97-346

 

 No. 97-346

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 64

THOMAS D. AXTELL and

CARMEN D. AXTELL,

 

 Plaintiffs and Respondents, 

 v.

 

 M.S. CONSULTING, ET AL., 

 Defendants and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District,

 In and for the County of Madison,

 The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

 For Appellants:

 William A. Hritsco, Davis, Warren & Hritsco, Dillon, Montana

 For Respondents:

 W. G. Gilbert, III, Dillon, Montana; Robert C. Griffin, Herndon, 

Sweeney &

 Halverson, Billings, Montana (defendant Rowe)

 Submitted on Briefs: October 9, 1997

 Decided: March 24, 1998

Filed:

 __________________________________________

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 Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

¶1 M.S. Consulting, et al. (M.S. Consulting) appeal from the summary judgment and

decree entered by the Fifth Judicial District Court, Madison County, quieting title 

to certain

water rights in favor of Thomas D. Axtell and Carmen D. Axtell (the Axtells). We 

reverse

and remand.

¶2 The following issue is dispositive of this case:

¶3 Did the District Court err in holding that no genuine issues of material fact 

existed and

that summary judgment was proper?

 BACKGROUND

¶4 M.S. Consulting is the owner of a 110-acre parcel of land located east of 

Sheridan,

Montana in Madison County (hereinafter the "large parcel"). Within this large 

parcel lies

a 2-acre parcel owned by the Axtells (hereinafter the "small parcel"). The Axtells 

own a

house and operate a machine shop on the small parcel. Eclipse Creek runs through 

both the

large and small parcels. Located on the large parcel, but beyond the perimeter of 

the small

parcel are several springs. Over the years, the Axtells and their predecessors in 

interest have

used one of these springs for their domestic water needs. It is the water rights to 

this spring

which is the subject of the parties' dispute.

¶5 Prior to 1951, the large and small parcels were a single parcel owned by Nellie 

Clemo

Duncan. Ms. Duncan lived in a small house located east of Eclipse Creek on what is 

now

the small parcel. Ms. Duncan's granddaughter, Janet Kentfield (Kentfield), who 

lived with

Ms. Duncan from 1936 until 1943, testified that her grandmother's house had no 

electricity

or indoor plumbing, and that their water needs were met by going either to the 

spring on the

large parcel, or to nearby Mill Creek, and packing home buckets of water every day. 

It

appears from the facts that the water from Eclipse Creek was not suitable for 

drinking. 

Kentfield testified that located west of Eclipse Creek, still on what is now the 

small parcel,

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was another small cabin that her grandmother used for storage. When Ms. Duncan's 

house

burned down sometime after 1943, she fixed up the small storage cabin and moved 

there. 

Kentfield testified that this second home likewise had no electricity or indoor 

plumbing. 

Although Kentfield moved away in 1943, she visited her grandmother periodically. It 

was

Kentfield's belief that from 1943 until her grandmother's death in 1950, her 

grandmother

continued to have water packed from the spring or from Mill Creek to her home. 

Kentfield

testified that during the years she lived with and visited her grandmother, she 

never saw nor

was made aware of any pipes, spigots, or other devices carrying water from the 

spring to Ms.

Duncan's home.

¶6 Florence W. Baker was a close friend and neighbor who took care of Ms. Duncan. 

Ms. Baker's daughter, Shirley McLaren (McLaren), testified that she assisted her 

mother in

taking care of Ms. Duncan by packing the water from either the spring or Mill Creek 

to the

house. McLaren testified that before she left the area in 1953, Ms. Duncan's water 

needs

were met by spring water which traveled from the spring via galvanized pipe to a 

spigot

located just outside the home. 

¶7 On May 9, 1950, the elderly Ms. Duncan conveyed her property to Ms. Baker. Ms.

Duncan continued to live on the property until her death on August 10, 1950. 

Thereafter,

the house was vacant.

¶8 On June 15, 1951, Ms. Baker divided the property by conveying the large parcel 

to

H. H. Halse (Halse) and reserving the small parcel. The deed from Ms. Baker to Halse

conveyed the stated portion of land "[t]ogether with all and singular the tenements,

hereditaments, and appurtenances thereunto belonging or in anywise appertaining." 

The

deed made no mention of water rights. Ms. Baker owned the small parcel for the next 

ten

years and the house continued to remain vacant.

¶9 On September 6, 1961, Ms. Baker sold the small parcel to Milton and Marilyn Hunt

(the Hunts). The deed from Ms. Baker to the Hunts expressly conveyed "full right to 

all

water or water rights on said property." In 1962, the Hunts constructed a home on 

the small

parcel west of Eclipse Creek. Ms. Hunt testified that there were no sources other 

than

Eclipse Creek from which to supply their new home with water. Despite the 

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conveyance of

water rights in their deed, the Hunts asked Halse for permission to use water from 

the spring

on the large parcel. Halse agreed and permitted the Hunts to construct a water 

collection box

at the spring and bury plastic water pipes from the spring to their home site. Ms. 

Hunt

testified that during construction of the spring water conveyance system, she and 

her husband

discovered no other buried pipes or evidence of a pre-existing water conveyance 

system

which would have carried water from the spring to the small parcel. Ms. Hunt also 

stated 

that she used the former Nellie Clemo Duncan cabin for storage and that it had no 

indoor

plumbing. She stated she never saw nor was she aware of any pipe or spigot conveying

water to the cabin.

¶10 Ms. Hunt testified that after building the spring water conveyance system, she, 

her

husband, and Halse entered into a signed, written 99-year lease of the spring water. 

However, neither party has been able to locate this lease. On December 17, 1963, 

Halse

filed a Declaration of Vested Groundwater Rights for the "total flow of all springs" 

located

on the large parcel.

¶11 In October, 1975, the Hunts sold the small parcel to Thomas Walter (Walter). 

Walter

testified that he purchased the small parcel with a loan from the Veterans 

Administration

who, before approving the loan, warned Walter that his spring water rights were not 

secure

and that he may some day have to find another water source or drill a well. At the 

time, the

large parcel, formerly owned by Halse, was now owned by Floyd Fossceco (Fossceco). 

Walter testified that he continued to use the spring water conveyance system that 

the Hunts

had installed, and that Fossceco never made an issue of water rights.

¶12 Walter also testified that during his ownership of the small parcel, he buried 

a half-inch metal pipe across the small parcel, past the Duncan cabin, and up to the 

top of an

adjacent mountain where a television antennae was located. Walter testified that 

within the

pipe he inserted television cables and that he undertook this project to obtain 

better television

reception at his house.

¶13 In June, 1984, Walter agreed to sell the small parcel to Ralph Hamler 

(Hamler). To

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purchase the parcel, Hamler applied for a loan with the Farmer's Home Administration

(FHA). The FHA would not approve the loan because the water supply to the house did 

not

meet FHA specifications. For the loan to be approved, the FHA required Walter to 

drill a

well and plumb the house accordingly. Walter complied with this request, and in so 

doing,

installed a valve in the basement of the house so that one could easily alternate 

between

using well water and spring water. Walter then sold the small parcel to Hamler.

¶14 On May 15, 1990, the Axtells purchased the small parcel. Soon thereafter, the 

Axtells

demolished the former Nellie Clemo Duncan cabin, burned it, and discovered remnants 

of

old half-inch galvanized pipe that had not burned. In 1991, the Axtells hired Joe 

Tezak

(Tezak) to excavate a portion of their land for a machine shop they were planning to 

build

for their business of manufacturing rifle sights and target rifles. During this 

excavation,

Tezak discovered an old galvanized pipe approximately one and a half feet below the 

level

at which the plastic water pipes had been buried. In 1992, the Axtells completed

construction of the machine shop and plumbed it so that they could alternate between 

both

well water and spring water. The Axtells mostly used spring water for their needs 

in the

machine shop.

¶15 On December 10, 1993, the Axtells filed with the Montana Department of Natural

Resources and Conservation a Notice of Water Right to "developed springs" with a 

diversion

rate of sixteen gallons per minute. On the form, the Axtells indicated that they 

used the

spring water for both domestic and livestock purposes.

¶16 On December 15, 1993, Fossceco sold the large parcel to M.S. Consulting. 

Fossceco

represented to M.S. Consulting that the Axtells' use of spring water was by 

permission only. 

Immediately after closing on their purchase, M.S. Consulting filed a Notice of Water 

Right

on all the springs located on the large parcel, unaware that the Axtells had filed 

their Notice

of Water Right to the spring a few weeks earlier.

¶17 In August, 1995, M.S. Consulting excavated a pond and constructed a dam on the

large parcel. During the excavation process, the Axtells' plastic spring water pipe 

was

accidentally severed. The water pipe was temporarily fixed but left on top of the 

ground

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pending completion of the dam. The Axtells requested M.S. Consulting to re-bury the 

pipes

but M.S. Consulting refused. After several failed negotiations in trying to resolve 

the matter,

M.S. Consulting gave the Axtells written notice that their water arrangement was 

terminated

and that the Axtells' spring water supply would be cut off in forty-five days. On 

October 15,

1995, M.S. Consulting cut off the Axtells' spring water supply.

¶18 The Axtells responded by filing a complaint and obtaining an ex parte temporary

restraining order (TRO) allowing them to re-connect the water line. A week later, a 

hearing

was held on the matter of the TRO after which the District Court issued a temporary

injunction enjoining M.S. Consulting from further interference with the Axtells' 

spring water

supply.

¶19 On June 5, 1996, the Axtells moved for summary judgment. On October 30, 1996,

after hearing oral argument on the matter, the District Court issued its Findings of 

Fact and

Conclusions of Law. The court found that summary judgment was proper because no

material issues of fact were in dispute. The court found that Ms. Duncan had 

obtained water

from the spring on what is now the large parcel, via galvanized pipe, to a spigot 

outside her

home on what is now the small parcel. The court concluded as a matter of law that 

when

Ms. Baker divided her land, conveying the large parcel to Halse and reserving the 

small

parcel, she necessarily reserved with the small parcel the appurtenant water right, 

even

though she did not expressly reserve such water right in the deed. The court 

concluded that

this water right was thereafter transferred to the Hunts, and through several mesne

conveyances, to the Axtells. The court further concluded that the water right 

claimed by

M.S. Consulting was later in time and subordinate to that of the Axtells. The court 

held that

the Axtells were entitled to the use of all waters of the spring.

¶20 After receiving notice of judgment, M.S. Consulting filed a motion to quantify 

the

Axtells' water right, but the motion was denied. M.S. Consulting then appealed to 

this

Court.

 STANDARD OF REVIEW

¶21 Our standard of review in appeals from summary judgment rulings is de novo. 

Mead

v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a 

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district

court's grant of summary judgment, we apply the same evaluation, based on Rule 56,

M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 

261, 264,

900 P.2d 901, 903. In Bruner, we set forth our inquiry:

 The movant must demonstrate that no genuine issues of material fact exist. 

 Once this has been accomplished, the burden then shifts to the non-moving

 party to prove, by more than mere denial and speculation, that a genuine issue

 does exist. Having determined that genuine issues of fact do not exist, the

 court must then determine whether the moving party is entitled to judgment as

 a matter of law. We review the legal determinations made by a district court

 as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

 DISCUSSION

¶22 Did the District Court err in holding that no genuine issues of material fact

existed and that summary judgment was proper?

¶23 In determining whether genuine issues of material fact exist in this case, it is

necessary to first set out the legal framework in which water law issues are 

decided. The

following information was taken from Professor Emeritus Albert W. Stone's 1994 

treatise

Montana Water Law. In Montana, prior to 1973, water rights were adjudicated 

according

to the doctrine of prior appropriation. Under this doctrine, a person could acquire 

an

exclusive right to use a specific amount of water by applying it to the land for a 

beneficial

use, or, in other words, "appropriating" the water. Prior appropriations had 

priority over later

appropriations. Over time, as the number of appropriators claiming water rights in 

Montana

increased, the adjudication of these rights became cumbersome and complex. Finally, 

in

1973, the Montana Legislature passed the Water Use Act (the Act), abolishing the 

doctrine

of prior appropriation and creating a new system of adjudicating water rights. See 

Montana

Water Use Act, 1973 Mont. Laws 452; Sections 85-2-212 to -907, MCA. The Act mandated

that all holders of existing claims to water rights in a particular water basin file 

with the

Montana Department of Natural Resources and Conservation (DNRC). Once existing 

claims

were filed, the DNRC was to give each claim a priority date. If any conflicts arose

concerning the priority of claims, then such claims were to be inspected by the DNRC 

and

adjudicated in a water court. The Act provided that once existing water rights were

adjudicated and filed according to a priority date, any new claims could arise only 

by the

statutory method of filing, and, later filings would be subordinate to earlier ones.

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¶24 Some water rights, including livestock and domestic uses of groundwater, are 

exempt

from the filing requirements of the Act. Section 85-2-222, MCA. However, 

regardless of

whether a water right is exempt from filing or not, the Act provides that once a 

water right

is filed, then the filing constitutes prima facie evidence of its content until the 

issuance of a

final decree. Section 85-2-227, MCA. At the present time, the process of water 

rights

adjudication under the Act is ongoing in Montana.

¶25 Although water rights adjudication today occurs in the framework of the Act, 

the Act

is not the only law that applies. Because the Act recognizes existing water rights, 

pre-1973

law is still applicable in determining the existence and validity of water rights 

acquired

before 1973. Much of the pre-1973 case law has been codified in the Montana Code

Annotated. Because the water right at issue in this case spans a significant number 

of years

prior to 1973, we must apply pre-1973 law in determining the rights of the parties 

and in

determining whether there exist genuine issues of material fact making summary 

judgment

improper. 

¶26 We turn then to the legal framework of the pre-1973 law. As previously stated, 

under

the common law doctrine of prior appropriation, a person could acquire an exclusive 

right

to use a specific amount of water by applying it to the land for a beneficial use. 

"Appropriate" means to "divert, impound, or withdraw . . . a quantity of water." 

Section 85-2-102(1)(a), MCA. "Beneficial use" means "a use of water for the benefit 

of the appropriator

. . . including but not limited to agricultural (including stock water), 

domestic, . . . industrial,

irrigation, . . . and recreational uses." Section 85-2-102(2)(a), MCA. 

Appropriations, or "use

rights," have been recognized since the early pioneer days. After numerous use 

rights had

accumulated on the waters in Montana, the Montana Legislature passed a law in 1885

providing that an appropriative water right could also be established by posting a 

Notice of

Water Right at the point of diversion and filing the notice with the county clerk. 

See Dept.

of State Lands v. Pettibone (1985), 216 Mont. 361, 367, 702 P.2d 948, 951. 

Regardless of

which method a person used to acquire a water right, common law or statutory, the

underlying rule was that earlier appropriations had priority over later ones.

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¶27 Once a water right was acquired, it could be transferred. This is so even 

today under

post-1973 law. Generally, a water right is appurtenant to the land where it is 

used, "and, as

such, passes with the conveyance of the land . . . even though the grant does not 

specifically

mention the water right." Maclay v. Missoula Irrigation Dist. (1921), 90 Mont. 344, 

353, 3

P.2d 286, 290 see also Schwend v. Jones (1973), 163 Mont. 41, 44, 515 P.2d 89, 91. 

However, a water right may be severed from the land to which it is appurtenant by 

either of

the following: (1) the grantor's conveyance of the land and express reservation of 

the water

right, or (2) the grantor's conveyances of the land and water right separately. 

Maclay, 3 P.2d

at 290. These rules are restated in 70-1-520, MCA, which provides that "[t]he 

transfer of

a thing transfers also all its incidents unless expressly excepted, but the transfer 

of an

incident to a thing does not transfer the thing itself." Once a water right is 

transferred, the

new owner of the water right is prohibited from enlarging the water right beyond the 

original

owner's use. Maclay, 3 P.2d at 290.

¶28 The division of a tract of land raises the additional question of how to 

quantify the

water right appurtenant to each subdivision. In Bullerdick v. Hermsmeyer (1905), 32 

Mont.

541, 553, 81 P. 334, 337 (overruled on other grounds), we held that two grantees who 

had

acquired subdivided parcels of the grantor's land "each became vested with an 

interest in the

water, measured in amount by the requirements in each case . . . ." Similarly, in 

Spaeth v.

Emmett (1963), 142 Mont. 231, 237, 383 P.2d 812, 815 we held:

 [W]hen an owner of a tract of land with an appurtenant water right grants a

 portion of the tract without any express division or reservation, the 

appurtenant

 water right is divided in respective amounts to each tract measured in

 proportion as the number of acres irrigated with the water right on the land

 conveyed bears to the total number of acres irrigated by the water.

¶29 Once a person acquires a water right, either through appropriation or transfer, 

he must

continue to use the water right for a beneficial purpose or risk losing the water 

right through

abandonment. In Matter of Clark Fork River Drainage Area (1995), 274 Mont. 340, 344,

833 P.2d 1120, 1123, we recently stated the law of abandonment as it applies to 

water rights:

 Two elements are necessary for the abandonment of a water right: nonuse of

 the water associated with the water right and intent to abandon the water right.

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 [E]vidence of a long period of continuous nonuse of a water right raises a

 rebuttable presumption of an intent to abandon that right and shifts the burden

 of proof to the nonuser to explain the reasons for nonuse. To rebut the

 presumption of abandonment, there must be established some fact or condition

 excusing the long period of nonuse, not mere expressions of hope or desire .

 . . regarding future use of the water.

(citations omitted) (the court held that 23 years of nonuse of water rights was 

sufficient to

raise a rebuttable presumption of abandonment). See also 79 Ranch, Inc. v. Pitsch 

(1983),

204 Mont. 426, 431, 666 P.2d 215, 217 (40 years); Holmstrom Land Co. v. Meagher 

County

Newlan Creek Water District (1980), 185 Mont. 409, 424, 605 P.2d 1060, 1069 (75 

years);

Smith v. Hope Mining Co. (1896), 18 Mont. 432, 438-39, 45 P. 632, 634 (9 years). 

¶30 Having set forth the applicable law regarding the acquisition, transfer, and 

possible

loss of water rights, we are prepared to apply the law to the facts of this case and 

determine

whether there exist any genuine issues of material fact. We begin by tracing the 

water right

back to Nellie Clemo Duncan.

¶31 The record shows that Ms. Duncan held a valid water right to the spring in 

question

until May 9, 1950, the date she conveyed her property to Ms. Baker. Ms. Duncan's

appropriation and beneficial use is evidenced by the testimony of Kentfield and 

McLaren

that they helped Ms. Duncan pack water from the spring to her home for her domestic 

needs. 

Although the facts are in dispute as to whether Ms. Duncan later appropriated spring 

water

via galvanized pipe to a spigot outside her home, these facts are not material to 

the initial

question of whether Ms. Duncan possessed a valid water right. In answering this 

question,

we look only to facts establishing Ms. Duncan's appropriation, not her method of

appropriation.

¶32 On May 9, 1950, when Ms. Duncan conveyed the land to Ms. Baker, Ms. Baker

owned the water right because it passed with the land as an appurtenance. Maclay, 3 

P.2d

at 290. The record shows that for the next three months, until Ms. Duncan's death 

on August

10, 1950, Ms. Baker continued to help Ms. Duncan meet her domestic water needs. 

Thus,

it follows that Ms. Baker had a valid water right during this time because she 

continued to

apply the water to the land for a beneficial use. Clark Fork, 833 P.2d at 1123.

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¶33 After Ms. Duncan's death, Ms. Baker owned the entire tract of land for ten 

months

during which the Duncan cabin was vacant. Without citing to authority, M.S. 

Consulting

argues that due to this period of vacancy, and apparent nonuse of the water right, 

there exists

a factual dispute as to whether Ms. Baker possessed a valid water right at the time 

she

divided her land. It appears M.S. Consulting is making an argument of abandonment. 

As

previously stated, two elements must be shown to prove abandonment: nonuse of the 

water

and intent to abandon the water right. Clark Fork, 833 P.2d at 1123. First, with 

regard to

nonuse, we note that a mere vacancy of one's home does not necessarily mean that 

water is

not being used. Second, with regard to intent, evidence of a long period of 

continuous

nonuse of a water right raises a rebuttable presumption of an intent to abandon. 

Clark Fork,

833 P.2d at 1123. The cases previously cited discussing the law of abandonment 

illustrate

that ten months does not meet this Court's definition of a "long period of continuous

nonuse." In Montana, the shortest period of continuous nonuse raising a rebuttable

presumption of abandonment is nine years. Smith, 45 P. 632, 634. Because M.S. 

Consulting

cannot prove the elements of abandonment for this ten-month period, we conclude that 

Ms.

Baker possessed a valid water right at the time she divided her land.

¶34 When Ms. Baker divided her land on June 15, 1951, conveying the large parcel to

Halse and reserving the small parcel, an appurtenant water right passed with the 

conveyance

to Halse, and an appurtenant water right remained with Ms. Baker, each in proportion 

to the

extent of use beneficially applied to the land before the division. Spaeth, 383 

P.2d at 815. 

This is true even though Ms. Baker did not specifically reserve the water right with 

her

reservation of the small parcel. Maclay, 3 P.2d at 290.

¶35 Although Ms. Baker possessed a valid water right appurtenant to the small 

parcel she

reserved, a question exists as to whether Ms. Baker thereafter lost this water right 

through

abandonment. M.S. Consulting asserts that because the Duncan cabin remained vacant

during Ms. Baker's ownership of the small parcel, a period of eleven years, and 

because no

water conveyance system existed on the small parcel during this period, Ms. Baker 

never

used her water right. M.S. Consulting argues that such nonuse resulted in Ms. 

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Baker's loss

of the water right. Again, although M.S. Consulting did not explicitly mention 

abandonment

in its brief, it appears that abandonment is the argument M.S. Consulting intended 

to make. 

In support of its position that no water conveyance system existed on the small 

parcel during

Ms. Baker's period of ownership, M.S. Consulting relies on the testimony of 

Kentfield, Ms.

Hunt, and Walter, that they had never seen and were never made aware of any metal 

pipes,

spigots, or other devices designed to carry water from the spring on the large 

parcel to the

cabin on the small parcel.

¶36 The Axtells do not dispute the vacancy of the Duncan cabin during Ms. Baker's

ownership of the small parcel. However, the Axtells argue that Ms. Baker did not 

abandon

her water right because evidence in the record shows that a water conveyance system 

existed

during the period of Ms. Baker's ownership of the small parcel. The Axtells point to

McLaren's testimony that in the last years of Ms. Duncan's life, her water needs 

were met

by a galvanized pipe carrying water from the spring to a spigot located outside her 

home. 

Similarly, Joe Tezak testified that while excavating the small parcel for the 

Axtells, he

discovered galvanized pipe located one and one half feet below the plastic water 

pipes the

Hunts had buried. Further, Mr. Axtell testified that galvanized pipe was discovered 

in the

rubble of the burned Duncan cabin. M.S. Consulting purports to explain the 

existence of this

galvanized pipe by arguing that it is the same metal pipe buried by Thomas Walter to 

protect

his underground television cables. However, M.S. Consulting has submitted no 

evidence

explaining why no television cables were found in the rubble with the galvanized 

pipe.

¶37 Having reviewed the record, we conclude that several issues of material fact 

exist with

respect to whether Ms. Baker abandoned her water right: whether a water conveyance 

system

existed during Ms. Baker's ownership of the small parcel; whether Ms. Baker failed 

to use

the water right; and whether Ms. Baker intended to abandon her water right. These 

factual

disputes are material to the outcome of this case because if Ms. Baker did not 

abandon her

appurtenant water right to the small parcel, then the Hunts, and through mesne 

conveyances

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the Axtells, would have acquired the appurtenant water right. Maclay, 3 P.2d at 

290; Section

70-1-520, MCA. However, if Ms. Baker abandoned her water right, then no water right 

was

ever available to pass with the conveyance of the small parcel to the Hunts and 

later to the

Axtells.

¶38 M.S. Consulting argues that the priority of water right filings, Halse's 

declaration of

water right filed in 1963 and the Axtells' notice of water right filed in 1993, is 

another

factual dispute material to this case. We hold that this factual dispute is only 

material if Ms.

Baker in fact abandoned her appurtenant water right. If Ms. Baker abandoned her 

water

right, then Halse's filing would be relevant and material in showing that Halse 

thereafter

appropriated her former right, and owned all rights to the spring. Otherwise, the 

filings are

immaterial in deciding this case because the water rights at issue, livestock and 

domestic uses

of groundwater, are exempt from the filing requirements of the Water Use Act. 

Section 85-2-222, MCA.

¶39 Lastly, M.S. Consulting argues that the quantity of water used in connection 

with the

water right is a genuine issue of material fact. We agree, but only upon an initial 

finding that

Ms. Baker did not abandon her water right. If this is the case, and an appurtenant 

water right

remained with Ms. Baker's reservation of the small parcel, then the Spaeth rule 

applies and

the court must apportion the appurtenant water rights according to the extent of use

beneficially applied to the land before the division. Spaeth, 383 P.2d at 815. The 

court must

also apply the rule that successors in interest cannot enlarge a water right beyond 

that which

was conveyed. Maclay, 3 P.2d at 290.

¶40 Having discussed both the legal framework under which this case should be 

decided,

and the factual disputes that are material to the outcome of this case, we hold that 

genuine

issues of material fact exist and that summary judgment was improper. The judgment 

of the

District Court is reversed and this case is remanded to the District Court for 

further

proceedings consistent with this opinion.

 /S/ WILLIAM E. HUNT, SR.

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97-346

We Concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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