No. 12727 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

ELMER Do HANSOM et ale, 

Plaintiffs and Respondents, 

SOUTH SIDE CANAL USERS' ASSOCIATION et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable Victor He Fall, Judge presiding. 

Counsel of Record : 

For Appellants : 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Ben E. Berg, Jr. argued, Bozeman, Montana 

Harrison, Loendorf and Poston, Helena, Montana 

James To Harrison, Jr. argued, Helena, Montana 

For Respondents: 

Small, Cummins, Hatch and Gregory A. Jackson, Helena, 

Montana 

Floyd 0, Small argued and Carl Hatch appeared, Helena, 

Montana 

Submitted: April 8, 1975 

Decided: JUh! 1 3 1975 

Filed : 3tF : 3 :975 

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

This is an appeal by defendants South Side Canal Users' 

Association and Montana State Water Conservation Board, from 

a judgment of the district court, Meagher County, adj.udicating 

plaintiffs' rights to waters of the North Fork of the Smith River 

and awarding each a priority date of April 1, 1915. 

The original decree adjudicating waters of the North 

Fork of the Smith River was rendered by the district court on 

August 30, 1890. All plaintiffs in the present action, except 

Elmer Hanson and Howard Zehntner, are successors in interest to 

the original parties of the initial action and own decreed rights 

in the North Fork. Other persons having decreed rights in the 

North Fork have not been joined as parties to this present action. 

On October 23, 1935, the Montana State Water Conservation 

Board filed for record in the office of the clerk and recorder of 

Meagher County its declaration of intention to store, control and 

divert 

"All unappropriated waters of North Fork of Smith 

River and tributaries * * * I I Said waters will be appropriated by means of 

Storage Reservoir, Located: Meagher County, Sec. 

17 & 20, T. 10 N. R. 8. 11 

Within four years of the filing of that notice, the State Water 

Conservation Board constructed the Sutherland Dam with a capacity 

of approximately 11,000 acre feet of water. After the construction 

of the dam and within four years of the filing of its declaration, 

the State Water Conservation Board also completed the construction 

of the South Side Canal. 

Plaintiffs filed their complaint in the district court on 

March 6, 1969, and alleged therein: 

11 That ever since the making and entering of the aforementioned decree and adjudication of water rights, all of the above-named plaintiffs and their predecessors 

in interest have, in the spring season of each year, been 

taking and using for beneficial use and purposes and for 
irrigation of their lands within the drainage 

of said Smith River and its tributaries, substantial and * * * additional amounts of the 

flood or waste waters that normally run and flow down 

said stream or streams, over and above their taking 

and use of their decreed rights in the normal flow of 

said stream or streams; and that such appropriation and 

useage of said flood or waste waters by plaintiffs and 

their predecessors in interest, have existed and been 

continuous, each and every year since the time of the 

entry of said aforementioned decree and adjudication; 

and that by reason thereof, and through the taking and 

use of said flood or waste waters, plaintiffs and their 

predecessors in interest, have made and established a 

valid appropriation and use of said flood and waste waters, 

dating back to a period prior to 1918. 

"That pursuant thereto, plaintiffs and their 

predecessors in interest have continuously used said 

flood or waste waters in addition to their decreed 

rights in the normal flow of said stream during the 

months of April, May, and June of each year, until the 

defendant SOUTH SIDE CANAL USERS' ASSOCIATION interrupted 

and interfered with plaintiffs' use thereof during the 

past two years * * *. 

"* * * and that plaintiffs are accordingly desirous of obtaining herein a supplemental decree of 

adjudication of the water rights of said North Fork-of 

the Smith River and its tributaries, recognizing and 

adopting the decreed rights as established and existing 

under the aforementioned original adjudication decree of 

1890, together with any amendments thereof to the present 

time, and further adjudicating and decreeing to the plaintiffs herein additional rights in the waters of said 

stream or streams in the respective amounts as hereinabove 

set forth for each of said plaintiffs * * *. 

"* * * and that to the extent and amount of flood 

or waste waters required to fill said reservoir, the 

plaintiffs herein recognize and accede to the rights of said 

Water Conservation Board, but that it is claimed and 

sought by plaintiffs herein to assert and establish their 

respective rights to any and all waste or flood waters in 

or upon said streams each year that are not required for 

the filling of said reservoir, and which would normally 

otherwise be lost to any present beneficial use * * *. 

"* * * but that during the past two (2) years, 

said defendant South Side Canal users' Association, has 

also, and in addition to the purchased storage waters 

from said reservoir, diverted and assumed to convey through 

said ditch and canal, large quantities of flood or waste 

waters from the said North Fork of the Smith River and 

its tributaries, which are waste or flood waters of said 

stream or streams, over and above the amounts thereof required for the purposes of the Montana State Water Conservation Board and its reservoir hereinabove mentioned. * * * 

"That the diversion by said defendant, South Side 

Canal Users' Association, of said waste or flood waters from 

said stream was and is in derogation of the rights of 

each and all of the plaintiffs herein to the use of said 

waters * * *. 
1' That such diversion and interference of said 

flood or waste waters by said defendant South Side 

Canal Users' Association, is without right, and contrary to the rights of the plaintiffs and each of them 

hereinabove named by virtue of the fact that, as hereinabove set forth, said plaintiffs and their respective 

predecessors in interest, have heretofore appropriated and 

established their respective rights to the amounts of said 

flood or waste waters in the amounts hereinabove stated, 

and have used and made beneficial use of such waters continuously for a period dating back prior to the year 1918, 

and that said plaintiffs, and each of them, are entitled 

as against said defendant South Side Canal users' Association, to a decree adjudicating the rights of said plaintiffs, 

and each of them, to prior rights in and to the waters and 

flood waters of said North Fork of the Smith River and its 

tributaries, over and above any decreed rights that said 

plaintiffs, or any of them, or any other persons, may 

now have in the use of the normal flow of said stream or 

streams * * *.I' 

Trial commenced October 13, 1970, but was continued until 

April 16, 1973, while the parties attempted to settle their differences among themselves. In its findings of fact Nos. XIV and XV, 

the district c our t found that plaintiffs, or their predecessors in 

interest, made valid and complete appropriations of the waters of 

the North Fork of the Smith River, in addition to their rights under 

the 1890 decree; that the exact date of any one of such appropriations was not shown but it was clear that none of the appropriations was later than the year 1915. He therefore awarded all 

plaintiffs additional water rights in various quantities, each with 

an equal priority date of April 1, 1915. 

Several issues were raised by defendant South Side Canal 

Users' Association in its appeal. While the Montana State Water 

Conservation Board filed a brief and argued orally, it did not file 

any notice of appeal. We need discuss only one issue: Whether 

the evidence was sufficient to support the findings of fact and 

conclusions of law entered by the district court? We hold the 

evidence does not support a finding that any of the plaintiffs made 

a valid additional appropriation as of 1915 or at any time prior to 
Although numerous witnesses, including members of the 

South Side Canal users' Association, testified that they used as 

much flood water as was available in the spring; that they had 

done so for as long as they could remember; and, that the flood 

waters were beneficial to their crops; the testimony of only three 

witnesses bore even remotely on events prior to the year 1921. 

Billy Smith was born in 1903 and had lived in White 

Sulphur Springs all his life. In 1915, he would have been 12 

years of age. He testified that the decreed users had been using 

considerable amounts of flood waters ever since he could remember. 

However the earliest specific date which is mentioned in his testimony 

is 1925, when he started working for the Cestle Mountain Ranch. 

Louis Jefferson testified that he had worked on the 

Holmstrom ranch since 1918 and started irrigating "in the early 

20's". He then testified that the ranchers in the area had been 

It using the flood waters ever since that time". That latter testimony related as much to "the early 20's" as it did to 1918. He 

testified the Holmstrom ranch had been using the flood waters "for 

the past 50 [years] that I know of." Fifty years prior to the 

testimony of Louis Jefferson would have been 1923. 

Gertrude McStravick testified that she could "remember quite 

clearly what happened around 1913, '14." She stated she was sure 

that her granduncle always used the flood waters, "Otherwise he 

couldn't have grown the hay he did." She stated that she "rode 

around the ranch in his buggy with him and it was always very wet. I I 

However, her testimony made no distinction between flood water and 

decreed water. Further, on cross-examination, she admitted that 

she did not know the capacity of the ditches as far back as 1913. 

The testimony set forth above is the sole testimony in a 

lengthy transcript bearing on events prior to 1921. It was clearly 

insufficient to support the award of 11,450 miner's inches of 

flood waters to the fifteen plaintiffs with a priority date prior 

to 1921. 
Nor have plaintiffs since 1921 acquired any rights in 

the waters of the North Fork of the Smith River additional to 

their 1890 decreed rights. In 1921 the legislature enacted Chapter 

228, Laws of 1921, which prescribed the method of making an appropriation of the waters of an adjudicated stream. Section 4 of 

that statute was codified as section 89-829, R.C.M. 1947, repealed 

1973. In Anaconda National Bank v. Johnson, 75 Mont. 401, 411, 

244 P. 141, this Court held that method of appropriation of the 

waters of an adjudicated stream exclusive as to appropriations made 

after the passage of the act. Here, ~laintiffs' complaint did 

not comply with the requirements of section 89-829, as it existed 

at the time of its filing. 

Plaintiffs acknowledge they have not followed the procedure 

for making appropriations set forth in section 89-829, R.C.M. 1947, 

but contend, instead, that the statutory procedure is not exclusive. 

That argument is answered by the holding in Anaconda National Bank. 

plaintiffs' complaint will not be construed as the petition called 

for by section 89-829. The complaint sought the adjudication of 

rights which plaintiffs alleged had previously vested in them and 

which were, allegedly, being wrongfully diverted by the South Side 

Canal Users' Association. It did not purport to obtain for plaintiffs any - new water right with a priority date as of the date of 

filing the complaint. 

We do not answer whether plaintiffs could have obtained 

additional water rights had they complied with section 89-829, 

R.C.M. 1947, as it then existed; nor whether plaintiffs may 

appropriate the so-called "flood waters'' of the North Fork of the 

Smith River pursuant to the present Montana Water Use Act, sections 

89-865, R.C.M. 1947, et seq.; nor the extent of the state's 

appropriation should the plaintiffs be successful in making such 

an appropriation. 

We acknowledge here the dissent of District Judge E. Gardner 

Brownlee, sitting in place of Chief Justice James T. Harrison. 

First, as we read the record, the south side canal was constructed 
within four years of completion of the dam and is not just recently 

built. 

The dissent states that we attempt to interpret the 

I l words unappropriated waters" as meaning waters that had not 

theretofore been decreed. Far from it. We acknowledge that 

plaintiffs Hanson and Zehntner do not own "decreed" rights but 

do have valid appropriations. Of course, many, many, existing water 

rights have not been "decreed" but they have been appropriated. 

The judgment of the district court is reversed. 

Justice U 

We Concur: 

/ 

Justices. 
Hon. E. Gardner Brownlee, District Judge,sitting for Chief Justice 

James T. Harrison, dissenting: 

I dissent. 

Prior to 1890 the Plaintiffs' predecessors in interest 

dug canals and took the waters of the North Fork of Smith River 

and used them for irrigation purposes. On August 30, 1890 the 

District Court from Meagher County issued a decree adjudicating 

the waters of Smith River; in doing so the District Court followed 

the customary practice of awarding about one inch per acre of 

irrigated land. This practice took into consideration the fact 

that the adjudications were actually applicable only at times 

when the water supply was short and the court was attempting to 

spread the available water among as many landowers as possible. 

There is no dgubt that after 1890 the water users on the North 

Fork of Smith River, and in fact the water users on all of 

1!ontana1s decreed streams, continued to use much more water during 

the high water or flood-water season; neither is there any doubt 

that such floodwaters were always put to beneficial use. 

In 1935 the state of llontana filed a Declaration of 

Intent to Store, Divert and Control the unappropriated waters 

of the North Fork of Smith River. Within four years thereafter 

the state built a dam and a reservoir capable of holding 11,000 

acre feet of water. In the years following the construction 

of the dam the state always sold about three-fourths of that 

stored water to the Plaintiffs herein, who needed and used that 

water on their lands in addition to the waters decreed to them by 

the 1890 decree. This fact alone should establish the need by the 

Plaintiffs for water in addition to what they were allowed by 

the 1890 decree, and should also establish that the floodwaters 

had always been needed and put to beneficial use. 

Recently the state built a canal to carry floodwaters 

from the North Fork of Smith River to an area outside the Smith 
River drainage. The state contended they had the right to do 

this because by their 1935 Declaration of Intent they had 

acquired ownership to all waters that were not decreed by the 

1890 decree. The Plaintiffs thereupon brought this action to 

prevent the state from removing the floodwaters from the Smith 

River drainage; the Plaintiffs contended that as far back as 

1890 they had appropriated and had acquired a right to the use 

of the floodwaters, and that the mere filing of a Declaration 

of Intention by the state in 1935 did not deprive them of their 

existing rights. 

The majority opinion attempts to interpret the words 

11 unappropriated wa ters" in the state's Declaration of Intent as 

meaning waters that had not theretofore been decreed to some 

person. That such was not the legislative intent should be 

obvious from the existing facts, and is certainly borne out by 

the recent legislation wherein the State Legislature stated that 

existing rights should be honored and that decreed rights were 

only one of the means of ascertaining the existing rights. 

The District Court held in favor of the Plaintiffs, and 

the District Court Judge made some very accurate Findings of 

Fact and Conclusions of Law and held that the Plaintiffs had 

existing rights to the floodwaters of the Worth Fork of Smith 

River, which existing rights were in excess of the decreed rights 

which were applicable in the later irrigating season when the 

water supply was short. 

The District Court decree should be affirmed. However, 

it should be modified in two particulars: 

The District Court decree should be modified by granting 

the state a decreed right to store 11,000 acre feet of floodwaters, 

which decreed right should be subsequent to the 1890 decreed 

rights, but prior in time to the Plaintiffs' floodwater rights; 
The District Court decree should also be amended by 

granting to the state of Montana a decreed right to those floodwaters in excess of the floodwater rights granted to the 

Plaintiffs by the District Court. 

Hon. E. Gardner Brownlee, District 

Judge, sitting for Chief Justice James 

T. Harrison.