Paul T. Smith Ranches Inc.; Paul B. Smith, Paul B. Smith

Annotate this Case

Download PDF

FILED 03/26/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0199-R-2024 Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 (406) 586-4364 1-800-624-3270 watercourt@mt.gov Lambert, Kathryn 5.00 IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION BOULDER RIVER—TRIBUTARY OF THE JEFFERSON RIVER (BASIN 41E) PRELIMINARY DECREE ************************* CLAIMANT: Paul T. Smith Ranches Inc.; Paul B. Smith OBJECTOR: Paul B. Smith CASE 41E-0199-R-2024 41E 110741-00 41E 110743-00 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 Paul B. Smith objected to each of these claims. Each of these claims appeared in the Preliminary Decree with the following notice remark: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT WERE FILED BY DIFFERENT PARTIES WHO CLAIM OVERLAPPING PLACES OF USE. 41E 94271-00, 41E 110739-00, 41E 110740-00, 41E 110741-00, 41E 110742-00, 41E 110743-00. 1 On March 7, 2024 co-claimants Paul T. Smith Ranches Inc. and Paul B. Smith filed a Motion For Summary Judgment. Rule 56, M.R.Civ.P. requires filing a motion seeking relief against an adverse party. There is no adverse party in this Case. For both claims, the relief requested in the Motion For Summary Judgment is removal of the above notice remark. The Motion For Summary Judgment is deemed a conditional withdrawal of objections. The Motion For Summary Judgment is viewable in the Court’s FullCourt Enterprise case management system. APPLICABLE LAW Judicial notice is taken of the Temporary Preliminary Decree proceedings for these two claims in Case 41E-87. Rule 202, M.R.Evid.R. FINDINGS OF FACT 1. The Temporary Preliminary Decree included the following remark on the abstract for each of these claims: THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT CLAIM OVERLAPPING PLACES OF USE. THE WATER COURT DECREES THIS RIGHT AND MAKES ALL CLAIMS A MATTER OF RECORD. W110739-00, W110740-00, W110741-00, W110742, W110743-00, W094271-00, W180957-00. The remark was called in on motion of the Water Court to be addressed at that time. Both claims were in Case 41E-87 but were addressed in separate Master’s Reports (both filed January 3, 1991, and Orders Adopting Master’s Report entered January 23, 1991). The clear import of each Master’s Report is that the remark was determined to be incorrect and that all issues were addressed. Regrettably, when the abstracts were later marked for revision to reflect the changes recommended in the Master’s Reports, the remark was not removed from either abstract. The contemporary text version of the remark appeared on the abstract of each claim in the Preliminary Decree. 2. The notice remark concerning overlapping place of use should be removed from both abstracts as erroneously included on the abstracts. 3. The Preliminary Decree includes the following additional notice remark: 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. 2 The remarks do not raise unresolved issues which need to be addressed. There are no proceedings required for these remarks. The remarks should be removed as having served their notice purposes. CONCLUSION OF LAW The notice remarks should be removed as having served their notice purposes. 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 for each 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: William Driscoll Ryan McLane FRANZ & DRISCOLL, PLLP PO Box 1155 Helena, MT 59624-1155 (406) 442-0005 WPD@franzdriscoll.com Ryan@franzdriscoll.com Office@franzdriscoll.com \\JUDHLNSRV-DATA\Share\JUDGALH2OSRV (Datavol)\Share\WC-BASIN FOLDERS\41E PD\41E CASES\199R\199R mr 3-18-24 jbc.docx 3 Electronically Signed By: Hon. Judge Kathryn Lambert Tue, Mar 26 2024 03:19:14 PM March 22, 2024 41E 110741-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 110741-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: PAUL T PAUL T SMITH RANCHES 502 LOWER VALLEY RD BOULDER, MT 59632 Owners: PAUL B SMITH 502 LOWER VALLEY RD BOULDER, MT 59632-9728 Priority Date: MAY 31, 1888 Type of Historical Right: DECREED Purpose (Use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 4.00 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: 1,538.00 *Maximum Acres: ELKHORN CREEK Source Name: SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESENW 10 5N 3W JEFFERSON Qtr Sec Sec 27 Twp 5N Rge 3W County JEFFERSON Period of Diversion: MARCH 1 TO DECEMBER 1 Diversion Means: HEADGATE Ditch Name: DULANEY-SMITH DITCH MARCH 1 TO DECEMBER 1 Period of Use: *Place of Use: ID 1 Acres 606.00 Govt Lot 2 133.00 NE 28 5N 3W JEFFERSON 3 125.00 SE 28 5N 3W JEFFERSON 4 40.00 NW 28 5N 3W JEFFERSON 5 113.00 NE 34 5N 3W JEFFERSON 6 16.00 SESE 21 5N 3W JEFFERSON 7 75.00 NE 33 5N 3W JEFFERSON 8 100.00 NW 34 5N 3W JEFFERSON March 22, 2024 41E 110741-00 9 Page 2 of 2 Post Decree Abstract 330.00 Total: 14 5N 3W JEFFERSON 1538.00 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. 110739-00 110741-00 110742-00 110743-00 March 22, 2024 41E 110743-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 110743-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE ACTIVE Status: Owners: PAUL T PAUL T SMITH RANCHES 502 LOWER VALLEY RD BOULDER, MT 59632 Priority Date: MARCH 1, 1865 Type of Historical Right: DECREED Purpose (Use): IRRIGATION SPRINKLER/FLOOD Irrigation Type: 5.00 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: 1,216.00 Source Name: ELKHORN CREEK SURFACE WATER Source Type: Point of Diversion and Means of Diversion: ID Govt Lot 1 Qtr Sec Sec Twp Rge County SESENW 10 5N 3W JEFFERSON Qtr Sec Sec 27 Twp 5N Rge 3W County JEFFERSON NE 28 5N 3W JEFFERSON Period of Diversion: MARCH 1 TO DECEMBER 1 Diversion Means: HEADGATE Ditch Name: DULANEY-SMITH DITCH MARCH 1 TO DECEMBER 1 Period of Use: Place of Use: ID 1 Acres 590.00 2 140.00 3 165.00 SE 28 5N 3W JEFFERSON 4 40.00 NW 28 5N 3W JEFFERSON 5 90.00 NE 34 5N 3W JEFFERSON 6 16.00 SESE 21 5N 3W JEFFERSON 7 75.00 NE 33 5N 3W JEFFERSON 100.00 NW 34 5N 3W JEFFERSON 8 Total: Remarks: 1216.00 Govt Lot March 22, 2024 41E 110743-00 Page 2 of 2 Post Decree Abstract 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. 110739-00 110741-00 110742-00 110743-00 THE WATER RIGHTS LISTED FOLLOWING THIS STATEMENT ARE MULTIPLE USES OF THE SAME RIGHT. THE USE OF THIS RIGHT FOR SEVERAL PURPOSES DOES NOT INCREASE THE EXTENT OF THE WATER RIGHT. RATHER IT DECREES THE RIGHT TO ALTERNATE AND EXCHANGE THE USE (PURPOSE) OF THE WATER IN ACCORD WITH HISTORICAL PRACTICES. 110743-00 110753-00

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.