No. 12622 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

SUNSET IRRIGATION 

Plaintiff and Respondent, 

THEODORE AILPORT, et a 1. , 

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 

to GEORGE M. CAREY; ROBERT LEWIS, the 

successor in interest to EVA 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 : :* - k - - :Y7$ 

fin: 5 . ;-., Filed: ,U 

;, ' i 1 1 ' 

Clerk 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment of the district court 

of the fourth judicial district in Ravalli 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 additional waters of Burnt Fork Creek by enlargement of the district's existing dam on Burnt Fork Lake, situated 

at the head of Burnt Fork Creek, in a mountain basin involving 

about one square mile of the drainage area of the creek which 

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 use water according to decree and to require the water 

commissioner to distribute and measure the water in accordance 

with the decree. 

The issues for review are two in number, (1) whether 

the court was in error in granting Sunset an appropriation of 

953 acre feet of water together with the right to impound it; 

and (2) whether the court erred in denying relief to the cross- 

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claimants and counter-claimants. 

Before discussing the issues, we shall comment briefly on the situation posed by the death of the trial judge who 

heard the evidence. A stipulation was entered into which 

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 evidence would not apply. Thus, we examine the entire record as if we were trial judges. By this 

we do not mean that we will separately and in detail find 

facts; but that we will examine the record to determine the 

ultimate facts. Judge Keller viewed the entire water drainage. 

We will only view the exhibits. (For a comparison of a similar 

situation, see Worden v. Alexander, et al., 108 Mont. 208, 90 

P.2d 160.) 

Further, the issues are approached differently in appellants' brief from that of respondent's brief. Appellants assert that sunset's action to appropriate waters of Burnt Fork 

Creek is by enlargement of its presently unlawful dam. Much 

of the thrust of appellants1 argument is based on the repeated 

assertion that the present existing dam is unlawful. So, we 

will review the history of Sunset's storage. 

Burnt Fork was adjudicated in Cowell v. Julian, Ravalli 

County Cause No. 556, decree dated April 19, 1905. In 1907, 

the record shows a dam for storage with an appropriation of 

water which came down by conveyances of record (albeit perhaps not perfect and exclusive title) to Sunset. It is clear 

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that Sunset has asserted and survived all rights 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 in the lake. The dam captures and stores water from a 

drainage area of about one square mile. From November 1 to 

May, flood and surplus waters from springs, melting snows 

and rains that would otherwise go to waste are stored. The 

dam was constructed and operated under a permit of the U.S. 

Forest Service. 

The stored water is released about July 15 and conducted by means of the creek channel to two ditches which 

then convey the water to Sunset lands. 

The foregoing brief recitation establishes that the 

dam was not, as appellants keep repeating, an illegal dam in 

any sense of the word. 

It would unduly lengthen this opinion to analyze the 

testimony of each witness. However, Judge Keller in a memo 

attached to his findings and conclusions has succinctly stated 

his rationale as follows : 

"MEMO: There is no question but what water is going 

to waste, both during the non-irrigation time of the 

year, and at the highwater period. ~efendants' concern is predicated primarily on the need for keeping 

an underground reservoir filled, which is done with 

run-off water, and with thoroughly flooding the crop 

lands at the period of highwater, so that their 

decreed rights will maintain the growth of crops for 

the rest of the growing season. 

"The amount of water stored from October 1 until 

May 1, or the need for that water, is not seriously 

contended by any of the witnesses for the defense. 

Apart from the fact that no one has had it for over 
forty years, the amount involved is infinitesimal 

compared to the rest of the drainage of Burnt Fork 

Creek, and this Court is satisfied that that is 

truly water going to waste. As to the use of water 

during normal run-off time by all of the users, the 

testimony made it clear that everybody used all the 

water he could get, two to three times the decree 

rights, and there was still water running down the 

creek, i.e., all of the water at normal run-off time 

cannot be put to a beneficial use, cannot even be 

used. Now the normal run-off water should be coming 

from lower elevations than Burnt Fork Lake, and again, 

the amount that would be impounded in the proposed 

dam would be less than 5% of the run-off waters, i.e., 

the defendants will not suffer detriment. 

"The fact that so many of the users, including many 

of the witnesses 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 all of 

them, believed there is not only water going to waste, 

but that there should be an impoundment of these waters. 

"The concern of Professor Bowman that the new dam will 

stop the springs from flowing in the Burnt Fork Lake 

basin omitted somethirgin the telling. He viewed the 

Lake, and took the pictures of the Lake, in September, 

i.e., when the headgates were open, and the Lake was 

down as far as it could go. He testified that the 

vast majority of these springs were just above the 

level of the Lake when he viewed it in September of 

1968, i.e., all of those springs would be shut down 

by the weight of the water with the present dam, since 

2 to 7 feet of water would be sufficient to do this. 

The effect of this condition in the past, it his testimony is correct, is to provide an additional aquifer 

for the benefit of the decreed users. The Lake waters 

were impounded at a time when they do not need the water, 

and this is when the springs are shut off, i.e., when 

they do not need the water. When the dam is let out, 

the plaintiffs get only the amount of water that is impounded in the dam, with all excess water going on down 

the creek. As the waters are let out of the dam, these 

springs are released, which also releases the waters impounded by the shutting off of the springs. This is 

water that goes on down the creek, for it is not included 

in the computation of water impounded by the Sunset Irrigation District. If Professor owm man's testimony is 

correct, the same condition will continue in the future, 

only more springs will be stopped, giving a greater benefit to the decreed users. 

 h he concern of the defendants that this water is going 
out of the drainage district is not a valid concern. 

It is water going to waste, 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 all parties. 

Heretofore, the normal flow in May, 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 in May. The new dam will 

have the kind of controls in it that will permit this 

flow to be released, and at the 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. I I 

What the trial court found, and as we find from the 

record, is that: no injury was 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 interfere with 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 in granting an appropriation of water with 

the right to impound it, subject to conditions; and was also correct in denying relief to the cross-claimants and counter-claimants. 

Accordingly the judgment is affirmed. 

We concur: - - ------ *> . - &-~-&-Qikd!~ tice - $,- . -.--, - -,-,-----,-&&,L ,----- l.- ---'d-kkk---.+-- 

Chief Justice 

sitting in place of Justice John Conway 

Harrison.