting to their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. This stockwater claim appeared in the Preliminary Decree with priority date December 31, 1886. The Statement of Claim does not specify a priority date but it does state that the type of right is a use right and includes the following statement: “Ranch house was built in 1886.” (Emphasis added.) use is attached. A copy of the patent for a portion of the claimed place of It is dated October 22, 1908. This 1908 Patent for a portion of the claimed place of use is not sufficient to raise a question about an 1886 priority date for this stockwater right based on “Ranch house was built in 1886”. −2− The priority date should not be changed. The issue remark concerning the priority date should be removed as addressed and resolved. 2. The following remark also appeared on the abstract for this claim: THIS EXEMPT CLAIM WAS FILED ON 08/02/2017. THE BASIN 43B DECREE ISSUED 1/16/1985. THIS CLAIM NUMBER WAS NOT INCLUDED IN This remark provides notice that the claim was not included in the Temporary Preliminary Decree. This remark does not raise an unresolved issue which needs to be addressed. are no proceedings required for this remark. There The remark should be removed as having served its notice purpose. CONCLUSION OF LAW The information in the claim file is sufficient to address the issue remark without evidentiary hearing. Sections 85-2-248(3) and (11), MCA. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusion of Law, this Master recommends that the Court make the changes specified in the Findings of Fact to correct the Preliminary Decree for this Basin. A Post Decree Abstract of Water Right Claim is served with this Report to confirm the recommended changes have been made in the state's centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW Service via USPS Mail: Bassett J. Hoiness Susan K. Hoiness 544 Frontage Rd E Livingston, MT 59047-9102 \\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\43B PD\43B Cases\793R\793R mr 2-8-23 jbc.docx −3− Electronically Signed By: Hon. Judge Kathryn Lambert Tue, Feb 28 2023 01:15:51 PM February 23, 2023 43B 30115995 Page 1 of 1 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM YELLOWSTONE RIVER, ABOVE & INCLUDING BRIDGER CREEK BASIN 43B 43B 30115995 Water Right Number: Version: STATEMENT OF CLAIM 2 -- POST DECREE ACTIVE Status: BASSETT J HOINESS Owners: 544 FRONTAGE RD E LIVINGSTON, MT 59047 9102 SUSAN K HOINESS 544 FRONTAGE RD E LIVINGSTON, MT 59047 9102 Priority Date: DECEMBER 31, 1886 Type of Historical Right: USE Purpose (use): STOCK Flow Rate: A SPECIFIC FLOW RATE HAS NOT BEEN DECREED BECAUSE THIS USE CONSISTS OF STOCK DRINKING DIRECTLY FROM THE SOURCE, OR FROM A DITCH SYSTEM. THE FLOW RATE IS LIMITED TO THE MINIMUM AMOUNT HISTORICALLY NECESSARY TO SUSTAIN THIS PURPOSE. Volume: THIS RIGHT INCLUDES THE AMOUNT OF WATER CONSUMPTIVELY USED FOR STOCK WATERING PURPOSES AT THE RATE OF 30 GALLONS PER DAY PER ANIMAL UNIT. ANIMAL UNITS SHALL BE BASED ON REASONABLE CARRYING CAPACITY AND HISTORICAL USE OF THE AREA SERVICED BY THIS WATER SOURCE. Source Name: PETERSON CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENE 20 2S 12E PARK 2S 12E PARK Period of Diversion: JANUARY 1 TO DECEMBER 31 Diversion Means: LIVESTOCK DIRECT FROM SOURCE 2 Period of Diversion: E2SE 20 JANUARY 1 TO DECEMBER 31 LIVESTOCK DIRECT FROM SOURCE Diversion Means: JANUARY 1 TO DECEMBER 31 Period of Use: Place of Use: ID 1 2 Acres Govt Lot Qtr Sec SENE Sec 20 Twp 2S Rge 12E County PARK E2SE 20 2S 12E PARK

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