Franklin C. Carey; Michael J. Carey; Patrick E. Carey; Vincent J. Carey, Harold Shervin; Claudette Shervin

Annotate this Case

Download PDF

FILED 03/18/2024 Sara Calkins CLERK Montana Water Court STATE OF MONTANA By: D'Ann __________________ CIGLER 41E-0230-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 ************************* CLAIMANTS: Franklin C. Carey; Michael J. Carey; Patrick E. Carey; Vincent J. Carey CASE 41E-0230-R-2024 41E 93904-00 OBJECTORS: Harold Shervin; Claudette Shervin 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 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 The Temporary Preliminary Decree for Basin 41E was issued on June 20, 1985. The objec on ling deadline was December 17, 1985. On December 12, 1989 and February 2, 1994 Harold Shervin and Claudete Shervin led objec ons to this claim. These are late led 1 objec ons which were docketed and held to address a er issuance of the Preliminary Decree. The following no ce remarks were added to the abstract of claim: 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. A LATE OBJECTION HAS BEEN FILED TO THE VOLUME, FLOW RATE, MAXIMUM ACRES, PLACE OF USE, AND POINT OF DIVERSION OF THIS WATER RIGHT CLAIM. IT WILL BE RESOLVED DURING THE ADJUDICATION OF OBJECTIONS TO THE PRELIMINARY DECREE. The Preliminary Decree was issued on October 19, 2022. No other objec on, counterobjec on, or no ce of intent to appear was led on this claim. The Order Consolida ng Case And Se ng Scheduling Conference was issued on January 24, 2024 to begin addressing the 1989 and 1994 Harold Shervin and Claudete Shervin late objec ons. This Order was sent to the Harold Shervin and Claudete Shervin address currently appearing in the state's centralized record system. The scheduling conference was held before Senior Water Master Kathryn L. W. Lambert on February 14, 2024. Atorney Jeremy A. Michael appeared for Franklin C. Carey, Michael J. Carey, Patrick E. Carey, and Vincent J. Carey, with Patrick E. Carey atending. Harold Shervin and Claudete Shervin did not appear. The February 14, 2024 Court Minutes, Order Entering Defaults, Order Se ng Show Cause Filing Deadline, and Order Upda ng Service List [“Court Minutes and Orders”] states: As Harold Shervin and Claudete Shervin did not appear as directed in the January 24, 2024 Order Consolida ng Case And Se ng Scheduling Conference, pursuant to Rule 55(a), M.R.Civ.P. and Rule 22, W.R.Adj.R., it is ORDERED that the defaults of Harold Shervin and Claudete Shervin are ENTERED. Mr. Michael made a mo on to dismiss the Shervins’ late objec ons led in 1989 and 1994 for their failures to appear. Therefore, it is ORDERED that the deadline is March 14, 2024 for Harold Shervin and Claudete Shervin to show cause in wri ng why their late objec ons led in 1989 and 1994 should not be dismissed for their failures to appear at the February 14, 2024 scheduling conference. On February 20, 2024 the Order Consolida ng Case And Se ng Scheduling Conference was returned as undeliverable. On February 26, 2024 the Court Minutes and Orders was returned as undeliverable. Judicial Assistant Julie Cris ani was unable to nd a new address for Harold Shervin and Claudete Shervin. Consequently, nothing was led by Harold Shervin and 2 Claudete Shervin. These 2024 documents are viewable in the Court’s FullCourt Enterprise case management system. FINDINGS OF FACT 1. Objectors Harold Shervin and Claudete Shervin cannot be located. Possible successor(s) have not appeared and requested subs tu on to prosecute the objec ons. 2. This claim appeared in the Preliminary Decree with a third no ce 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. 3. The late objec on no ce remarks and the ditch name no ce remark should be removed as having served their no ce purposes. RECOMMENDATIONS Based upon the above Findings of Fact, this Master recommends that the Court grant the mo on to dismiss the 1989 and 1994 Harold Shervin and Claudete Shervin objec ons as no one has appeared for the purpose of prosecu ng the objec ons, and recommends removal of the no ce remarks as stated 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 Service via USPS Mail: Service Via Electronic Mail: Harold Shervin Claudete Shervin (Return mail received) 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\230R\230R mr 3-14-24 jbc.docx 3 Electronically Signed By: Hon. Judge Kathryn Lambert Mon, Mar 18 2024 02:03:35 PM March 15, 2024 41E 93904-00 Page 1 of 2 Post Decree Abstract POST DECREE ABSTRACT OF WATER RIGHT CLAIM BOULDER RIVER, TRIBUTARY TO JEFFERSON RIVER BASIN 41E 41E 93904-00 Water Right Number: Version: STATEMENT OF CLAIM 3 -- POST DECREE Status: ACTIVE FRANKLIN C CAREY 2050 MT HWY 69 BOULDER, MT 59632-9729 Owners: MICHAEL J CAREY 2050 MT HWY 69 BOULDER, MT 59632-9729 PATRICK E CAREY 2050 MT HWY 69 BOULDER, MT 59632-9729 VINCENT J CAREY 2050 MT HWY 69 BOULDER, MT 59632-9729 APRIL 30, 1956 *Priority Date: Type of Historical Right: FILED Purpose (Use): IRRIGATION FLOOD Irrigation Type: *Flow Rate: 9.75 CFS *Volume: THE TOTAL VOLUME OF THIS WATER RIGHT SHALL NOT EXCEED THE AMOUNT PUT TO HISTORICAL AND BENEFICIAL USE. 4 - MODERATELY LOW Climatic Area: Maximum Acres: 104.00 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 SENWSE 33 5N 3W JEFFERSON Qtr Sec NWSW Sec 5 Twp 3N Rge 2W County JEFFERSON Period of Diversion: APRIL 15 TO SEPTEMBER 15 Diversion Means: HEADGATE Ditch Name: CAREY DITCH APRIL 15 TO SEPTEMBER 15 Period of Use: Place of Use: ID 1 Acres 20.00 Govt Lot 2 21.00 NESW 5 3N 2W JEFFERSON 3 17.00 SESW 5 3N 2W JEFFERSON March 15, 2024 41E 93904-00 4 5 Total: Page 2 of 2 Post Decree Abstract 39.00 NW 8 3N 2W JEFFERSON 7.00 E2SWSW 5 3N 2W JEFFERSON 104.00

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.