No. 85-468
IN THE SUPREME COURT OF THE STATE OF MONTA.NA
1986
ESTHER McDONALD, JOHN McDONALD, JR., and
EUGENE KANLEY, individually as representatives
of the GRANITE COUNTY WATER USERS ASSOCIATION,
et al.,
Petitioners,
THE STATE OF MONTANA, and the WATER COURTS
OF THE STATE OF MONTANA,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioners:
Josephson & Fredricks; Richard Josephson a.rgued,
Rig Timber, Montana
For Respondents:
Hon. W.W. Lessley argued, Chief Water Judge, Bozeman,
Montana
Hon. Mike Greely, Attorney General, Helena, Montana
Clay Smith, Asst. Atty. General, Helena, Montana
Ed Steinmetz, Plater Master, Bozeman, Montana
Submitted: February 21, 1986
Decided: April 8, 1986
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
We determine here that the provisions of 5 85-2-234,
FfCA, applicable to final decrees issued by the Water Courts
(and also applicable to preliminary decrees under 5 85-2-231,
MCA), requiring the final decree to state "the amount of
water, rate and volume included in the [water] right" are not
unconstitutional as to direct flow irrigation water rights
that have not heretofore been historically decreed or defined
in terms of volume.
Esther McDonald and the other parties named as
petitioners in the above caption brought this original action
in the Montana Supreme Court by filing their complaint for
declaratory judgment. Before deciding to accept jurisdiction
of the cause, we asked for responses from the Water Courts
and from the State of Montana, the named respondents. We
consolidated with this cause for purpose of responses cause
no. 85-345, entitled Montana Department of Fish, Wildlife &
Parks, petitioner vs. Water Court of the State of Montana and
the Judges of that Court, respondents, and cause no. 85-493,
United States of America, petitioner vs. Water Court of the
State of Montana and the Judges of that Court, respondents.
After receiving responses, we set. oral argument for the
respective causes as consolidated for February 21, 1986. On
that date, counsel. for the various parties appeared, and
presented a stipulation that had been entered into by the
parties for the purpose of resolving the several issues
raised.
In the stipulation of the parties presented on February
21, 1986, i-t is stated:
12. Count I of the McDonald complaint requests the
Montana Supreme Court declare unconstitutional the
requirements of Title 85, Chapter 2, Part 2, MCA,
requiring quantification of water rights by volume,
as violating the recognition and confirmation of
such water rights as they existed on the effective
date of Art. IX, Section 3 of the 1972 Constitution
of Montana.
3 . To the extent that no controverted issues of
fact are involved, the parties agree the
constitutionality of Title 85, Chapter 2, Part 2,
MCA, and specifically Section 85-2-234 (5) (b), MCA,
which requires the decreeing of volume for pre-July
I., 1973 direct flow irrigation water rights that
have not been historically decreed or defined in
terms of volume, should be expeditiously decided by
the Montana Supreme Court as the issue is pending
in Cause No. 85-468.
The constitutional issue presented is framed on the
allegation contained in count l(c), paragraph XI, of the
McDonald complaint that the
.. . wa.ter courts have been and. are continuj-ng to
adjudicate existing water rights on the basis of
vol-ume, limiting such rights to a certain volume,
expressed in acre-feet per acre per year.
The 1972 Constitution, Art. IX, S 3 provides:
Water Rights. (1) All existing rights of the use
of any waters for any useful or beneficial purpose
are hereby recognized and confirmed.
(4) The legislature shall provide for the
administration, control and regulation of water
rights and shall establish a system of centralized
records, in addition to the present system of local
records.
McDonald has attached to her complaint in this Court as
Exhibit A, random copies of typical decrees made by dist.ri-ct
courts prior to July 1, 1973. In each of the decrees, the
water rights there protected are expressed in terms of flow
rate and not in terms of volume.
The statutory provision for the measurement of water is
found in 5 85-2-103, MCA. It states:
Measurement of water. (1) After July 1, 1899, a
cubic foot o f water (7.48 gallons) per second of
time shall he the legal standard for the
measurement of water in this state.
( 2 ) Where water rights expressed in statutory or
miner's inches have been granted, 100 statutory or
miner's inches shall be considered equivalent to a
flow of 2.5 cubic feet (18.7 ga.llons) per second,
200 statutory or miner's inches shall be considered
equivalent to a flow of 5 cubic feet (37.4 gallons)
per second, and this proportion shall be observed
in determining the equivalent flow represented by
any number of statutory or miner's inches.
(3) The provisions of this section shall not
affect or change the measurement of water decreed
by a court prior to July 1, 1899, but such decreed
water shall be measured according to the law in
force at the time such decree was made and entered.
KcDonald and her copetitioners allege and argue that
their respective water rights have never been expressed in
terms of volume, but rather in terms of flow rate (miner's
inches or cubic feet per second) limited only by the acres
respectively irrigated. They contend that "any attempt to
define volume in the decrees listing pre-July 1, 1973 water
rights is speculative, places an added burden on pre-July 1,
1973 rights and violates Article IX, Section 3, of the 1972
Montana Constitution and Section 85-2-103, providing that the
flow rate is the 'legal sta.ndardrfor measurement."
McDonald and her copetitioners have standing to sue.
They are the owners of water rights in areas for which
temporary preliminary d.ecrees have been issued by the Water
Courts, to-wit the Flint Creek drainage area in Granite a.nd
Deer Lodge Counties, the Boulder River Basin area in Sweet
Grass and Park Counties, the Sweet Grass Creek drainage area
in Park, Stillwater and Sweet Grass Counties and the Rridger
Creek drainage area in Gallatin, Park, Sweet Grass and
Stillwater Counties. As to temporary preliminary decrees
which have been entered for those basins, the petitioners
have entered their objections to the determination of their
and other rights in terms of volume.
The issue raised is not limited personally to McDonald
and her copetitioners, but extends throughout the whole
process of the adjudication of irrigation water rights by the
Water Courts. The issue affects all of those rights.
Adjudication by this Court now as to the issue raised would
serve to guide the Water Court in this particularly important
matter; would provide judicial economy in avoiding protracted
litigation both in the Water Courts and in this Court; and
would serve the public policy of the state by expediting the
determination of existing water rights. It is therefore
appropriate that we accept jurisdiction of this issue by way
of declaratory relief, involved as it is with our duty to
supervise the Water Courts. We have, moreover, a justiciable
issue which does not require further determinations of
factual issues either by a master or by a district court.
Section 27-8-201, MCA (power to declare rights) ; Rule 17 (a),
P4.R.App.Civ.P.; 3-7-204, MCA; State ex rel. Judge v.
Legislative Finance Committee (1975), 168 Mont. 470, 543 P.2d
1317; City of Billings v. Smith (1971), 158 Mont. 197, A90
P.2d 221; State ex rel. Schultz-Lindsay v. Board of
Equalization (1965), 145 Mont. 380, 403 P.2d 635.
McDonald and her copetitioners have raised other issues
in their complaint relating to procedures and actions taken
in the Water Courts to which they have made objection, but we
do not direct our attention to those issues at this time.
Through Art. IX, § 3 (3), 1972 Mont. Const., the people
of this state declared that all waters within the state are
the property of the state for the use of its people and are
subject to appropriation for beneficial uses as provided by
Law. The people, through the constitution, impressed on the
legislature the duty of establishing a system of centralized
records in addition to the present system of local records
for the administration, control and regulation. of water
rights. Art. IX, § 3 ( 4 ) , 1972 Mont. Const.
In order for the state to establish a system of
centralized records, the legislature established the Water
Courts (Title 3, Ch. 7, KCA) and provided for the
adjudication of water rights (Ch. 697, Laws of Montana
(1979), now §§ 85-2-211, -243, incl., MCA) . In essence the
legislature turned to the courts for such adjudication.
No more difficult task has ever been assigned by the
legislature to the court system of this state. As Chief
Water Judge W. W. Less]-ey pointed out in oral argument
herein, only the courts could provide the mechanism by which
existing water rights could be determined, recorded and
protected with full constitutional guaranties.
There are two components to the Montana Constitutional
guaranty: there must be an existing right to the use of
water, and the use must be for a beneficial purpose. Art.
TX, § 3(1), 1972 Mor~t. Const.
We can accept as true the contention of McDonald and her
copetiti-oners that practically every irrigation water right
prior to July 1, 1973 was expressed in flow rate, expressed
in miner's inches or cubic feet per second and related
directly or indirectly to the number of acres being
irrigated. We can also accept as true their contention that
the volume of water used by irrigators up to or within the
limit of their appropriation rights would vary greatly from
year to year depending upon circumstances not within the
control of the irrigators, such as climatic conditions from
year to year, subsoil types, lengths of the ditches,
porosity, permeability, dry years, wet years and so on. It
is natural therefore that irrigators would fear that the
expression of a volume amount in acre feet as a limit of
their right would adversely affect their flow rights to the
use of water under certain conditions.
Yet Montana has always protected, by law and the
decj-sions of this Court prior to 1972, and by the Montana
Constitution since 1972, any beneficial irrigation right
within the original appropriation of water. It is quite
apparent from all the pre-1973 water cases in Montana that
the courts look to beneficial use as the essential criterion
in determining suits between water claimants.
In Tucker v. Missoula Light & Water Co. (1926), 77 Mont.
91, 250 P. 11, Tucker was entitled to 377 miner's inches out
of Rattlesnake Creek, north of Missoula, and the Missoula
Light & Water Co., which supplied water to the City of
Missoula, had total rights to 2,676 miner's inches. However,
onl-y 1,119.5 inches of the Missoula right preceded the fifth
decreed right which provided Tucker with 45 inches jointly
with Missoula's 115 inches.
In 1924, Kissoula Light took 1,344 inches of the water
out of Rattlesnake Creek through a flume and then passed it
through a pipeline which had but 1,144.8 inches of capacity.
Missoula Light returned 199.2 inches to the creek through a
spillway away from Tucker. He testified that if he had
received only 40 or 50 miner's inches, it would have been
sufficient to protect his crops for the years involved. In
passing on the case and granting damages to Tucker against
Missoula Light, this Court noted:
The so-called "ownership of water" differs from
that of personal property capable of corporeal
possession. Neither the appropriator of water nor
one to whom a right is decreed owns the corpus of
any part of the flow of the stream. - - entitled
He is
to only the beneficial - - -
- use of the amount of water
called for & - appropriation - decreewhen he
his or --
has - therefor, and providinq his distributing
- need
system has a sufficient capacity to carry - -an
such
amount of water. (Citing a case.) When his
ditches a r e incapable of carrying the amount of
water decreed to him, his right is measured by the
capacity of a system of distribution, regardless of
his needs. (Citins cases and statutes. So long
as a party has all the water his necessity requires
or that his ditches will carry, it is immaterial
that he has a right, under decree or otherwise, to
a greater flow from the creek. It is his duty to
permit the excess to remain in the creek or, having
diverted it, to return it to the creek in such
manner that it will be availa.ble to subsequent
appropriators of decreed rights. (Citing cases. )
(Emphasis added.)
77 Mont. at 101-2, 250 P.2d at 15.
Another illustrative case is Quigley v. McIntosh (1930),
88 Mont. 103, 290 P. 266. Quigley was granted by the
District Court 800 miner's inches of water out of Ophir Creek
in Powell County, but his right was junior to earlier
appropriations totaling 1,650 inches. Three of the earlier
appropriations, however, were appropriated for placer mining
purposes, totaling 650 inches. Quigley alleged that the flow
in Ophir Creek was more than sufficient to satisfy all the
rights recognized and that during the months of May and June
until about July 1-5, the flow of water in the creek actually
exceeded the needs of all the prior appropriators as
a.djudicated. He had sought to divert 1,000 inches as an
additional water right subject to the prior appropriations.
The District Court granted. Quigley 800 inches of his
claimed 1,000 inches but held that QuigLey could not take the
waters from the creek when the vol.ume of water flowing
therein was equal to or less than 1,650 miner's inches.
Quigley appealed the latter part of the judgment. The
Supreme Court agreed that the District Court had erred.
Since the prior placer appropriations of 650 inches might not
be used, that amount of water in the stream was available for
appropriation by Quigley, and it was error for the District
Court to restrict his right of appropriation to a time when
more than 1,650 inches of water were in the stream because
the policy of the state was to avoid waste of waters:
We have also said repeatedly that it is to the
interest of the public that water be conserved for
use, rather than be permitted to go to waste, to
the end that the arid lands of the state may be put
under irrigation and thus be made productive.
(Citing cases. ) ...when [a] new water right is
allowed it is governed by all of the provisions of
the decree [in a decreed stream] just as if the
appropriator had been a party to the original
decree. He has the right to use the waters of the
stream and in the order of his juniority.
... As illustrative: It appears that three of
the early rights, aggregating 650 inches, are
confined exclusively to placer mining purposes.
There may be years when no placer mining whatever
is being done by the use of the waters of Ophir
Creek. In the process of time when the placer
mines no longer yield up their auriferous
treasures, there will not be any use for these
water rights. When the same are not required for
use of placer mining, the waters must be allowed to
flow in the stream, subject to capture by other
users upon the stream in the order of their
priority.
- at 107-9, 290 P. at 268-69.
Id.
Anderson v. Cook (1901), 25 Mont. 330, 64 P. 873,
presents a different facet. It is authority that a large
number of miner's inches might be necessary to provide a head
of water sufficient to overcome seepage and. leakage along the
way to the farmlands. In this case, the parties owned a
diversion ditch in common, out of which each took laterals t-o
perform their irrigation. However, Cook placed his "boards"
so as to totally inundate his lan.ds, and in effect to waste
the water. The Court said this in holding for Anderson:
The parties did not own the water. They had a
right to the use of it in common. They di6 not
have a prior right. The defendants assume that
they were at all times entitled to take out
two-thirds of the water, provided they left
one-third thereof in quantity in the main ditch.
This is error. If there were 1,200 inches in the
ditch, and they needed and took out 800 inches at a
point 100 feet below the reservoir, there would be
left 400 inches, one-third of the volume of water,
with a journey of more than one mile to go in warm
weather, and over a slow grade, and through a ditch
from 144 inches to 228 inches wide, subject to very
great loss from seepage, evaporation and actual
Leakage. The slightest knowledge of the laws of
nature will convince any reasonable person that the
plaintiff would get a very small part of the 400
inches wherewith to make his desert lands produce
remunerative crops.
25 Mont. at 338-9, 64 P. 876.
In the Anderson case, the District Court cured the
problem by requiring that the defendants allow Anderson to
take water out of the main diversion ditch exclusively two
days of the week in order to get enough water to his place to
cultivate his crops.
In Conrow v. Huffine, et al. (1914), 48 Mont. 437, 138
P. 1094, Huffine and others, having prior rights to 90
miner's inches, took all of the waters out of Bear Creelr,
east of Bozeman, to irrigate approximately 70 acres. There
were never more than 100 inches flowing in the creek during
the irrigating season. Conrow had junior rights and sued on
the ground that allowing Huffine to take all of the water
that had been appropriated by him resulted in waste, and
deprived the junior appropriator of any irrigation water.
The District Court determined that Huffine and others had
never irrigated more t.han 70 acres and said:
While we have no 1egisl.ation on the subject, the
rule has generally been observed by the courts in
this state, in fixing the amount required for
economical use, to allow one inch per acre, unless
the evidence discloses that a greater or less
amount is required. All the witnesses who
testified on the subject agreed that fifty or sixty
inches furnished a sufficient head for effective
working purposes [for Huffine] ...
- at 445-46,
Id. 138 P. at 1 0 9 6 - 9 7 .
An important element to determine the extent of a water
right is the capacity of the ditch mad-e by the first
appropriator. Thus it was stated Conrow:
The test of the extent of an appropriation with
reference to a subsequent right to the waters of a
stream is dependent upon the capacity of the first
ditch before such subsequent appropriation is made.
When an owner or possessor of land makes an
appropriation of water in excess of the needs of
the particular portion of the land upon which he
conveys the water, and other portions of his land
also require irrigation, his water right is not
limited by the requirements of the particular
fraction. He may still, despite the fact that
another's water right has attached, construct other
ditches through his remaining land, provided that
the total amount of water conveyed by all the
ditches on his place does not exceed the original
capacity of the first ditch. As between his
appropriation and the subsequent water right, the
capacity of the ditch, by means of which he first
made his appropriation is the test of the extent of
it. (Citing a case.) Under this rule, the extent
of the right of the first appropriator is measured
by the capacity of the original ditch. After the
use has been installed, however, if the capacity of
the ditch exceeds the amount required for
reasonable use, the necessity for the use and not
the size of the ditch, is the measure of the extent
of the right (citing cases). The tendency of
recent decisions of the courts in the arid states
is to disregard entirely the capacity of the ditch
and regard the actual beneficial use, installed
within a reasonable time after the appropriation
has been made, as the test of the extent of the
right.
48 Mont. at 443-44, 1 3 8 P.2d 1 0 9 6 .
The foregoing cases and many others serve to illustrate
that what is preserved. to owners of appropriated or decreed
water rights by the provi.sion of the 1 9 7 2 Constitution is
what the law has always contemplated in this state as the
extent of a. water right: such amount of water as, by pattern
of use and means of use, the owners or their predecessors put
to beneficial use. Thus an owner may have a decreed right to
a certain number of miner's inches of water; or a statutory
appropriative right to a stated amount; or a right depending
upon mere use; or even a prescriptive right to a stated
amount; nonetheless, the Water Use Act contemplates that all
water rights, regardless of prior statements or claims as to
amount, must nevertheless, to be recognized, pass the test of
historical, unabandoned beneficial use. (Abandonment, of
course, is a separate fact issue to be determined if
necessary by the water court.) To that extent only the 1972
constitutional recognition of water rights is effective and
will be sustained.
We come then to the requirement by the legislature of
the inclusion in the decrees as to each existing water right
"the amount of water, rate and volume included in the right."
Section 85-2-234(5), MCA. It is apparent to us that the
legislature, cognizant as it was of the duties imposed upon
it by the Montana Constitution, and of the confirmation and
recognition in the Constitution of existing water rights, did
not intend by the inclusion of the "volume" requirement as to
water irrigators to place an additional burden upon their
water rights.
On the other hand, the quantification of the total water
rights in the State of Montana is an expressed and necessary
objective under the Constitutional mandate for centralized
records and is within the police power of the state. Tulare
Lrr. Dist. v. Lindsay-Strathmore Irr. Dist. (Cal. 1935), 45
P.2d 972, 988. Especially quantification is necessary so
that the total amount of water necessary for beneficial uses
may be considered in determining other inflow stream rights,
and reserved rights, if any.
Always to be borne in mind is that no matter how the
water right is expressed in the decrees of the water court,
either in flow rate or in acre feet or a combination thereof,
such expression of amount js not the final determining
factor. It is best expressed in the statutes of other
states: beneficial use shall be the basis, the measure and
the limit of all rights to the use of water. See for
example, $$ 73-1-3, Utah Codes Annot.
We are guided in this matter by the decision of the
California Supreme Court in Tulare Irr. Dist. v.
Lindsay-Strathmore Irr. Dist., supra, a case involving a
dispute between riparian owners and appropriators. The
Superior Court had before it water rights based on flow rate,
which if taken under continuous flow would far exceed the
available amount of water in the stream. The Court pointed
out that junior appropriators have a material interest in
having the ultimate quantity to be received by those who have
prior claims fixed with reasonable certainty and for that
reason determined that the awards of rights should be fixed
in cubic feet per second, with a maximum limitation in
acre-feet "measured, of course, by the maximum number of
acre-feet used by each appropriator in the past." 45 P.2d at
997.
In oral argument, counsel for McDonald contended that if
an appropriator who formerly used flood irrigation switched
to sprinkler irrigation, the appropriator would be using less
water than his original appropriation allowed him. If, by
reason of excessive utility rates or otherwise, the
appropriator decided to return to flood irrigation, and to
abandon the sprinkling, he would be deprived under an
acre-feet decree of a water right guaranteed to him by the
Constitution. In our view, such an appropriator would be in
no different position than an appropriator, who in wet years,
though entitled to 400 miner's inches of water for 60 days,
used only 200 inches for 30 days. There is no doubt that he
would. have the right to return in dry years to t.he full
extent of his appropriation provided he wa.s putting the water
to a beneficial use.
It was also contended by others on oral argument that in
dry periods such as Montana has been experiencing in recent
years, the subsoil moisture disappears, and a greater volume
of water is necessary to replace the subsoil moisture and to
provide remunerative crops for which an acre-feet award might
be short. In that case the acre-feet volume expressed in his
water right decreed by the Water Court would give way to his
right to an appropriation of such flow-rate of water as would
be necessary to provide the beneficial use to which the
appropriator was historically entitled.
The rule which will serve to guide the courts and
appropriators before and after the decrees of the Water
Courts is again expressed in Tulare, supra:
An appropriator, as against subsequent
appropriators, is entitled to the continued flow to
the head of his ditch of the amount of water that
he, in the past, whenever that quantity was
present, has diverted for beneficial purposes, plus
a reasonable conveyance loss, subject to the
limitation that the amount be not more than is
reasonably necessary, under reasonable methods of
diversion, to supply the area of land theretofore
served by his ditch. The appropriator is limited
to reasonable beneficial uses. A reading of the
many cases on the law of appropriation indicates a
gradual and consistent tightening of the rule
measuring the rights of appropriators. The early
cases measured the appropriator's right by the
capacity of his ditch, but that rule has long since
been repudiated in this state. Smith v. Hawkins,
120 Cal-. 86, 52 P. 139. As the pressure of
population has led to the attempt to bring under
cultivation more and more lands, and as the demands
for water to irrigate these lands have become more
and more pressing, the decisions have become
increasingly emphatic in limiting the appropriator
to the quantity reasonably necessary for beneficial
uses. (Citing cases.) If the appropriator uses
more than the amount so required, he gains no right
thereto. An excessive diversion of water for any
purpose cannot be regarded as a diversion for a
beneficial use. Insofar as the diversion exceeds
the amount reasonably necessary for beneficial
purposes, it is contrary to the policy of the law
and is a taking without right and confers no title,
no matter for how long continued. (Citing
cases. ) In determining wh.at is a reasonable
quantity for beneficial uses, it is the policy of
the state to require within reasonable limits the
highest and greatest duty from the waters of the
state.. ..
The case before us illustrates the wisd-om of the
legislature in providing for preliminary decrees. Section
85-2-231, MCA. By the use of a preliminary decree, the Water
Court, over a period of one or more seasons may test the
provisions of its decree to determine that it works fairly
and properly as between appropriators and between
appropriators and those with other interests. Such other
modifications as may be necessary can be made before the
entry of the final decree.
We hold therefore that the Water Courts in rendering a
preliminary decree under § 85-2-231, MCA, or a final decree
under S 85-2-234, MCA, must as to each pre-1973 irrigation
water right state the amount of water, rate and volume
included in the right; but that the amount, rate and volume
must at all times be subject to the requirement of beneficial
use. Thus if in a rare case a beneficial use under a
pre-1973 water irrigation right required a greater amount of
water than the acre feet fixed in the decree, and such
beneficial use was within the pre-1973 flow-rate
appropriation as to the pattern of use and means of use, the
amount required by beneficial use would control, though it
exceeded the acre feet fixed in the decree. In like manner,
if the beneficial use required a lesser amount than the acre
feet fixed therein, the appropriator holds no title or right
to the excess volume of water over and above the requirements
of his beneficial use.
All must recognize that we live in a state with great
fluctuation and uncertainty in the amount of water available.
It will become a hazard of living under the judgments of the
Water Courts that the parties determine their rights to the
flow as it exists. Where volumes cannot be ma-de more
definite, as they are contained in judgments, we will repair,
as always, to the concept of beneficial use in determining
rights subject, of course, to the priorities established by
law.
In so holding, we place no added burden on the owners of
pre-July 1, 1973 irrigation water rights, nor do we offend
the provisions of Art. IX, S 3 (11, of the 1972 Yontana
Constitution. Flow rate contained in Water Court decrees
must still be expressed in cubic feet per second, as they had
earlier been expressed, and in the long run the amount
actually needed for beneficial use within the appropriation
will be the basis, the measure and the limit of all water
rights in Montana as between appropriators, and as between
appropriators and others.
We Concur: /
Chief Justice
District Judge, Sitting
for Mr. Justice Frank B.
Morrison, Jr.