Hill v. Merrimac Cattle Company

No. 82-390
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

OSCAR HILL,
Respondent and Cross--Appellant,

MERRIMAC CATTLE COMPANY,
INC. ,
Appellants and Cross-Respondents.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Judith Basin,
The Honorable B.W. Thomas, Judge presiding.

COUNSEL OF RECORD:

For Appellants/Cross-Respondents:
Jardine, Stephenson, Blewett & Weaver; John D.
Stephenson, Jr. argued, Great Falls, Montana

For Respondent/Cross-Appellant:
Loble & Pauly; C. Bruce Loble argued, Helena,
Montana
For Amicus Curiae:
Donald D. MacIntyre, Special Assistant Attorney General,
For Department of Natural Resources, Helena, Montana

- --
Submitted: Decenber 22, 1983
Decided : August 10, 1984

Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

I. GENERAL ORIENTATION AND STATEMENT OF ISSUES
Defendant, Merrimac Cattle Company (Merrimac) appeals
and plaintiff, Oscar Hill (Hill) cross-appeals from parts of
an order of the state Water Court, sitting in Judith Basin
County, deciding the water rights between the parties. On
the issues raised by Merrimac, we affirm in part and reverse
in part, and remand for further findings and hearings, if
necessary. On the issues raised by Hil-I.,we also affirm in
part and reverse in part, and remand for further findings and
to take additional evidence if necessary.
Hill contends that this Court has no jurisdiction to
hear any of the issues until the entire basin is adjudicated,
and in response to this issue, we ordered further briefing.
We also asked the parties to brief the question of whether
the decree of the Water Court can be appealed before the
District Court has decided the trespass and damage claims of
the parties based on Hill's complaint and the countercl.aim of
Merrimac. We conclude that we do have jurisdiction and that
based on the circumstances of this case, an appeal is proper
before the trespass and damage claims are decided by a jury.
See Part 111 of this opinion.
This appeal primarily concerns the water rights to
Martin Creek and Davis Creek, although other streams or
springs are also involved. For example, Hill raises the
issue of whether Cameron Coulee (a springs) is a tributary of
Kartin Creek or Paul Creek. In addition, the parties raise
general issues not specifically relating to Martin or Davis
Creek. We first set forth the issues as they relate to each
creek or stream and then set forth other more general issues.
(1) Prescriptive Use: Martin Creek and Davis Creek.
Although Merrimac contends it has first priority to arti in
Creek and Davis Creek wa-ter,Merrimac appeals from the Water
Court's decree and order in holding that Merrimac did not
prove a. prescriptive use right to either Martin Creek or
Davis Creek water. We affirm the Water Court's holding. See
Part IV of this opinion.
(2) Priorities - Martin
to Creek Water. Merrimac
contends that it established first priority to Martin Creek
water and therefore that the priorities should be reordered.
Hil.1 cross-appeals and raises two issues. Hill arques that
the Water Court should have permitted Hill to irrigate those
lands based on the priorities established and as they were
described in a 1929 Judith Basin District Court case,
entitled Spencer v. Silve. One of the parties, Joe Fergus,
was a predecessor to Hill. Hill also contends that the Water
Court erred in awarding any water rights to Merrimac because
Merrimac failed to prove that its fields were irrigated by
Martin Creek water. We affirm the Water Court on Merrimac's
appeal and on Hill's cross appeal. See Parts V ( A ) , and VI of
this opinion.
(3) Priorities - Davis Creek Water.
to Merrimac contends
that the priorities it was granted should take precedence
over the priorities granted to Hill. Merrimac also contends
that the Water Court improperly relied on the complaint and
answer filed by Joe Fergus in the 1 9 2 9 District Court case of
Spencer v. Silve, Fergus, and Duncan. The Water Court relied
on the answer and counterclaim by Fergus in establishing 1 8 8 4
priority dates for Hill. Hill cross-appeals and contends
that the evidence is insufficient to establish even those
priority rights granted to Merrimac, and therefore that
Merrimac has no priorities over Hill to the use of Davis
Creek water. Hill also contends that the Water Court
improperly admitted in evidence a letter from an attorney to
Joe Fergus in relation to that 1929 case, by which Merrimac
argued that Fergus had abandoned his attempt to prove 1884
priority dates for Davis Creek water.
We hold that the Water Court improperly relied on the
answer and counterclaim in the 1929 case as a basis to
establish priority dates for Hill. We hold further that the
letter from the attorney to the client was properly admitted
in evidence. We further hold that the evidence is sufficent
's
to establish Merrima.~ priority dates. Although the Water
Court is affirmed in part and reversed in part, the effect of
our holding is that Merrimac is entitled to priorities to the
use of Davis Creek water. See Parts V(B), and VII of this
opinion.
(4) Whether Cameron Coulee - - Tributary - Martin
is a to
Creek
.---- or to Paul Creek. Hill's cross-appeal claim contends
that Cameron Coulee is a tributary to Martin Creek or to Paul
Creek, and if correct, this would entitle Hill to the excess
water from Cameron Coulee after 14errimac first used the 18.6
miner's inches granted by the Water Court based on historical
usage. The Water Court, however, held that Cameron Coulee is
not a tributary to either Martin Creek or Paul Creek, and we
affirm. See Part VIII of this opinion.
(5) Measure o
' water - - - -
flow for each acre under
irrigation. Merrimac contends that the Water Court should
have granted Merrimac 1.25 miner's inches for each acre under
irrigation for al-1 of its water rights, rather than the 1
miner's inch granted. Hill does not dispute this 1.25 factor
as such, but argues that if it is the proper factor, then
Hill should also be granted l . 2 5 miner's inches per acre for
each of its water rights. Because we are uncertain what the
Water Court intended, and bemuse evidence exists to support
each figure, we remand to the Water Court to enter additional
findings and to take more evidence if necessary. See Part IX
of this opinion.
(6) Possibility - - -
that Hill was allotted excess water
because - failure - determine the precise acreage - -
of to Hill had
under irrigation. The Water Court granted Hill 1,890 miner's
inches of water based on a measure of 1 miner's inch per
acre. However, in doing so the Water Court failed. to
determine the number of acres that Hill has under irrigation.
Merrimac therefore contends that Hill was awarded excess
water because Hill has far less than 1,890 acres under
irrigation. We remand for further findings, and more
evidence if necessary, to determine the acreage that Hill has
under irrigation. See Part X of this opinion.
(7) Failure - - forth -- descriptions - which
to set the land on

- -is presently irrigating.
Hill Hill contends tha-t the Water
Court mistakenly restricted the use of his water to the
specific land as described in his predecessor's land pa.tents
rather than setting forth the descriptions of land on which
water is presently being applied. Merrimac agrees that the
cause must be remanded for this determination. We remand for
further findings and more evidence is necessary to determine
and describe the land that Hill is presently irrigating. See
Part XI of this opinion.
11. BACKGROUND FACTS
 The Merrimac and Hill ranch lands are adjacent, with the
Merrimac lands being upstream from the Hill lands. All of
the streams involved in the litigation involve Merrimac as
the upstream user and Hill as the downstream user. The
ranches are on the eastern side of the Highwood Mountains,
and are in a valley bisected by Martin Creek and Davis Creek,
two of the primary streams involved in this litigation. The
I-ow lands of both ranches are irrigated from Martin Creek and
Davis Creek and their tributaries. Martin Creek eventually
becomes a tributary to Davis Creek.
Both ranches trace their origin to land homesteaded in
the 1880's. Merrimac consists of land first homesteaded and
settled by John and Conrad Sack on Davis and Martin Creek in
1883. Merrimac was started by A. J. McDonald and is
currently operated b7
l Lenny J. McDonald, the fourth
generation to grow up on the ranch and take over operations.
Merrimac bought the Sack land in 1910, and additional land
was acquired in 1916 from Ed Simpson, who in 1882 was the
first homesteader on Davis Creek.
The Hill Ranch traces its beginning to the Fergus
family. Annie Fergus homesteaded on Davis Creek in 1885, and
a number of her children homesteaded on surrounding parcels.
One child, Owen Fergus, acquired most of the already
homesteaded parcels, and enlarged the ranch with other
purchases. Later, transfers by deed and inheritance resulted
in all the Fergus holdings consolidating in Anna Marie
Duncan. Anna Marie married Felix Hill, and their minor
children inherited the ranch when Anna Marie and Felix died
in 1952 and 1954 respectively. A guardianship was
established and Lenny McDonald, Merrimac president and second
generation McDonald, and Carlo Hill, an uncle of the minor
Hill children, as co-guardians. That guardianship continued
until 1 9 6 5 . One of the minor children, John, stayed on the
ranch and continued to operate it until 1975, at which time
the ranch corporation known as "ZV Ranch" was dissolved. The
Hill ranch land was then transferred to Oscar Hill, who grew
up on the ranch, and who continues to operate it.
The parties dispute the priorities of water rights in
Martin Creek and Davis Creek. There had never been a serious
dispute between the parties or their predecessors until the
spring of 1 9 8 0 . At that time, Hill entered Merrimac's land
without notice and without permission blocked Merrimac's
Martin Creek ditch and Davis Creek ditch. The Martin Creek
ditch led to Merrimac's "Martin Creek Meadow,' and the Davis
I
Creek ditch led to Merrimac's "Simpson Place" meadows. Hill
also blocked several other ditches leading from Davis Creek.
Hill followed his ditch cut-offs with two lawsuits. In
District Court, Hill obtained an ex parte temporary
restraining order that ordered Merrimac to cease irrigation
from Martin Creek, Davis Creek, Mountain Stream, and Paul
Creek. These are the main streams from which Merrimac
acquires its irrigation waters. This order effectively
deprived Merrimac of irrigation water for its hay crops.
Hill followed this restraining order by filing an action in
Water Court to determine the priorities of the rights in the
streams in question.
Merrimac followed with its own lawsuit. Before Merrimac
was served with process from the Water Court on the
priorities issue, Merrimac filed an action in District Court
against Hill alleging trespass against Hill and seeking
injunctive relief and damages for Hill's actions in blocking
the irrigation ditches. In this case, Hill filed a
counterclaim, seeking damages against Merrimac for wrongful
diversion of irrigation water.
The parties agreed to a consolidation of the District
Court cases because of common questions of law and fact. In
addition, Merrimac asked that the Water Court determine the
respective water rights first, and then that the trespass and
damage claims would be tried to a jury after final
determination of the water rights litigation.
111. JURISDICTION TO HEAR THE APPEAL
We ordered briefing on the question of whether the
Judith Basin Water Court order awarding priorities between
the two parties is a final and appealable order. The
question is whether it is final and appeal-able under the
statutory scheme set out in the Water Use Act, section
85-2-211, et seq., MCA, and specifically, section 85-2-235,
MCA. The question involves both a consideration of whether
the Water Use Act contemplates an appeal in such
circumstances, and a question of whether the order is final
because the trespass and damages claims have not yet been
decided.
Merrimac argues that this Court does have jurisdiction
and Hill argues that we do not have jurisdiction. Hill
argues first that the order deciding the rights of Merrimac
and Hill is only temporary because it is subject still to a
basin-wide adjudication of rights, and that based on sections
85-2-234, and 85-2-235, MCA, a party can appeal only from a
basin-wide "final decree.'' Hill further argues that any
opinion from this Court would necessarily be subject to
possible reversal by the Water Court when it adjudicates the
entire basin in which the streams £1-ow.
 We conclude that because this dispute involves only two
parties and it is necessary that they must know their
irrigation water allowances, it would be against the purpose
of the Water Use Act to require them to wait for the
basin-wide decree before appeal to this Court. The purpose
of the Water Use Act, and the 1979 amendments establishing
the water courts, are to quantify the many water users'
rights in Montana's water and to speed up decisions on those
water rights. This Court is not certain when this particular
basin will have a final hearing and adjudication, and the
rights of the parties cannot in the meantime be held in
abeyance. We further note that any decision of this Court on
the rights between the parties can be meshed with the Water
Court's further adjudication of the rights of other parties
who may have earlier or later priority rights than the
parties to this action.
The pendency of the trespass and damage claims does not
deprive this Court of jurisdiction to hear the appeal. The
Water Court, at the request of the parties, entered a Rule
54(b) certification, and we are convinced that the order,
under these facts, is proper. Although the cases have been
consolidated because of common issues of fact and law, the
trespass and damage claims cannot be properly resolved until
the water rights of the parties have been first determined.
The Water Court entered an order on the water rights of the
two parties, but the trespass and damage claims cannot be
determined by the Water Court. The Water Court, therefore,
ruled on all the issues that are within its jurisdiction.
We further note that Hill's argument would end up with a
decision on the trespass and damage cla-ims that could not be
appealed until basin-wide adjudication of the water rights
claims. Hill's position, regardless of which party prevails,
would have the effect of depriving the losing party of the
right to a speedy appeal on issues over which the Water Court
has no jurisdiction. That is not the purpose of the Water
Use Act.
IV. MERRIMAC FAILED TO PROVE PRESCRIPTIVE USE TO WATERS OF
MARTIN CREEK AND DAVIS CREEK
Although Merrimac also claims that its priority dates
for use of water come before those of Hill, Merrimac contends
that it acquired a prescriptive right to the use of Martin
Creek and Davis Creek waters that defeats any first
priorities awarded to Hill. Merrimac contends that it has
been using the water adversely from the 1800's through 1980,
when the dispute between the parties first erupted. However,
we affirm the Water Court's ruling that Merrimac did not
prove prescriptive use of rights.
Two prescriptive rights statutes are involved. From the
years between 1895 and 1953, a 10 year period was required to
acquire a prescriptive right. (See Section 486, Code of
Civil Procedure 1895, and later statutory codifications.) In
1973, the legislature reduced the statutory period from 10
years to 5 years. See Ch. 224, 5 4, Laws of Montana (19531,
now codified as section 70-19-404, MCA. In 1973, the Water
Use Act eliminated the right to acquire a water use right by
prescription. Merrimac contends it perfected its right
before the effective date of this statute.
Although Merrimac contends it adversely used Martin
Creek and Davis Creek water to the detriment of Hill from the
1800's until 1980, for purposes of analysis, three time
periods are involved: the late 1880's to 1954; 1954-1965;
and 1965-1973.
 The Water Court initially rejected Merrimac's contention
that it acquired adverse possession between the late 1880 's
and 1954, and between 1954 and 1965. However, the Water
Court initially also held that Merrimac established adverse
possession between the years 1965 and 1973, a-t which time the
Water Use Act went into effect prohibiting the acquiring of
water rights by adverse possession. Later, however, the
Water Court reversed itself and held that Merrimac did not
acquire adverse possession during the years 1965 to 1973.
The Water Court essentially held that through all the years
involved, the late 1880's to 1973, use of Martin Creek and
Davis Creek water by the parties was based on an
accommodation, thereby defeating Merrimac's claim to adverse
use.
In a-ddition to the Water Court's basic conclusion that
use of water by the parties was always based on an
accommodation between the parties, the court held also that a
guardianship which Lennie McDonald cf Merrimac had over the
Hill ranch between the years of 1954 and 1965, prevented the
statutory period from running as a matter of law. Lenny
McDonald, as a co-guardian of the Hill ranch, could not
acquire an interest adverse to his ward. The Water Court
properly noted that to start the prescriptive period running
anew after the expiration of the guardianship in 1965,
Merrimac was required to notify Hill that it claimed water
adverse to Hill's interest, and this was never done.
The Water Court reviewed the testimony of Lenny
McDonald, who ran the Merrimac ranch operations before Jim
McDonald took over in 1966. During the period Lenny McDonald
became a co-guardian over the Hill ranch, and during the time
of his guardianship, Lenny McDonald testified Merrimac did
not claim or take water to the detriment of the Hill
operation. Jim McDonald, who took over Merrimac's operations
in 1966, agreed with the testimony of Lenny McDonald, and he
testified that in dry years, in order to accommodate Hill,
Merrimac decreased its water use from Martin Creek and Davis
Creek so that Hill would have his share of water for
irrigation. Jim McDonald further testified that the two
operations "shared the water" and that he had no
understanding with Hill as to who held the priority rights of
the water. Although he testified that Merrimac took
approximately 113 of the flow, the quantity varied each year
depending on the flow, and sometimes even the 113 did not
always provide the water that Merrimac needed. This evidence
is fatal to Merrimac's claim that its use of the water during
those years was exclusive and uninterrupted.
Based on this testimony, the Water Court concluded that
"the history of Merrimac water use was based on an
accommodation reached between the parties without any certain
understanding of their respective right; and arrangements
which endured until 1980 (the year this dispute erupted) to
the mutual satisfaction of the parties for most of the time
. . ." The Water Court further concluded that the water use
by Merrimac "prior to 1966, if not permissive, at least is
not shown by the evidence to have been under a claim of
right, adverse to Hill, communicated in some way to Hill."
Our review of the record leads us to affirm this holding.
Merrimac focuses strongly on the years 1954 to 1973 as
being a period when it used water adversely to the interests
of Kill. Although Merrimac acknowledges the existence of the
co-guardianship by Lennie McDonald over the Hill operations
from 1954-1965, Merrimac argues that nonetheless it could
acquire a prescriptive use right during this time period.
Merrimac argues that the other co-guardian could have
protected the Hill guardianship interests by asserting the
legal rights of the guardianship, and further, that John
Kill, who became 2 1 in 1 9 6 1 could have asserted legal rights
on behalf of the Hill ranch. Failure to do so, Merrimac
argues, means that Merrimac successfully used this time
period to acquire a prescriptive right to the use of Martin
Creek and Davis Creek water. We agree with the Water Court,
however, that Merrimac could not acquire rights adverse to
the Hill guardianship during the time that Lenny McDonald
remained a guardian over the Hill operations, which was
lasted until 1 9 6 5 .
Merrimac also argues, without citing evidence, that it
nonetheless established a prescriptive use right after the
guardianship ended and before the law changed eliminating the
right to acquire water rights by prescriptive use. The Water
Court concluded, however, and Merrimac cites no contrary
evidence, that after the guardianship ended Merrimac did
nothing to Hill that could be construed as starting the
prescriptive period running again. In fact, as previously
noted, Jim McDonald testified that during this time period
the two operations "shared the water."
Finally, Merrimac argues that it is entitled to a
fractional share of Martin Creek and Davis Creek water
because from the beginning it has always taken a fractional
share of the water. Although the testimony generally stated
that Merrimac took at least 1 / 3 of the water, the fact is
that whatever share was taken did not adversely affect Hill
so as to start a prescriptive period running. Until shortly
before the events erupted leading to this lawsuit, Merrimac
had taken no action to deprive Hill of its water based on its
priority claims. The cases cited by Merrimac are not on
point because they decide issues where the claimed adverse
user, in appropriating a fractional share, actually deprived
the other party of a part of his water supply based on a
previous appropriation. Merrimac's fractional use argument,
as a basis to claim a prescriptive right, has no application
to this case.
We therefore conclude that the Water Court was correct
in holding that Merrimac did not prove its claim of
prescriptive use to the water of Martin Creek and Davis
Creek. We next discuss the question of whether the Water
Court, based primarily on documentary evidence, correctly
established the priorities for Martin Creek and Davis Creek.
V. WHETHER A 1 9 2 9 DISTRICT COURT CASE DECIDING SOME RIGHTS
OF HILL'S PREDECESSOR, SHOULD ALSO CONTROL SOME PRIORITIES
ISSUES IN THIS CASE
A major issue concerning the priorities to Martin Creek
and Davis Creek water turns on the application of a 1 9 2 9
water rights case in which Owen Fergus, Hill's predecessor,
was involved. Merrimac Cattle Company, in existence at the
time, was not a party to the lawsuit. As to Martin Creek,
the trial court granted certain priorities to Fergus, and
Hill contends those findings and the decree should control in
this case. As to Davis Creek, Fergus alleged in his answer
and counterclaim that he had May 1, 1 8 8 4 and May 1-5, 1884

priority rights to use of Davis Creek water.
In deciding the case, the Water Court refused to be
bound by the findings and decree establishing Fergus'
priorities to Martin Creek, and ruled that the 1929 decree
was not based on adequate facts. From this ruling Hill
cross-appeals. On the other hand, the Water Court relied on
Fergus' answer and counterclaim in the 1 9 2 9 case in ruling
that Hill had established two 1 8 8 4 priority dates for the use
of Davis Creek water. The Water Court found that the
counterclaim and answer were sufficiently corroborated by the
testj-mony of Ray Hill that Hill had the priority rights to
Davis Creek water. From this ruling Merrimac appeals.
We hold that the Water Court correctly rejected the
findings and decree in that 1 9 2 9 case as deciding the water
priorities to Martin Creek. We also hold, however, that the
Water Court erred in relying on the answer and counterclaim
of Fergus in deciding the priorities to Davis Creek water.
Martin Creek flows into Davis Creek and the creek
continues under the name of Davis Creek. Frank Spencer owned
land downstream from the confluence of Martin Creek and Davis
Creek, and he irrigated this land. Neil Silve owned land on
Martin Creek and irrigated land from Martin Creek. Spencer
sued Sil-ve, alleging that Silve had interfered with the use
of his downstream water rights. Silve, in turn,
cross-complained against Owen Fergus and Maggie Duncan, in
effect seeking to show that it was Fergus and Duncan who had
interfered with the Spencer water rights. At issue were
priorities to Martin Creek water, and the use of Davis Creek
water downstream from the confluence of Martin Creek and
Davis Creek.
For Martin Creek the trial court granted Fergus certain
water rights and established the priority dates for those
rights. In this czse, Hill now contends that those priority
dates, the water flow rate established, and the area where
water was applied, must be given full force and effect in the
litigation between Hill and Merrimac. Hill appeals from the
refusal of the Water Court to give full force and effect to
the 1929 decree.
For Davis Creek, the trial. court in the 1929 decree did
not establish any priorities for Fergus, and in fact Fergus
agreed at the conclusion of the trial that his rights to use
of Davis Creek water were not involved, and in effect Fergus
withdrew his claim to the 1884 priority dates alleged in his
answer and counterclaim. The trial court did, however, grant
six priority dates to Frank Spencer for use of Davis Creek
water, the first right being in 1.894, and the last right
being in June 1899. Fergus did not appeal from this fina.1
decree. In this case, Merrimac appeals from the Water
Court's ruling that granted two 1884 priority dates to Hill
based on allegations contained in the Fergus answer and
counterclaim in the 1929 case.
We discuss each of the creeks separately.
A. MARTIN CREEK--THE WATER COURT PROPERLY RULED THAT
OTHER EVIDENCE DEMONSTRATED THE 1929 ADJUDICATION OF MARTIN
CREEK TO RE IN ERROR.
In deciding the Martin Creek issue, the Water Court
properly recognized that a water rights decree is binding on
the parties to the action and their successors in interest
(State ex rel. Knight v. District Court (1941), 111 Mont.
520, 111 P.2d 292), but that it does not bind a stranger to
the litigation, although the decree may be admitted as "some
evidence of the water right" (Wills v. Morris (1935), 100
Mont. 514, 50 P.2d 862). In ruling that the 1929 decree
deciding Martin Creek priorities was in error, the Water
Court based its ruling on Desert Land entries and Homestead
entries filed by members of the Fergus family, as contained
in the National Archives. The Desert Land entries indicate
that much of the land involved in the 1929 Spencer v. Silve
decree, had not actually been placed under irrigation until
the late 1890's rather than in the 1880's as determined in
the Spencer v. Silve decree. The Water Court noted that the
Homestead entries, made no reference to ditches or irrigation
on the land involved. The Water Court further decided that
the 1880's Homestead entries, which did not refer to ditches
or irrigation on the land involved, were circumstantial
evidence that irrigation could not have been d.evel.oped to the
extent claimed by Fergus within two or three years of
settlement on the homestead.
It is clear to this Court that the National Archives
documents relating to applications for Desert Land patents
and Homestead patents by members of the Fergus family,
establish that ditches were not built nor water placed on the
land involved until the late 1890's. These documents
thoroughly impeach the findings made in the 1929 decree, and
considered with the improbabilities of land irrigation by
either James Fergus or Mary Fergus, a conclusive case is made
for the disregard of the 1929 findings and decree.
The 1886 and two 1888 priority dates for Owen Fergus
established in the 1929 decree cannot be reconciled with the
Desert Land entries and Homestead entries mad-e by members of
the Fergus family, all of which entries establish by sworn
affidavit in the application for a land patent, that water
was applied to the land much later than 1886 and 1888. In
fact, most entries establish that water was not applied until
as many as 10 years after the 1886 and 1888 priority dates
set in the 1929 case.
The Desert Land applications required, and sworn
statements were made by the individual Fergus family
applicants, that: the land had never been previously
occupied or settled; that the lands were dry and arid; and
that the land had never been previously reclaimed by
conducting water on the land.
In one way or another, at Least part of the Desert Land
claims filed by the Maggie Fergus family on separate land in
the same area, includes land for which the 1929 decree
granted certain priority rights to Owen Fergus. The 1929
decree, however, establishes priority dates earlier than the
dates of water application established by the Desert Land
entries. For example: (1) Part of the land involved in the
1929 decree included land on which Annie Fergus obtained a
Desert Land patent. The decree established the priority
water right in 1886; the Desert Land documents state that
water was first applied in the months of May, June and July
of 1900. (2) Part of the land involved j-n the 1929 decree
based on a water application by Mary Fergus in 1888, was part
of the Owen Fergus Desert Land claim where he stated water
was first applied in 1895. (3) Part of the land involved in
the 1929 decree based on a water application by Mary Fergus
in May 1888, was part of a Desert Land claim by William
Fergus where he stated that as of June 5, 1897 the land was
dry and arid and had not been previously irrigated.
(4) Part of the land involved in the 1929 decree based on a
water application by Mary Fergus in 1888, was part of
Elizabeth Fergus' Desert Land patent application, where she
stated that water was first applied to the land in 1899.
Homestead patent applications produced similar
contradictions. Part of the land covered by the 1929 decree
establishing that James Fergus placed it under irrigation in
1886, was actually part of the Annie Fergus homestead claim
settled by her in 1885. Regardless of who did the
irrigating, the Water Court found it improbable that ditches
could. be built and water applied so soon after the 1885
homestead entry.
The 1929 decree established that James Fergus had placed
some land under irrigation in 1886, but the homestead claim
documents establish that part of this same land was
homesteaded by Owen Fergus in 1885 and by Ed Simpson in 1882.
It was impossible for James Fergus to have acquired water
rights on homesteads occupied by others before the time that
he supposedly began. irrigating--in 1886.
Based on this evidence above, the Water Court was
clearly justified in disregarding the 1929 decree on the
ground that it was based on erroneous findings of fact.
Beyond the National Archives documents, however,
additional evidence suggests that it would be highly
improbable that either James Fergus or Mary Fergus had built
the ditches and applied the water in the manner specified in
the 1929 decree. The evidence establishes that neither James
Fergus nor Mary Fergus had an interest in any of the land
involved, that their ages at the time the ditches were built
and water applied would make it improbable that they had done
the work, and further, that it would be unlikely that they
could have accomplished the prodigious feats required to be
in accord with the findings supporting the 1929 decree.
The 1929 decree was based on an appropriation of 1
miner's inch per acre. The decree grants water rights to
Owen Fergus based on three priority dates: (1) That in June
1886, James Fergus had applied 320 miner's inches to the land
involved--which translates into 320 acres. (2) That on May
1, 1888, Mary Fergus had applied 300 miner's inches to
certain land. ( 3 ) That on June 1, 1888, Mary Fergus had

applied 140 miner's inches to other land involved.
In the essential findings for the three water rights,
the decree found that James Fergus, with regard to the
priority rights of 1886 (Fergus ditch no. 1) was the grantor
and predecessor in interest of Owen Fergus and Maggie Duncan;
and that for two priority rights of 1888 (Fergus ditch no. 3
and Fergus ditch no. 7) Mary Ferqus was the grantor and
predecessor in interest of Owen Fergus and Maggie Duncan.
But nowhere does the record establish these facts. The only
place where the record indicates such to be the case is in
the answer and counterclaim filed by Owen Fergus in that 1929
case, where he alleged these to be facts. The record does
not establish that either James Fergus or Mary Fergus had any
interest in the land involved, or had any interest in claimed
water rights that could be conveyed to anyone.
Furthermore, the appropriations contained in the 1929
decree would have required superhuman efforts from James
Fergus and Mary Fergus to accomplish the ditch digging and
water applications within the time period involved.
James Fergus was the brother of Owen Fergus, and
although he died as a young man, if he had been living during
1886, the date of appropriation and application of the water
for Fergus ditch no. 1, he would have been approximately 24
years old. Mary Fergus was also the sister of Obren Fergus,
and was one of the youngest of Maggie Fergus' seven children.
At the time of the alleged appropriations and applications of
the water for Fergus ditch no. 3 and Fergus ditch no. 7, as
determined by the 1929 decree, she would have been in her
late teens--probably 18 or 19. It would indeed be a
prodigious feat for James Fergus to build a ditch and apply
320 miner's inches (translated into 320 acres) in one year.
And it would also require a superhuman effort by Mary Fergus,
a young lady of 18 or 19, to dig two ditches for the 1888
water rights and apply a total of 420 miner's inches of
water--translated into application of water to 420 acres.
Accomplishment of such feats would be highly improbable, if
not impossible.
Based on these factors, it is clear that a proper
evid-entiary basis did not exist for the decree entered in
1929. The Water Court was therefore correct in disregarding
the decree.
The effect of our holding on this issue is that the
priority dates for Martin Creek do not change based on the
findings and decree entered in the 1929 case of Spencer v.
Sil~re. The priorities of the parties are examined in Parts
VI and VII of this opinion.
B. DAVIS CREEK
The Water Court took a completely different position
with regard to the Davis Creek priorities and the effect of
the 1929 case of Spencer v. Silve. The decree did not
directly decide the claims of Owen Fergus to Davis Creek
water, but the Water Court nonetheless relied on the answer
and counterclaim of Owen Fergus to establish the priorities
ahead of Merrimac. The Water Court gave the answer and
counterclaim the required evidentiary value because it found
that no contrary evidence was presented and because the claim
was sufficiently corroborated by the testimony of Ray Hill to
the effect that Merrimac generally let Hill use Davis Creek
water whenever Hill requested. We hold that the Water Court
improperly relied on the answer and cross-claim in the 1929
case and that Hay Hill's testimony cannot be interpreted as
creating an 1884 priority date for Hill.
Hill claimed two 1884 water priority dates based on the
1929 litigation. In the 1929, case Owen Fergus, Hill's
predecessor, claimed first a priority date on May 1, 1884
based on the building of a ditch and the appropriation of 40
miner's inches of water by William Conway--referred to as the
"Conway Ditch." Fergus claimed a second priority date of May
15, 1884, based on the building of a ditch and the
appropriation of 100 miner's inches of water by Joe Papillion
(an alleged squatter)--referred to as the "Papillion Ditch. "
The 1929 lawsuit did not directly resolve those claims,
however, because Fergus requested the trial court to find,
and the trial court did find, that "no rights of either of
the defendants, Owen Fergus or Maggie Duncan, to the waters
of said Davis Creek are involved in this action." The trial
court did, however, establish seven rights for Frank Spencer
in Davis Creek--starting in 1894 and the last one having a
priority date of June 1899. Owen Fergus did not appeal from
the final judgment.
We emphasize that Merrimac does not dispute the
existence of either ditch as such. Rather, Merrimac disputes
the date when each ditch was built, and further questions
whether the ditches were built by William Conway and Joe
Papillion.
During the trial of this case, the Water Court admitted
a letter written in 1929 to Owen Fergus from one of his
attorneys after the 1929 case was decided, and although the
Water Court's decision makes implicitly clear that it did not
rely on the letter, Hill cross-appeals from the admission of
the letter into evidence on the ground that it violated the
attorney-client privilege that Hill could still assert as a
successor to Owen Fergus . Merrimac sought the letter's
admission on the ground that it reflects a. clear intent at
trial to abandon any claim to water rights based on the
alleged 1884 appropriations.
The letter states in pertinent part:
"The decree dated the 26th date of February 1929.
By the decree of Court. you have been granted all
that you asked for. Mr. Slattery [the attorney's
partner] tells me that the right to water through
certain small ditches were abandoned by you at the
trial; for instance, you did not insist on any
right under the old Papillion Ditch, which had not
been used for a considerable time."
The a.nswer and countercl-aim filed by Owen Fergus j n the
.
1929 case had no evidentiary value. The rule has long been
that statements in pleadings may be used against the pleader,
but they may not be used to advance the pleader's cause.
Taque v. John Appliance Co. (19031, 28 Mont. 511 72 297;
63 A.L.R. 2d 415, ("Pleadings as Evidence.") And this rule
does not change simply because the pleadings may be old
enough to be classified as an "ancient document" within the
meaning of the evidence code. See Rule 803 (161, M.R.Evid.,
which makes admissible as an exception to the hearsay rule,
"statements in a document in existence twenty years or more,
the authenticity of which is established." Whether or not
the answer and counterclaim can be considered a hearsay
exception to admissibility because of their age, the fact
remains that the nature of the document must still be
considered when considering the weight it can be given in
proving a point in controversy. Its status as an answer and
a counterclaim did not change because of its age, and it was
still subject to the rule set forth in Taque, supra. Simply
stated, the self-serving statements of H i . l I ' s predecessor,
Owen Fergus, could not be used some 50 years later to advance
Hill's cause.
In relying on the testimony of Ray Hill as the
corroborating evidence sufficient to dignify the answer and
counterclaim as evidence, we assume that the Water Court
concluded that Ray Hill's testimony convinced the Water Court
that Hill always had priority rights over Merrimac to use of
Davis Creek water, without regard to the actual dates when
the rights were first acquired. Ray Hill was born in 1938
and he testified that as a child (in the 1940's) he
remembered that his father (Oscar Hill) always seemed to get
Davis Creek water when he wanted it. He also testified that
Lennie McDonald (of Merrimac) would sometimes be waiting for
Hill's father to finish irrigating before Merrimac would use
any water. Although the Water Court inferred from these
statements that Hill had priority over Merrimac, the overall
view that the Water Court had of the relationship between the
parties and their historical water use practices, is at odds
with this finding.
In deciding the prescriptive issue raised by Merrimac
(see Part IV, supra), the Water Court based its refusal to
find a prescriptive use on the evidence that from the
beginning the water use of Martin Creek and Davis Creek
between Merrimac and Hill was based on an accommodation
rather than on either party asserting its claims to priority.
That is, when Hill asked for the water perhaps he got it, but
the use was based on an accommodation between the parties
rather than on Hill's assertion of a claim to priority use.
We further emphasize that Ray Hill never testified directly
that he knew Hill had prior rights or that he had heard Hill
assert or Merrimac acknowledge that Hill had prior rights.
Rather, Ray Hill merely assumed that Hill had prior rights
because Merrimac would release water at Hill's request. This
testimony, to be consistent with the Water Court's overall
finding and conclusion on the accommodation relationship
between the parties, can easily be construed as evidence of
this accommodation.
Several additional. factors lead us to conclude the Water
Court should have rejected Hill's claim to the two 1884
priority dates.
The earliest documentation for the existence of either
the "Conway Ditch" or the "Papillion Ditch" is an engineer's
map prepared for the Spencer v. Silve water rights lawsuit.
Assuming that the map was made in 1926, just after the
lawsuit was filed, we can assume that both ditches were in
existence for some time before this date, but no basis exists
to establish any particular year, let alone all the way back
to 1884.
The Narch 17, 1900, Homestead patent application of Owen
Fergus and the other documents required to he filed in
conjunction therewith, based on his entry in 1885, fail to
refer to the Papillion Ditch or to irrigation being conducted
through the ditch, even though the ditch was on part of the
land constituting the homestead. It is true that a homestead
patent does not depend on either the building of ditches or
actual application of water, but the preemption proof form,
filed on May 5, 1900, in support of the Homestead patent
application, provides questions as to the impro~rementsplaced
on the land since the original entry (see Part VI of this
opinion.) Had. the ditch existed and had water been applied,
it seems most probable that Owen Fergus would have provided
this information in his preemption proof document.
 The District Court's grant of Davis Creek priority
rights to Frank Spencer in the 1 9 2 9 case is not consistent
with the Water Court's grant to Hill of 1884 water
priorities. In the 1929 case Owen Fergus effectively
withdrew any contention that he was entitled to priorities to
use Davis Creek water based on 1 8 8 4 appropriation dates. In
the 1929 case, the court granted six priority dates to
Spencer, the first beginning in 1 8 9 4 and the last beginning
June 1 8 9 9 . The effect of the Owen Fergus assertion that his
rights to use of Davis Creek water were not involved, is a
concession that any rights he had to the use of Davis Creek
water would come after the last priority date of Frank
Spencer in June 1 8 9 9 .
This interpretation is further buttressed by the
attorney to client letter that Hill raises as a cross-appeal
issue. The letter written to Fergus (quoted, previously)
clear]-y discloses the intent of Fergus in effectively
withdrawing his claims to the two 1 8 8 4 priority dates. Hill
contends that the letter was not admissible because it
involved a privileged communication between attorney and
client and because the letter contained inadmissible hearsay.
The letter corroborates Merrimac's contention that Owen
Fergus abandoned his claim to an 1 8 8 4 priority da.te, and its
admission did not violate the attorney-client privilege. The
letter referred only to completed litigation and to Owen
Fergus' choice to give up his claim to an 1 8 8 4 priority date.
Nothing in the record indicates that Fergus gave confidential
infcrmation to his attorney that was disclosed in the letter,
nor did the attorney give any legal advice in the letter.
The letter was simply a recap of what had taken place during
the trial- of the 1929 Spencer v. Silve case and the results
of that trial as they affected Owen Fergus.
The letter did not contain inadmissible hearsay. The
letter summarized the results of the 1929 litigation as it
affected Owen Fergus. The attorney was acting as Fergus'
agent concerning a matter within the scope of his agency and
this evidence was not excludable by the hearsay rule. See
Rule 801(d) ( f ) ( 2 ) , M.R.Civ.P. The letter was strong evidence
of the fact that Fergus had given up on his attempt to
establish an 1884 priority date for use of Davis Creek water,
and that Fergus had given up this claim with full knowledge
of the consequences of his action. His failure to appeal the
final judgment meant that he conceded. He at least had no
claim to Davis Creek water that arose before the last right
of Frank Spencer with a priority date of June 1899.
For all of these reasons, we conclude that the Water
Court improperly relied on the answer filed by Fergus in that
1929 water rights case, and that the testimony before the
Water Court did not corroborate the allegations in the answer
that would give Hill an 1884 priority date. The effect of
our holding is that Hill is not entitled to the May 1, 1884
priority date for the "Conwa.y Ditch" and is not entitled to
the May 15, 1884 priority date for the "Papillion Ditch." We
discuss the relative priorities for Davis Creek water in Part
VII of this opinion.
VI. WATER PRIORITIES--MARTIN CREEK
Both parties appeal from the order and decree setting
forth the priorities to Martin Creek water. The decree
granted Hill first, third, fourth, and equal fifth
priorities. The decree granted Merrimac second and equal
fifth priorities. We affirm the decree setting forth the
Martin Creek priorities.
Merrimac raises one issue on the priorities granted, and
Hill raises two issues. The Water Court granted Merrimac an
equal fifth priority with a priority date of May 1, 1900, and
Merrimac contends that instead it should be a first priority
with a "summer of 1886" priority date (based on a homestead
preemption claimed for that year). Hill argues that not only
did Merrimac not prove an 1886 priority, but in his
cross-appeal claims that Merrimac is entitled to no priority
at all for this claim because Merrimac failed to prove that
the land was irrigated by Martin Creek water. Hill argues
that the water for irrigation could just as likely have come
from Cameron Creek (a/k/a Pacific Creek) . Hill further
claims in his cross-appeal that he should have been awarded
the same priorities for and places of use as were awarded to
James Fergus in the 1929 District Court decree referred to in
Part V of this opinion. On this issue, however, we have
already concluded that the Water Court correctly refused to
rely on that decree (see Part V(A) of this opinion), and we
therefore hold that Hill cannot rely on the 1929 decree to
establish his water priorities and areas of use for Martin
Creek water.
The evidence is undisputed that in 1886, Conrad Sack,
Merrimac's predecessor, entered land now known as Martin
Creek Meadows, and created a homestead. The evidence is also
undisputed that sometime between 1886 and the summer of 1900,
he appropriated water to irrigate the land and built a ditch
to carry the water. The question, however, is when did
Conrad Sack appropriate the water? The Water Court granted a
first priority to Hill based on a May 1, 1895 appropriation,
and Merrimac was required to prove that Conrad Sack
appropriated the water before May 1, 1895 in order to come
iihead of Hill's priority. The evidence is insufficient to
support Merrimac's contention that Conrad Sack appropriated
the water in the "summer of 1886" or anytime before May 1,
1895.
Merrimac's claim to priority focuses on the contents of
documents filed by Conrad Sack in 1900 to support his claim
for a homestead dating back to the summer of 1886. Conrad
Sack filed an affidavit in support of his 1886 homestead
preemption, and stated that he first made entry on August 15,
1886 and that he established a residence five days later, on
August 20, 1886. Two of the questions on the form, together
with the answers given, form the basis for Merrimac's claim
that Conrad Sack appropriated water and actually irrigated in
1886:
"Q. What use have you made of the ].and? A. Used
it for hay and farming purposes.
"Q. How much of the land, if any have you broken
and cultivated since settlement, and what kind and
quantity of crops have ycu raised? A. 10 acres
broken, raised. crops each year; 30 acres iyriqated
-- hay land. " (Emphasis adzd. )
and made
Merrimac relies on the emphasized language above, and
argues that plain meaning requires a conclusion that the
land was irrigated each year, beginning in 1886. The Water
Court concluded, however, that no earlier date than May 1,
1900 could be justified. The documents were signed on August
25, 1900, and because there is no indication when irrigation
started, the Water Court concluded that the first application
of water "was at the beginning of the growing season in May
of 1900, since no earlier date could be justified." While we
may not agree with the reasoning of the Water Court, and it
may be fair to assume that first application of water did
take place before 1900, we are left with the same dilem,a of
the Water Court in determining when that application took
place, for the record is devoid of evidence indicating when
the irrigation started. It was Merrimac's burden to prove
when the irrigation started, and Merrimac failed in that
proof.
Merrimac argues that it is most reasonable to assume
irrigation started in 1886 because that is when Conrad Sack
made his homestead entry. He argues that circumstantial
evidence as to how Conrad Sack applied water in another land
entry situation involving what is now Martin Creek Meadows,
supports an inference that he would have done the same thing
with regard to the 1886 land entry. We do not reach the same
conclusion.
According to his 1900 application for a homestead,
Conrad Sack entered the land an August 15, 1886, at a time
when the growing season was over. It is unlikely that he
would have planted crops in August, but assuming he had done
so, it is even more unlikely that he could have built the
ditches and appropriated the water through the ditches before
the cold winter set in.
The other land entry made by Conrad Sack, in 1896, was
based not on the Homestead Act, but on the Desert Land Act,
which had different legal requirements before application
could be made for a land patent. In this situation, Sack
started irrigating immediately upon taking possession of the
land. The Desert Land Act, to enable one to obtain a land
patent, required an appropriation of water and irrigation of
land as a condition to making a claim to the land. This
contrasts with a Homestead Preemption patent claim, in which
issuance of a patent is not conditioned on the appropriation
of water or the irrigation of land. Rather, it is
conditioned on building a house and living on the land.
Jt may be reasonable to assume that Conrad Sack
appropriated the water and irrigated the land before 1900,
but we have no way of determining whether it took place
before 1895 or after 1895. Merrimac could only establish
first priority if he could prove that the application of
water took place before May 1, 1895, the date on which Hill's
predecessor first applied Martin Creek water. That proof was
not produced.
Although we held that Merrimac did not establish an 1886
priority date for first application of water, we also reject
Hill's cross appeal claiming that Merrimac also failed to
establish a 1900 priori-tlr date because of failure to prove
the water came from Martin Creek. Hill bases this claim on
the 1900 homestead application filed by Conrad Sack, which
dic?. not mention where he obtained the water to irrigate the

land. Hill argues that the land is located in the area of
Cameron Coulee (a/k/a Pacific Creek) and that it is just as
likely that the water came from this source. The
uncontradicted evidence is, however, that for as long as
living witnesses could remember, the land involved has been
irrigated from the same ditch in this location, and that
Martin Creek water flows through this ditch. Hill and his
predecessors were on notice for a11 these years that Martin
Creek was the water source, and never was there a complaint
that Merrimac and its predecessors were illegally using

M a r t i n Creek w a t e r t o i r r i g a t e from t h e d i t c h .

We a f f i r m t h e Water Court's order and decree setting

f o r t h t h e p r i o r i t i e s f o r M a r t i n Creek.

VII. WATER PRIORITIES--DAVIS CREEK

Both p a r t i e s r a i s e i s s u e s w i t h r e g a r d t o t h e p r i o r i t i e s

g r a n t e d f o r Davis Creek w a t e r . The Water C o u r t g r a n t e d f i r s t

and second priority to Hill. Both the first and second

p r i o r i t i e s w e r e b a s e d on t h e answer f i l e d by Owen F e r g u s i n

t h e 1929 D i s t r i c t C o u r t c a s e of Spencer v . S i l v e , F e r g u s and

Duncan ( d i s c u s s e d i n d e t a i l i n P a r t V ( B ) , of t h i s o p i n i o n ) .

The f i r s t p r i o r i t y had. a May 1, 1884 p r i o r i t y d a t e , r e f e r r e d

t o a s t h e "Conway D i t c h . " The second p r i o r i t y had a p r i o r i t y

d a t e of May 1 5 , 1884, r e f e r r e d t o a s t h e " P a p i l l i o n D i t c h . "

The third, fourth, equal fourth, and f i f t h p r i o r i t i e s

were g r a n t e d t o Merrimac. The t h i r d had a p r i o r i t y d a t e of

May 1, 1897, t h e f o u r t h had a p r i o r i t y d a t e o f May 1, 1898,

t h e e q u a l f o u r t h a l s o had a p r i o r i t y d a t e o f May 1, 1898, and

t h e f i f t h had a p r i o r i t y d a t e of 1916.

Merrimac first contends that H i l l did not prove the

first and second priorities because the Water Court

i m p r o p e r l y r e l i e d on t h e answer f i l e d i n t h e 1929 D i s t r i c t

C o u r t c a s e e n t i t l e d Spencer v . S i l v e , F e r g u s and Duncan. In

P a r t V of t h i s o p i n i o n , we have d e t a i l e d t h e background of

t h i s 1929 c a s e and a l s o h e l d t h a t t h e Water C o u r t i m p r o p e r l y

r e l i e d on t h e answer f i l e d i n t h a t 1929 c a s e and t h a t t h e

testimony before the Water Court did not corroborate the

d a t e s on which t h e w a t e r w a s f i r s t a p p l i e d . The e f f e c t of

our holding i s t h a t H i l l d i d not prove t h e 1884 p r i o r i t y

d a t e s and Merrimac's p r i o r i t i e s t a k e p r e c e d e n c e o v e r t h o s e of

Hill.
 Merrimac also argues that one of its fourth priorities,
as granted by the Water Court--the May 1, 1898 priority date
for 54.8 miner's inches of water to irrigate lands in the
N1/2 of Section 33--should be given an 1882 priority date,
the effect of which would make this the first priority.
Merrimac contends that it proved water was first applied by
Ed Simpson, Merrimac's predecessor, in 1882. This claim is
based on the 1900 application for a homestead patent by
Simpson, in which Simpson made certain statements by which
Merrimac would have us infer were sufficient proof that
irrigation began in 1882.
In his application for a homestead, filed in 1900, Ed
Simpson signed an affidavit stating he entered the claim on
August 1, 1882. In answering the question of what
improvements he had made on the land since settlement,
Simpson answered: "House; Stable; Cattle Shed; 2 Miles 4
Wire Fence; 1 Mile Ditch, 15 Acres broken; value $800."
In answering the question of how much land he had
broken and cultivated since settlement, and what kind and
quantity of crops he raised., Simpson answered: "15 acres and
raised a crop each year, cut 50 ton of hay each year."
(Emphasis added. 1
Merrimac argues that the plain meaning of this statement
is that Simpson raised a crop on his plot and also cut 50 ton
of hay "each year since 1882." Merrimac therefore argues
that "the most reasonable inference is that this production
was from land irrigated by his ditch system." Merrimac
further argues that a copy of the first map of the area, made
in 1899 but based on a survey in 1898, shows irrigation
ditches in place and cultivated ground on Simpson's place at
that time. From this, Merrimac would have this Court
conclude tha.t the most reasonable inference is that Simpson
built the ditches and applied the water in 1882.
The Water Court, however, based its decisi-onon the only
evidence before the Court as to when it could most reasonably
be determined that the land was being irrigated. The Water
Court therefore based its decision on the 1899 map (based on
an 1898 survey) which showed the ditches in place.
Accordingly, a. May 1, 1898 priority date was established.
Although the evidence may support an inference that the
ditches were on the land before 1898, we are faced again with
a situation where it is impossible to d-etermine when the
ditches were built and water first applied. For exa.mple,
Merrimac's argument that the ditches were built and water
first applied in 1882, ignores the fact that entry was not
made on the land until August 1, 1882. It would be extremely
unlikely that Simpson, who made entry under a Homestead
Preemption entry, would first ha.ve built the ditches and
applied water to the land. The application for his homestead.
patent states that Simpson's first act was to build a house,
although he later built a stable, cow shed, strung two miles
of fence, and dug one mile of ditch. Under the Homestead
Preemption entry, Simpson was not required to dig ditches or
apply wa-ter within a certain time in order to obtain a land
patent. There being no evidence in the record as to when the
ditches were built or water first applied, we conclude that
the Water Court was correct in holding that 1898 was the
first year that it could be definitely established tha-t
ditches were in existence and that water was most probably
applied.
In his cross-appeal, Hill attacks two of the Davis Creek
water priorities granted to Merrimac. Hill contends that the
1898 priority granted to Merrimac for irrigation of the
"Simpson Place'' must be eliminated because Rerrimac failed to
prove the source of water for the irrigation, the place of
use, and the acreage irrigated. Hill also contends that th.e
1.916 priority granted to Merrimac to irrigate from the Upper
Davis Runoff is similarly defective for failure to identify
the place of use or the source of supply.
Ample proof exists to prove the 1898 priority. The
Water Court awarded. 54.8 miner's inches to irrigate 54.8
acres from diversions 6, 7, and 8. Merrimac presently
irrigates 54.8 acres on the Simpson Place from diversions 6,
7, and 8, and the trial testimony is undisputed that Merrimac
has always irrigated this same land from the same ditches for
as long as the witnesses at trial could remember. The water
has always come from Davis Creek, or more correct, from
Simpson Springs, a tributary to Davis Creek. The historical
evidence of Simpson's irrigation activities, presents
circumstantial evidence that the same lands were irrigated at
least as early as 1898, the year in which the survey was made
indicating the existence of the ditches.
We note, furthermore, that Hill is in no position to
complain of this 1898 priority grantecj to Merrimac, because
the evidence clearly demonstrates that Hill cannot be hurt by
Merrimac's use of this water. The source of the water is
Simpson Springs, which ultimately drains into Davis Creek.
However, this spring drains into Davis Creek below any of the
Hill ditches. Hill therefore has no interest in the waters
of Simpson Springs, and cannot object to Merrimac's use of
this water.
Hill also contends that the 1916 priority granted to
Merrimac for a use right--a. right established by
longstanding, unchallenged use of the excess water from Upper
Davis Creek Meadows to irrigate the land involved--must be
eliminated because Merrimac failed to establish the place and
source of use. Both Lennie 16cDonald and Jim McDonald, owners
of Mewrimac, testified to use of the excess water from Upper
Davis Creek to irrigate the land involved. Both Lennie
McDonald and Jim McDonald, testified to historic use, and
present day irrigation maps clearly show irrigation of this
land from Upper Davis Creek. Hill has failed to set forth
any contradictory evidence, and the Water Court relied on all
the evidence before it when it awarded this priority. The
evidence clearly supports the 1916 priority granted to
Merrimac.
The effect of our holdings on the Davis Creek issues is
that Merrimac's third priority moves to first priority,
Merrimac's fourth and equal fourth priority move to second
and equal second priority, and Merrimac's fifth priority
moves to third priority.
VIII. CAMERON COULEE IS NOT A TRIBIJTARY TO MARTIN CREEK OR
TO PAUL CREEK
In his cross-appeal, Hill contends that he is entitled
to the excess water flow from Cameron Coulee after Merrimac
has satisfied his 1 8 . 6 miner's inches awarded by the Water
Court. Although Hill concedes Merrimac's claim to the 1 8 . 6
miner's inches, Hill contends that Cameron Coulee is a
tributary to Paul Creek or to Martin Creek, and therefore
that he is entitled to satisfy his downstream irrigation
needs from this excess water source once Merrimac has
obtained his 1 8 . 6 miner's inches.
For his proof, Hill relies on a 1 8 9 9 government map and
the desert land claims of Conrad Sack, a predecessor to
Merrimac. The map depicts Cameron Coulee (ajk/a. Pacific
Creek) to be a tributary to Martin Creek; also, Conrad
Sacks's Desert Land claim, based on a May 1, 1896
appropriation, states that Cameron Coulee is a tributary to
Martin Creek. The Water Court, however, was convinced that
the more persuasive evidence proved that the water in Cameron
Coulee disappears into the ground before it reaches any creek
and therefore that it was not a tributary to any creek.
Substantial evidence supports the Water Court's finding, and
based on this evidentiary picture, Cameron Coulee is not
legally a tributary. See Anderson v. Spear-Morgan Livestock
Co. (1938), 107 Mont. 18, 79 P.2d 667.
We note, furthermore, that Hill did not contend at trial
that Cameron Coulee was a tributary to Martin Creek; rather,
Hill contended only that Cameron Coulee was a tributary to
Paul Creek, and the Water Court confined its ruling to this
issue. Although Hill cannot for the first time on appeal
change the theory of his case, we nonetheless conclude that
the evidence is sufficient to sustain a finding that Cameron
Coulee is not a tributary to any creek. We therefore affirm
the Water Court's ruling.
IX. MEASURE OF WATER FLOW PER ACRE TO WHICH PARTIES ARE
ENTITLED
Merrimac contends that it is entitled to 1.25 miner's
inches per acre for each of its water rights rather than the
1 miner's inch per acre as set forth in the Water Court's
amended decree. Hill does not dispute this 1.25 miner's
inches per acre as the proper quantity, but argues that if
Merrimac gets this amount Hill is entitled to the same
amount. We remand for a further hearing on this issue.
 In a general finding, applicable to both parties, the
Water Court found that: "A flow rate of 1 . 2 5 miner's inches
per acre is a sufficier,t and necessary amount of flow to
irrigate the lands of the parties hereto."
Based on this finding, the decree, in setting forth
Merrimac's rights, and also those of Hill, used 1 . 2 5 miner's
inches per acre as the factor to be applied to the acreage
irrigated.
After the decree and judgment, however, Kill moved to
amend the findings and conclusions, although Hill did not
move to amend the 1 . 2 5 miner's inches per acre finding. The
Water Court amended the findinqs and conclusions on other
matters, but did not amend the 1.25 miner's inches per acre
finding. The decree affecting Merrimac, however, effectively
granted Merrimac only one miner's inch per acre for all of
its water rights. Eecause the 1 . 2 5 miner's inches per acre
finding was not changed, Merrimac argues that the change
affecting Merrimac must be a clerical or bookkeeping error
and asks that this Court determine 1 . 2 5 miner's inches to be
the proper measure.
It appears that the evidence would support either a
finding of 1 miner's inch per acre or 1.25 miner's inches per
acre as the measure to which each party is entitled, but we
have no explanation for the change in the decree as it
affected Merrimac. We therefore remand for the Water Court
to determine whether 1 miner's inch per acre is the proper
measure for each party or whether it should be 1 . 2 5 miner's
inches per acre.
X. WHETHER HILL MAY HAVE BEEN GRANTED EXCESSIVE WATER
BECAUSE OF FAILURE OF WATER COURT TO DETERMINE HILL'S TOTAL
ACREAGE UNDER IRRIGATION
 In award.i.ng water rights to Hill the Water Court failed
to determine how many acres Hill. has under irrigation for
each of the water rights. Rather, the Water Court simply
granted to Hill a certain number of miner's inches for each
of the rights granted. The parties differ wid-ely on their
estimate of the number of acres that Hill had under
irrigation. Merrimac contends that Hill had a total of
426.9 acres under irrigation and Hill contends that he had a
total of 1,890 acres under irrigation. If Merrimac is
correct clearly Hill was awarded excess water for each of his
water rights. On the other hand, if Hill is correct, then
the water awarded for each water right may not be excessive.
Merrimac argues, and we agree, that this issue cannot be
resolved unless there is a fact determination on each water
right as to how many acres are being irrigated.
The problem arises in part from the original findings
and conclusions entered by the Water Court. In finding no.
10 the Water Court set forth the acreage that Merrimac had
under irrigation for each water right and the number of
miner's inches that Merrimac was entitled to for each water
right. However, nowhere in the original findings or in later
findings did the Water Court determine the number of acres
Hill had under irrigation for each claimed water right.
Although the Water Court did decide the number of miner's
inches that Hill was entitled to for each claimed water
right, this finding is meaningless without another finding on
the number of acres under irrigation.
Although Hill devotes a large part of his brief to
justifying the number of miner's inches granted for each
water right, Hill ignores the fact that, regardless of his
interpretation of the evidence, the findings are deficient.
We will not affirm the Water Court where the findings and
supporting memoranda leave us in the dark as to whether the
Water Court made determinations of Hill's acreage under
irrigation, and, if so, how the Water Court arrived at those
determinations.
We therefore remand this issue to the District Court to
enter findings on Hill's acreage under irrigation for each
water right, and then to determine the total miner's inches
per acre to which Hill is entitled, based on the appropriate
measure of water flow.
X?. WHETHER HILL'S RIGHT TO IRRIGATE WAS IMPROPERLY
RESTRICTED TO THE AREAS DESIGNATED IN THE HISTORICAL
APPROPIATIONS
In his cross-appeal, Hill contends that the Water Court
improperly confined his water rights to those areas described
in the original appropriations, and that instead the Water
Court should have based the water rights on the lands which
Hill is presently irrigating. Merrimac agrees essentially
that the case must be remanded for the Water Court to make
the necessary findings ts to the lands presently being
irrigated by Hill.
Hill contends that in the early 1900rs, after the
ownership merged in one owner, the new owner marshaled and
accumulated the water rights and diverted the water to
various lands whenever and wherever needed without regard to
the original points of diversion or original places of use as
established in the historical documents. Hill contends that
he is entitled to irrigate based on the changed applications
and properly points out that the Water Court, in awarding
priorities to Merrimac, based them on the land which Merrimac
is currently irrigating. Merrimac essentially agrees with
Hill's position and states that the case must be remanded for
the Water Court to make these essential findings, because the
Water Court "did not take sufficient care to define correctly
the areas where Hill applies irrigation water . . ."
The problem was caused in part by the failure of the
Water Court to change its findings to reflect the new legal
relationship between the parties after the Water Court
reversed itself and declared that Merrimac had not proved a
prescriptive right to the use of water from Martin Creek and
Davis Creek. Upon reversing its holding, the Water Court
should have expanded its findings to adequately describe the
land that Hill currently irriga.tes.
Because the original ruling was in favor of Merrimac on
the prescriptive use issue, it was not necessary for the
Water Court to detail the lands which Hill had under
irrigation. Merrimac was the upstream user, and having a
prescriptive right to use water from both Martin Creek and
Davis Creeks, Merrimac was entitled to first satisfy all its
water needs before Hill could satisfy any of its water needs.
The result of this prescriptive ruling is, of course, that
Hill could use the remaining water however he saw fit without
adversely affecting Merrimac's use of the water. However,
when the Water Court reversed its prescriptive rights ruling
by declaring that Merrimac had not proved its claim, the
effect of this decision was to trigger certain priority
rights in Hill over Merrimac and there was a corresponding
need to determine the land that Hill was currently
irrigating. The Water Court failed to do this.
We remand this cause for the Water Court to make the
necessary findings, and to take additional evidence if
necessary, as to the lands that Hill is currently irrigating.
XII. CONCLUSION

We have disposed of the many issues in each of the
numbered sections, and in each of these sections dealing with
the issues we have indicated whether the Water Court's decree
has been affirmed or reversed, and whether additional
findings must he entered or even more evidence taken before
each issue can be properly resolved.
The order and decree of the Water Court is affirmed in
part and reversed in part, and we remand for further
proceedings consistent with this opinion.

We Concur:

7 4 a JYustfceb j@
Chief
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