Tom Carey Cattle Co.; Dunn Canyon Cattle Co., Tom Carey Cattle Co.; Dunn Canyon Cattle Co.

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FILED 03/18/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0174-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 3.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANTS: Tom Carey Cattle Co.; Dunn Canyon Cattle Co. OBJECTORS: Tom Carey Cattle Co.; Dunn Canyon Cattle Co. CASE 41E-0174-R-2024 41E 94251-00 NOTICE OF FILING OF MASTER'S REPORT This Master’s Report was led with the Montana Water Court on the above stamped date. Please review this report carefully. You may le a writen objec on to this Master’s Report within 10 days of the stamped date if you disagree or nd errors with the Master’s ndings of fact, conclusion of law, or recommenda ons. Rule 23, W.R.Adj.R. If the Master’s Report was mailed to you, the Montana Rules of Civil Procedure allow an addi onal 3 days to be added to the 10-day objec on period. Rule 6(d), M.R.Civ.P. If you le an objec on, you must mail a copy of the objec on to all par es on the service list found at the end of the Master’s Report. The original objec on and a cer cate of mailing to all par es on the service list must be led with the Water Court. If you do not le a mely objec on, the Water Court will conclude that you agree with the content of this Master’s Report. MASTER’S REPORT Tom Carey Catle Co. and Dunn Canyon Catle Co. objected to Tom Carey Catle Co. and Dunn Canyon Catle Co. claim 41E 94251-00. Tom Carey Catle Co. also led a late objec on to this claim during the Temporary Preliminary Decree proceedings. This claim appeared in the Preliminary Decree with the following no ce remarks: 1 A LATE OBJECTION HAS BEEN FILED TO THE PRIORITY DATE OF THIS WATER RIGHT CLAIM. IT WILL BE RESOLVED DURING THE ADJUDICATION OF OBJECTIONS TO THE PRELIMINARY DECREE. DITCH NAME WAS MODIFIED AS A RESULT OF DNRC REVIEW UNDER MONTANA WATER COURT REEXAMINATION ORDERS. IF NO OBJECTIONS ARE FILED TO THIS CLAIM, THESE ELEMENTS WILL REMAIN AS THEY APPEAR ON THIS ABSTRACT AND THE REMARK WILL BE REMOVED FROM THE CLAIM. On March 8, 2024 the par es led a Mo on To Modify Preliminary Decree Of Water Right 41E 94251-00 To Resolve Objec ons And DNRC Issue Remarks [“Mo on”]. The Mo on is viewable in the Court’s FullCourt Enterprise case management system. APPLICABLE LAW Judicial no ce is taken of prior proceedings for other claims based on the same no ce of appropria on: Temporary Preliminary Decree Cases 41E-27 and 41E-37. Rule 202(b)(6), M.R.Evid. A priority date represents the rela ve seniority of a par cular right to others on the claimed source or hydrologic system. If the exact date of appropria on is unknown, a date which preserves that rela ve priority is the best that can be done. The date of an appropria on appearing in a water right decree is material only in its rela on to the ques on of priority. (St. Onge v. Blakely, 76 Mont. 1, 245 P. 532.) There is, therefore, no valid objec on to the xing of an arbitrary date of appropria on, and, if an incorrect date is given, the error is harmless unless the objec ng claimant can show that his right antedates the date xed for another instead of being subsequent thereto, as appears from the decree. (Geary v. Harper, 92 Mont. 242, 12 P. 2d 276; McDonald v. Lannen, 19 Mont. 78, 47 P. 648.) Vidal v. Kensler, 100 Mont. 592, 594 (1935). A properly led Statement of Claim for Exis ng Water Right is prima facie proof of its content pursuant to sec on 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 re ect the bene cial use of the water right as it existed prior to July 1, 1973. This is the burden of proof for every asser on that a claim is incorrect including for claimants objec ng to their own claims. Rule 19, W.R.Adj.R. FINDINGS OF FACT 1. This claim is based on the John Stults and Con (?) Stults No ce of Water Right for an 1877 appropria on from the Boulder River. The No ce states: “said water was appropriated in 2 the year 1877 – in the months of July and August”. The Statement of Claim states the priority date is “July/Aug 1877”. During veri ca on prior to issuance of the Temporary Preliminary Decree, the priority date was changed to speci c date July 31, 1877. The Preliminary Decree states that the priority date is July 31, 1877. 2. Two other claims based on the same No ce of Water Right appeared in the Preliminary Decree with priority date July 1, 1877. - Vincent J. Carey, Michael J. Carey, Franklin C. Carey, and Patrick E. Carey claim 41E 93903-00: the Statement of Claim states the priority date is July 1, 1877 and appeared in the Temporary Preliminary Decree with July 1, 1877 as the priority date. Priority date was objected to. The objec ons were setled. The Master’s Report states there is no change to the priority date. See Case 41E-27 Master’s Report led 12-17-1993, Order Adop ng Master’s Report entered 9-19-1994. - John Carey Ranch Co. claim 41E 93994-00: the Statement of Claim states the priority date is July 1, 1877 and appeared in the Temporary Preliminary Decree with July 1, 1877 as the priority date. Priority date was objected to. The objec ons were setled. The Master’s Report states there is no change to the priority date. See Case 41E-37 Master’s Report led 6-23-1995, Order Adop ng Master’s Report entered 8-16-1995. 3. The priority date should be the same for all of the claims based on the same no ce of appropria on. The priority date for claim 41E 94251-00 should be July 1, 1877. 4. The late objec on and ditch name no ce remarks should be removed as having served their no ce purposes. CONCLUSION OF LAW The setlement led by the par es is su cient to contradict and overcome the prima facie claim. RECOMMENDATIONS Based upon the above Findings of Fact and Conclusion of Law, this Master recommends that the Court grant the Mo on and make the changes speci ed 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 con rm the recommended changes have been made in the state's centralized record system. ELECTRONICALLY SIGNED AND DATED BELOW 3 Electronically Signed By: Hon. Judge Kathryn Lambert Mon, Mar 18 2024 09:39:56 AM Service Via Electronic Mail: Jeremy A. Michael Cusick, Farve, Ma ck & Re ing, P.C. PO Box 1288 Bozeman, MT 59771-1288 (406) 587-5511 o ce@cmrlawmt.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\174R\174R mr 3-8-24 jbc.docx 4 March 15, 2024 41E 94251-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 94251-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE CAREY, TOM CATTLE CO 2120 MT HWY 69 BOULDER, MT 59632-9730 Owners: DUNN CANYON CATTLE CO CHRIS CAREY 2300 MT HWY 69 BOULDER, MT 59632-9732 Priority Date: JULY 1, 1877 Type of Historical Right: FILED Purpose (Use): IRRIGATION FLOOD Irrigation Type: 1.71 CFS Flow Rate: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. *Volume: 4 - MODERATELY LOW Climatic Area: Maximum Acres: 45.00 Source Name: BOULDER RIVER SURFACE WATER Source Type: *Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SENENE 24 4N 3W JEFFERSON Qtr Sec NESW Sec 30 Twp 4N Rge 2W County JEFFERSON SE 30 4N 2W JEFFERSON Period of Diversion: APRIL 15 TO OCTOBER 15 Diversion Means: HEADGATE Ditch Name: CAREY-TWOHY DITCH APRIL 15 TO OCTOBER 15 Period of Use: Place of Use: ID 1 Acres 25.00 2 20.00 Total: Govt Lot 45.00 Remarks: 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. EACH RIGHT IS LIMITED TO THE FLOW RATE AND PLACE OF USE OF THAT INDIVIDUAL RIGHT. THE SUM TOTAL VOLUME OF THESE WATER RIGHTS SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. March 15, 2024 41E 94251-00 Page 2 of 2 Post Decree Abstract 93901-00 94249-00 94251-00 94258-00 94259-00 94270-00 94252-00 94254-00 94256-00

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