### No. 12727 IN

### THE 

### SUPREME COURT 

### OF THE 

### STATE OF MONTANA 

### 1975

ELMER Do 

### HANSOM etale, Plaintiffs and Respondents,

SOUTH SIDE CANAL USERS' ASSOCIATION etal., Defendants and Appellants.

Appeal from: District Court of theFourteenthJudicial 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

### 31975 Filed:

## 3tF

## : 3

### :975

ClerkMr. 

### JusticeWesley Castles delivered the Opinion of the Court.

This is

### an appeal by defendants South Side Canal Users' Association and Montana StateWater Conservation Board, from

ajudgment of the district court, Meagher County, adj.udicating plaintiffs' rights towaters of the North Fork of the Smith River and awarding each a priority date of April 

### 1, 1915. The original decree adjudicatingwaters 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 theNorth Fork. Other persons having decreed rights in the North Fork have not been joined asparties tothis present action. On October 

### 23, 1935, theMontana StateWater Conservation Board filed for record in the office of the clerk and recorder of Meagher County its

### declarationof intention tostore, control and divert "All unappropriated waters of North Fork of Smith River and tributaries

# ***

II

### Saidwaters 

### willbe appropriatedby means of Storage Reservoir, Located: Meagher County, Sec. 17 & 

### 20, T. 

### 10N. R. 

### 8. 11 

### Within four years of the filingof thatnotice, the StateWater 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 filingof its 

### declaration, the StateWater Conservation Board alsocompleted the construction of the South Side Canal. Plaintiffs filedtheir 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, allof the above-named plaintiffs and their predecessors in interest have, in the spring season of each year, been taking and using forbeneficial use and purposes and forirrigation of their lands within the drainage of said Smith River and 

### its tributaries, substantialand

# *** additional amounts of the flood or waste waters that normally run and flow down said streamor streams, over and above their taking and use of their decreed rights in thenormal flow of said streamor streams; and that such appropriation and useage of said flood orwaste waters by plaintiffs and their predecessors in interest, have existed and been continuous, each and every year since the time of the entryof 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 ininterest, have made and established a valid appropriation and use of said flood and waste waters, datingback toa period prior to 1918. "That pursuant thereto, plaintiffs and their predecessors in interest have continuously used said flood orwaste waters in addition to their decreed rights in the normal flow of said stream during the months of April, May, and June of eachyear, until the defendant SOUTH SIDE CANAL USERS' ASSOCIATION interrupted and interferedwith 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 saidNorth Fork-of the Smith River and itstributaries, 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 plaintiffsherein additional rights inthewaters of said stream or streams in the respective amounts ashereinabove set forth for each of said plaintiffs

# *

# **. 

# "*

# ** and that tothe extent and amount of flood orwaste waters required tofillsaid reservoir, the plaintiffs herein recognize and accede to the rights of said Water Conservation Board, but that it isclaimed and sought by plaintiffsherein toassert and establish their respective rights to any and allwaste or flood waters in orupon said streams each year that arenot required for the fillingof saidreservoir, 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 inaddition to the purchased storagewaters from said reservoir, diverted and assumed toconvey through said ditch and canal, large quantities of flood orwaste waters from the saidNorth Fork of the Smith River and its tributaries, which arewaste or flood waters of said streamor streams, over and above the amounts thereof required for the purposes of the Montana StateWater Conservation Board and itsreservoir hereinabove mentioned. 

# *

# ** "That the diversionby said defendant, South Side Canal Users' Association, 

### of saidwaste or flood waters from said streamwas and isinderogation of the rights of each and allof the plaintiffs herein to theuse of said waters

# **

# *.1'

### That such diversion and interference of said flood or waste waters by said defendant South Side Canal 

### Users' Association, iswithout right, and contrarytotherights of the plaintiffs and each of them hereinabove named by virtue of the fact that, ashereinabove set forth, said plaintiffs and their respective predecessors in interest, have heretofore appropriated and established theirrespective rights tothe amounts of said flood orwaste waters in the amounts hereinabove stated, and have used and made beneficial use of suchwaters continuously for a period datingback prior to the year 1918, and that said plaintiffs, and each of them, are entitled as against said defendant South Side Canal users' Association, toa decree adjudicating the rights of said plaintiffs, and each of them, toprior rights inand tothewaters and flood waters of saidNorth 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 inthe use of the normal flow of said stream or streams

# * * *.I' 

### Trialcommenced October 13, 1970, but was continued until April 16, 1973, while the parties attempted to settletheir 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 thewaters 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 thatnone of the appropriations was later than the year 1915. He therefore awarded all plaintiffs additional water rights invarious quantities, eachwith

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 StateWater 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 atany time prior to

### Although numerous witnesses, including members of the South Side Canal users' Association, testified that they used as much flood water aswas available in the spring;that they had done so for as long as they could remember;and, that the flood waterswere beneficial to their crops;the testimony of only three witnesses bore even remotely on events prior to the year 1921. Billy Smithwas born in 1903 and had lived inWhite Sulphur Springs allhis life. In 1915,he would have been 12 years of age. He testified that the decreed users had been using considerableamounts of floodwaters ever since he could remember. However the earliest specific datewhich is mentioned in his testimony is 1925, when he startedworking for the CestleMountain 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 ranchhad been using the floodwaters "for the past 50 [years] that 

### Iknow of." Fifty years prior to the testimony of Louis Jeffersonwould have been 1923. Gertrude McStravick testified that she could "remember quite clearlywhat happened around 1913, '14." She stated shewas sure that her granduncle alwaysused 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. II 

### However,her testimony made no distinction between floodwater and decreed water. Further, on cross-examination, she admitted that she did not know the capacityof the ditches as farback 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 11,450miner's inches of flood waters to the fifteenplaintiffswith a priority date prior to 1921.Nor have plaintiffs since 1921acquired any rights in the waters of the North Fork of the Smith River additional to their 1890 decreed rights. In 1921the legislature enacted Chapter 228, Laws of 1921, which prescribed the method of making an appropriation of thewaters of an adjudicated stream. Section4 of that statutewas codified as section 89-829, R.C.M. 1947, repealed 1973. InAnaconda National Bank v. Johnson, 

### 75 Mont. 401, 411, 244 P. 141, thisCourt held that method of appropriation of the waters of an adjudicated streamexclusive 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 atthe time of its filing. Plaintiffs acknowledge they have notfollowedthe procedure formaking appropriations set forth in section 89-829, R.C.M. 1947, but contend, instead, that the statutory procedure isnot exclusive. That argument 

### isanswered by the holding inAnaconda National Bank. plaintiffs' complaint willnot be construed as the petition called forby section 89-829. The complaint sought the adjudication of rightswhich plaintiffs alleged had previously vested in them and which were, allegedly, beingwrongfully divertedby the South Side Canal Users' Association. It didnot purport toobtain forplaintiffsany new water right with a priority date as of the date of 

## - filingthe complaint. We do not answer whether plaintiffs could have obtained additionalwater 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 inmaking such

an appropriation. We acknowledge here the dissent of District Judge E. Gardner Brownlee, sittinginplace of Chief Justice James T. Harrison. First, aswe read the record, the south side canalwas constructedwithin four years of completion of the dam and isnot just recently built. The dissent states that we attempt to interpret the

Il 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, existingwater rights have not been "decreed" but they have been appropriated. The judgment of the district court isreversed.

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 attimes when the water supplywas short and the court was attempting to spread the availablewater among asmany landowers as possible. There isno dgubt that after 1890 the water users on the North Fork of Smith River, and in fact thewater users on allof 1!ontana1s decreed streams, continued touse much more water during the high water or flood-water season; neither isthere any doubt that such floodwaters were always put tobeneficial 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 statebuilt 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 tothe waters decreed to them by the 1890 decree. This fact alone should establish the need by the Plaintiffs forwater in addition towhat they were allowed by the 1890 decree, and should also establish that the floodwaters had always been needed and put tobeneficial use. Recently the statebuilt a canal to carry floodwaters from the North Fork of Smith River to an area outside the SmithRiver drainage. The statecontended they had the right todo thisbecause by their 1935 Declaration of Intent they had acquired ownership to allwaters 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 farback 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 Intentionby the state in 1935 did not deprive them of their existing rights. The majority opinion attempts to interpret the words

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unappropriated waters" in the state's Declaration of Intent as meaning waters that had not theretoforebeen decreed to some person. That such was not the legislative intent should be obvious from the existing facts, and iscertainlyborne out by the recent legislationwherein the StateLegislature stated that existing rights should be honored and that decreed rights were only one of the means of ascertaining the existingrights. 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 tothe floodwaters of the Worth Fork of Smith River, which existingrights 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 statea 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.