No. 12622 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

SUNSET IRRIGATION Plaintiff and Respondent,

THEODORE AILPORT, et a

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## , Defendants and Appellants. VERNON WOOLSEY; IDA B. TERRY, formerly IDA B. CRONIN; DAN W. CRONIN, JR. 

### ; DONALD F

# .PARK; JOHN POPE; J

# .H. MYERS 

### ; JOE EBERHARDT, the successor in interest toGEORGE M. CAREY; ROBERT LEWIS, the successor ininterest toEVA McCORMICK; and ARA LONG VAN DUSEN, Appealing Defendants.

Appeal from: District Court 

### of the Fourth Judicial District, Honorable Robert S. Keller, Judge presiding. Counsel of Record: For Appellants: Loble, Picotte, Loble, Pauly and Sternhagen,

Helena, Montana Lester H. Loble, I1 argued, Helena, Montana Murray and Holt, Missoula, Montana Robert Brown, Stevensville, Montana For Respondent: Boone, Karlberg and Haddon, Missoula, Montana William T. Boone argued, Missoula, Montana Koch and McKenna, Hamilton, Mont2na Thomas P. Koch appeared, Hamilton, Montana

Submitted: September 

### 10, 1974

Decided :

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1 1 ' ClerkMr. JusticeWesley 

### Castles delivered the Opinion of the Court. This is an appeal from a judgment of the district court of the fourthjudicial district inRavalli County, the Honorable Robert S. Keller, presiding after the death of the late Phillip Duncan who took the testimony. The court found in favor of plaintiff and granted it an appropriation of water. The court found against cross-claimants and counter-claimants and denied them relief. Plaintiff 

### is Sunset Irrigation District, an irrigation district organized under statute. Plaintiff brought the action to appropriate additionalwaters of Burnt Fork Creek by enlargement of the district's existing dam on Burnt Fork Lake, situated atthe head of Burnt Fork Creek, ina mountain basin involving about one square mile of the drainage area of the creekwhich drains 74 square miles. The enlargement of the dam would increase the storage capacity of the lake from 386 acre feet to 953 acre fee Burnt Fork Creek 

### is an adjudicated stream. ~efend'ants resisted the appropriation. Certain of the defendants filed a cross-claim and counter-claim under section 89-1015, R.C.M. 1947, to require water users on an adjudicated stream to usewater according to decree and to require thewater commissioner to distribute and measure the water inaccordance with the decree. The issues for review are two innumber, (1) whether the court was in error ingranting Sunset an appropriation of 

### 953 acre feet of water togetherwith the right to impound it; and 

### (2) whether the court erred indenying relief to the cross- -2-claimants and counter-claimants. Before discussing the issues, we shallcomment briefly on the situation posed by the death of the trialjudge who heard the evidence. A stipulationwas entered intowhich waived a new trial, approved Judge Keller's assumption of jurisdiction and a view of the area, and stipulated that the usual presumptions of correctness of Judge Keller

### 's findings based on conflicting evidencewould not apply. Thus, we examine the entire record as ifwe were trialjudges. By this

we do not mean that we willseparately and indetail find facts; but that we 

### willexamine the record to determine the ultimate facts. Judge Keller viewed the entirewater drainage. 

### We willonly view the exhibits. (For a comparison of a similar situation, seeWorden v. Alexander, etal., 108Mont. 208, 90 P.2d 160.) Further, the issues areapproached differently inappellants' brief from that of respondent's brief. Appellants assert that sunset's action toappropriatewaters of Burnt Fork Creek is by enlargement of its presently unlawful dam. Much of the thrust of appellants1argument 

### isbased on the repeated assertion that the present existingdam 

### isunlawful. So, we willreview the history of Sunset's storage. Burnt Fork was adjudicated inCowell v. Julian, Ravalli County Cause No. 556, decree dated April 19, 1905. In 1907, the record shows a dam for storagewith an appropriation of water which came down by conveyances of record (albeit perhaps not perfect and exclusive title) to Sunset. It is clear 

### -3-that Sunset has asserted and survived allrights of ownership. In 1929 the dam was enlarged to its present size, about 

### 400 feet long and 18 feet high with about 35 acres of

area inthe lake. The dam captures and storeswater from a drainage area of about one square mile. From November 

### 1to May, flood and surplus waters from springs, melting snows and rains that would otherwise go towaste are stored. The dam was constructed and operated under a permit of the U.S. Forest Service. The stored water 

### is released about July 15and conducted by means of the creek channel to two ditches which then convey thewater toSunset lands. The foregoing brief recitation establishes that the dam was not, as appellants keep repeating, an illegaldam in any sense of theword. It would unduly lengthen this opinion to analyze the testimony of each witness. However, Judge Keller ina memo attached tohis findings and conclusions has succinctly stated his rationale as follows: 

### "MEMO: There 

### is no question but what water 

### is going towaste, both during the non-irrigation time of the year, and atthe highwater period. ~efendants'concern 

### is predicated primarily on the need forkeeping anunderground reservoir filled, which 

### is done with run-off water, and with thoroughly flooding the crop lands atthe period of highwater, so that their decreed rightswillmaintain the growth of crops for the rest of the growing season. "The amount of water stored from October 1until May 1, orthe need for that water, isnot seriously contended by any of the witnesses for the defense. Apart from the fact that no one has had it foroverfortyyears, the amount involved is infinitesimal compared tothe rest of the drainage of Burnt Fork Creek, and this Court 

### is satisfied that that is trulywater going towaste. As to the use of water during normal run-off time by allof the users, the testimony made it clear that everybody used allthe water he could get, two to three times the decree rights, and there was stillwater running down the creek, i.e., allof thewater atnormal run-off time cannot be put toa beneficial use, cannot even be used. Now the normal run-off water should be coming from lower elevationsthan Burnt Fork Lake, and again, the amount that would be impounded inthe proposed dam would be less than 

### 5%of the run-off waters, i.e., the defendants 

### willnot suffer detriment. "The fact that somany of the users, including many of thewitnesses for the defense, urged the construction of a dam at the mouth of Gold Creek makes it clear that a vast number of the users, if not allof them, believed there is not only water going towaste, but that there should be an impoundment of thesewaters. "The concern of Professor Bowman that the new dam 

### will stop the springs from flowing inthe Burnt Fork Lake basin omitted somethirgin the telling. He viewed the Lake, and took the pictures of the Lake, inSeptember, i.e., when the headgates were open, and the Lake was down as faras it could go. He testified that the vast majority of these springs were just above the levelof the Lake when he viewed it inSeptember of 1968, i.e., allof those springs would be shut down by theweight of thewater with the present dam, since 

### 2 to 

### 7 feet of water would be sufficient to do this. The effect of this condition inthe past, it his testimony 

### is correct, is toprovide an additional aquifer for the benefit of the decreed users. The Lake waters were impounded ata time when they do not need thewater, and this 

### iswhen the springs are shut off, i.e., when they do not need thewater. When the dam is letout, the plaintiffs get only the amount of water that 

### is impounded inthe dam, with allexcess water going on down the creek. As thewaters are letout of the dam, these springs arereleased, which also releases thewaters impounded by the shutting off of the springs. This 

### is water that goes on down the creek, for it is not included inthe computation of water impounded by the Sunset 

### Irrigation District. If Professor 

### owm man's testimony is correct, the same conditionwillcontinue inthe future, only more springs willbe stopped, giving a greaterbenefittothe decreed users. 

### h he concern of the defendants that this water is goingout of the drainage district 

### is not a valid concern. It is water going towaste, which would otherwise be flowing into the Bitterroot River, of no more use to the decreed users than if it goes up on the Sunset Bench. "The new dam should be a benefit to allparties. Heretofore, the normal flow inMay, before the dam fills, was withheld from the creek, and at times, this flow could have been utilized by the decreed users who needed to irrigate inMay. The new dam will have the kind of controls in it that willpermit this flow tobe released, and atthe same time give a greater impoundment of run-off waters. The Court was not too impressed with the arguments concerning adverse use, but in

### a Court of Equity, it's extremely difficut to overlook laches.II What the trialcourt found, and aswe find from the record, is that: no injurywas shown to prior appropriators; there was surplus water to be appropriated in the manner proposed; the storage proposed not only would not injure other users but actually benefit them; that the proposed dam could be operated

so as not to interferewith others; and that the appellants were guilty of laches. Other matters such as adverse use and prescriptive rights were not really an issue and need not be determined. We have examined the record, exhibits, and find as the district court did. Thus, as to the issues previously set forth, the Court was correct ingranting an appropriation of water with the right to impound it, subject to conditions; and was also correct indenying relief to the cross-claimants and counter-claimants. Accordingly thejudgment 

### is affirmed.

Weconcur: 

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. -.--, - -,-,-----,-&&,L ,----- l.- ---'d-kkk---.+-- Chief Justice

sitting inplace of Justice John Conway Harrison.