NO. 83-326 

IN THESUPREME COURT OF THE STATE OF MONTANA 

1984 

LARS LEWIS OLSEN, MARY ANN OLSEN, 

ROBERT JOSEPH OLSEN, and JOYCE 

OLSEN , 

Plaintiffs and Appellants, 

EVERED L. McQUEARY, W1ONA McQUEARY, 

ANDREW BECK and DONALD W. BECK, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF =CORD: 

For Appellants: 

Johnson, Skakles & Kebe; Greg J. Skakles, Anaconda, 

Montana 

For Respondents : 

Loble & Pauly; C. Bruce Loble, Helena, Montana 

Submitted on Briefs: June 14, 1984 

~~~id~d: August 30, 1984 

r 

b4 ,.- !2 j ;984 Filed: 

! I 

&, a)!- 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The plaintiffs appeal from the judgment of the Third 

Judicial District Court, Powell County, which decreed the 

respective water rights of plaintiffs and defendants in 

Upper Fred Burr Creek and Lower Fred Burr Creek channel near 

Deer Lodge, Montana. We affirm the decision of the District 

Court. 

The plaintiffs own property in Powell County in the 

Lower Fred Burr Creek drainage. Some of these lands are 

owned by Lars and Mary Ann Olsen, husband and wife, and some 

by Robert and Joyce Olsen, husband and wife. 

Defendant Andrew Beck owns property uphill from the 

Olsens in the Upper Fred Burr Creek drainage. Defendant 

Donald Beck is the guardian of Andrew Beck, who has been 

adjudged an incompetent. Evered and Ramona McQueary, 

husband and wife, through a management agreement, are 

presently responsible for managing the Andrew Beck property. 

The McQuearys claim no water right in this action, and were 

dismissed as defendants by the District Court. 

Upper Fred Burr Creek is a natural stream arising in a 

hilly area east of the Beck property and flowing in a well 

defined channel through the Beck property. However, the 

creek disappears into the ground near the Beck farmstead, 

except in times of flood. The Lower Fred Burr Creek channel 

runs in a northwesterly direction and water flows in the 

channel on an intermittent basis. The District Court 

found that Upper Fred Burr Creek and Lower Fred Burr Creek 

channel arise from separate sources of water and except in 

times of flood, Upper Fred Burr Creek contributes no water 
to the Lower Fred Burr Creek channel. The court also found 

that Upper Fred Burr Creek is not a tributary to either 

Lower Fred Burr Creek channel or the Deer Lodge River. An y 

water that flows through the Lower Fred Burr Creek channel 

is either foreign water imported via irrigation ditches from 

Cottonwood Creek and Baggs Creek or waste, drainage and 

return flow accumulations from irrigation on adjacent 

ranches. 

Bob and Joyce Olsen have a decreed sixty inch water 

right out of Cottonwood Creek with an 1882 priority date. 

Louis Smith and Sam Beck own land in the Upper and Lower 

Fred Burr Creek drainages, between the respective ranches of 

plaintiffs and defendants. Louis Sinith and Sam Beck also 

have decreed rights from Cottonwood Creek. Bob and Joyce 

Olsen, Louis Smith and Sam Beck together import more than 

3,500 miner's inches of Cottonwood Creek water into the 

drainage area of Lower Fred Burr Creek channel. The ranches 

of Louis Smith and Sam Beck are uphill from the Olsens' land 

and any waste, drainage and return flow waters from 

irrigation on these ranches flow into the lower Fred Burr 

Creek channel and are available for use by plaintiffs. The 

District Court found that plaintiffs, Robert and Joyce 

Olsen, had appropriated and diverted sixty miner's inches of 

this water with a 1954 priority date. The court found that 

plaintiffs Lars and Mary Ann Olsen appropriated and diverted 

fifty miner's inches with a priority date of 1965. 

In 1872, defendants' predecessor, Grant, appropriated 

and diverted 250 miner's inches of Upper Fred Burr Creek 

waters. Grant's successor filed a declaration of water 

right in 1885 in the county office of the clerk and recorder 
in conformance with statutory law. Upper Fred Burr Creek is 

a high mountain stream whose principal flow occurs in the 

spring. Defendants' irrigated lands are located on steep 

hillsides with shallow topsoil laying over coarse rock and 

gravel. Successful growing of crops on this land requires 

repeated flood irrigation. 

The District Court found that 1.5 miner's inches per 

acre were required to successfully irrigate this land. 

There is seldom sufficient water in Upper Fred Burr Creek to 

irrigate all of defendants' land. Thus, Beck and his 

predecessor have consistently used the entire amount of 

Upper Fred Burr Creek waters available for irrigation and 

stock water purposes, except in times of flood. 

The District Court found that the defendant and his 

predecessors had appropriated and diverted 250 miner's 

inches from Upper Fred Burr Creek with a priority date of 

1872, and 1,010 miner's inches from Upper Fred Burr Creek 

with a priority date of 1915. 

Plaintiffs filed suit in 1979, alleging wrongful use 

of the waters of Fred Burr Creek by defendants and alleging 

that plaintiffs had superior rights to the water, at least 

to the waters in excess of 250 miners inches. Plaintiffs 

asked for an adjudication of rights to the waters of Fred 

Burr Creek and appointment of a water commission to measure 

and distribute the water in accordance with the court's 

decree. Defendants in their answer claimed superior rights 

to all waters of Fred Burr Creek. The case was heard by 

Judge Boy?., who entered a decree in April of 1983. The 

decree awarded defendants 1,260 miner's inches from Upper 

Fred Burr Creek. Plaintiffs Robert and Joyce Olsen were 
awarded sixty miner's inches from Lower Fred Burr Creek 

channel, and plaintiffs Lars and Mary Ann 01-sen were awarded 

fifty miner's inches from Lower Fred Burr Creek channel. 

The plaintiffs' first issue on appeal is whether the 

findings of fact and conclusions of law of the District 

Court are supported by substantial credible evidence. We 

first address a subsidiary issue raised by plaintiffs: Did 

the District Court err in adopting verbatim much of the 

proposed findings of fact and conclusions of law tendered by 

the respondents? 

In the past this Court has discouraged the trial 

court's wholesale adoption of proposed findings and 

conclusions of the prevailing party. In re Marriage of 

Wolfe (Mont. 1983), 659 P.2d 259, 261, 40 St. Rep. 211, 213; 

Tomaskie v. Tomaskie (Mont. 1981), 625 P.2d 536, 538-39, 38 

St.Rep. 416, 419. dowever as we stated in Kowis v. Kowis 

(Mont. 1983), 658 P.2d 1084, 1088, 40 St.Rep. 149, 154: 

" [W] here. . . findings and conclusions are sufficiently 

comprehensive and pertinent to the issues to provide a basis 

for decision, and are supported by the evidence, they will 

not be overturned simply because the court relied upon 

proposed findings and conclusions submitted by counsel." 

Here, the findings and conclusions of the trial court were 

comprehensive and pertinent to the issues presented for 

decision, providing a solid basis for the court's decision. 

The remaining question is whether the findings and 

conclusions of the District Court are supported by 

substantial credible evidence. 

The court found that the Fred Burr Creek drainage 

actually consisted of two separate streams, Upper Fred Burr 
Creek and Lower Fred Burr Creek channel. The court also 

determined that Upper Fred Burr Creek is not a tributary to 

Lower Fred Burr Creek channel. These findings provided the 

basis for the court's eventual decree of water rights to the 

parties. In particular, the plaintiffs maintain that 

findings of fact six and seven, quoted below, are clearly 

erroneous and require reversal. 

"6. That from the totality of the 

evidence as confirmed by the Defendants' 

expert, Charles C. Bowman, Upper Fred 

Burr Creek is a natural stream arising in 

a hilly area easterly from the Andrew A. 

Beck property, flowing in a well-defined 

channel through the Beck property until 

it disappears into the ground, except in 

times of flood, at or near the Beck 

farmstead, occupied by the McQuearys as 

their residence. 

"7. The Lower Fred Burr Creek channel is 

a separate source of water supply from 

Upper Fred Burr Creek and arises 

generally in the North Half of Section 27 

of Township 8 North, Range 9 West where 

it flows as an intermittent stream in a 

northwesterly direction." 

The standard of review long employed by this Court 

requires only that the findings and conclusions of the 

District Court be supported by substantial credible 

evidence. In re Marriage of Pickering (Mont. 1984), 678 

P.2d 1146, 1147, 41 St.Rep. 617, 618, "Findings will not be 

overturned unless there is a clear preponderance of evidence 

against them, recognizing that evidence may be weak or 

conflicting, yet still support the findings." Jensen v. 

Jensen (Mont. 1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930. 

The challenged findings of the trial court are 

largely, although not entirely, based upon the testimony of 

the respondents' expert witness, Charles C. Bowman. Bowman 

is a retired professor of agricultural engineering from 
Montana State University who has specialized for a number sf 

years in Montana water law, irrigation and drainage 

problems. Professor Bowman testified that Upper Fred Burr 

Creek is a drainage completely separate from Lower Fred Burr 

Creek channel. He testified that except in times of flood, 

Upper Fred Burr Creek disappears into the ground on the 

defendants' land, we11 uphill from plaintiffs' land. The 

upper creek goes underground where it flows into a large and 

very porous gravel deposit underlain by consolidated 

hardpan. Professor Bowman testifed that Lower Fred Burr 

Creek channel arises a considerable distance downslope from 

where the upper creek disappears, and is fed by water 

imported by ditches from Baggs and Cottonwood Creeks, and by 

return flow and drainage waters from field irrigation on 

ranches above plaintiffs' land. The testimony of Professor 

Bowman and others indicated that in excess of 3,500 miner's 

inches of foreign water was introduced each season into the 

Lower Fred Burr drainage through irrigation ditches. 

This testimony was corroborated by an American 

Stabilization and Conservation Service map and a United 

States Geological Survey contour map of the Fred Burr 

drainages, both of which were entered into evidence without 

objection. Both maps clearly depict a distinct break 

between the two stream courses along the east boundary of 

Section 26, Township 8 North, Range 9 West. Professor 

Bowman also testified that the Powell County Water Resources 

Survey book, which he helped prepare, reflected a clear 

division between the two drainages. The District Court took 

judicial notice of the Survey book, which is published by 

the State Engineer's Office in Helena, Montana. 
We hold that the trial court's findings of fact six 

and seven are supported by substantial credible evidence and 

will not be disturbed. 

The plaintiff also objects to the District Court's 

finding that the defendant established an appropriation 

based on beneficial use of 1,010 miner's inches, with a 

priority date of June, 1915. No objection was made to the 

court's finding in favor of the defendant of an 

appropriation of 250 miner's inches with a priority date of 

May, 1872. The court's findings make it clear that the 

total award of 1,260 miner's inches of water to defendant 

was intended by the court to recognize that Andrew A. Beck, 

and his grantors and predecessors in interest have 

consistently diverted and beneficially used - all of the 

available waters of Upper Fred Burr Creek since 1915. The 

defendant presented four witnesses at trial who testifed at 

length regarding the historical use of water from Upper Fred 

Burr Creek on the Beck ranch. All testified that the Beck 

ranch has used all of the waters of Upper Fred Burr Creek 

for irrigation. The oldest witness, Mr. Soren Beck, 

testified that this practice was established as early as 

1915. Viewing the record in a light most favorable to the 

prevailing party, it is evident that the District Court's 

finding of a 1915 a.ppropriation of 1,010 miner's inches by 

the defendant is supported by substantial credible evidence. 

In re Marriage of Pickering (Mont. 1984), 678 P.2d 1146, 41 

St.Rep. 617; Overton v. Overton (Mont. 1983), 674 P.2d 1089, 

40 St.Rep. 2047. 

The plaintiffs next contend that the District Court 

erred in sustaining the objections of defendants to certain 
testimony given in deposition by Alfred A. Bansen. 

Defendants objected to Hansen's testimony on grounds that it 

was speculative, immaterial, incompetent and irrelevant. 

Hansen's testimony focused on events occurring in the Fred 

Burr drainage area from 1905-1917, when Hansen was from 

eight to twenty years of age. Much of Hansen's testimony 

was speculative, and he plainly implied several times during 

the course of the deposition that his testimony was based on 

vague recollections from his childhood. Hansen's testimony 

concerning irrigation practices on Lars Olsen's land is 

irrelevant because, as the deposition eventually reveals, 

the land Hansen was discussing is not owned by Lars Olsen at 

all. Rather, it is part of the Kohrs Ranch, now owned by 

the federal government. Baving carefully reviewed Hansen's 

deposition, we find no error by the trial court in 

sustaining the objections. 

Finally, the plaintiffs argue that the District Court 

erred in sustaining the defendants' objections to 

introduction of plaintiffs' exhibits I and J. Exhibit I is 

a warranty deed to plaintiff Lars L. Olsen which purports to 

convey a decreed right to 500 miner's inches of Fred Burr 

Creek waters. We note that since this case is the only 

adjudication of the Fred Burr drainage to date, the deed in 

question could not have conveyed a decreed water right. 

Exhibit J is a deed in Lars L. Olsen's chain of title which 

purports to convey a water right of 500 miner's inches in 

Fred Burr Creek. Both exhibits were apparently introduced 

to establish a 500 miner's inch water right in favor of Lars 

L. Olsen. 

Plaintiff Lars L. Olsen argues that Exhibit J is 
admissible because it constitutes a substitute for a notice 

of appropriation under section 89-810, RCM 1947. Such a 

notice, "when duly made, shall be taken and received in all 

courts of this state as prima facie evidence of the 

statements therein contained." Section 89-814, RCM 1947. 

We find that the deeds do not qualify as notices of 

appropriation under section 89-810, RCM 1947. Even if we 

were to consider these deeds as notices of appropriation 

pursuant to section 89-810, they are fatally defective and 

inadmissible as evidence of an appropriation because they 

are executed with unsworn acknowledgements, rather than with 

verified affidavits as required by section 89-810. "This 

Court has strictly construed the provisions of section 

89-814. We have held that any nonconformance with section 

59-810 renders the notice of appropriation inadmissible as 

evidence." Holmstrom Land Co. v. Meagher Cty. Newlan Creek 

Water District (1979), 185 Mont. 409, 427, 605 P.2d 1060, 

1070. 

Plaintiff Lars L. Olsen also claims that Exhibit I 

should have been admitted because it established that Lower 

Fred Burr Creek channel carried enough water to provide 

Olsen with 500 miner's inches of water. Olsen contends that 

Exhibit I would therefore tend to establish that Upper Fred 

Burr Creek is a tributary to Lower Fred Burr Creek channel, 

rather than a separate drainage. This is a dubious 

assertion, since the recitation of a water right in the deed 

makes no reference to the source of the waters claimed. An 

overwhelming volume of the testimony presented at trial 

indicated that Upper Fred Burr Creek is isolated from Lower 

Fred Burr Creek channel, and that the water available in 
Lower Fred Burr Creek channel consists of foreign, waste, 

drainage and return flow waters. We need not address the 

technical question of admissibility where the effect of the 

disallowed exhibit is minimal in relation to the overall 

weight of evidence. The findings of the trial court would 

undoubtedly be unaffected by admission of Exhibit I. We 

will not reverse or remand a ruling of the District Court 

where, as here, it is clear that the eventual decision will 

remain unchanged. Kirby Co. of Bozeman, Inc. v. Employment 

Security Division of the Montana State Dept. of Labor and 

Industry (Mont. 1980), 614 P.2d 1040, 1043, 37 St.Rep. 1255, 

The judgment of the District Court is,affirmed. 

We concur: 

Justice ., 

- Chief Justice