No. 13848 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

HOLMSTROM LAND COMPANY, INC., a 

Montana Corporation, 

Plaintiff and Appellant, 

-vsMEAGHER COUNTY NEWLAN CREEK WATER DISTRICT, 

Defendant, Appellant and Respondent, 

and 

WARD PAPER BOX CO., et al., 

Defendants and Respondents and 

Cross-Appellants. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

Heath and Kirwan, Bozeman, Montana 

Peter M. Kirwan argued, Bozeman, Montana 

Patrick F. Hooks, Townsend, Montana 

Loble & Pauly, Helena, Montana 

Henry Lobleargued and Bruce Loble argued, Helena, Montana 

John V. Potter argued, White Sulhpur Springs, Montana 

Small and Hatch, Helena, Montana 

Floyd 0. Small argued, Helena, Montana 

Gary Spaeth argued, Helena, Montana 

Robert T. Cumrnins appeared, Helena, Montana 

For Respondents: 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

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

Submitted: November 29, 1978 

Filed: ..,,; 3 f.j73 

. - 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

This is a multiple appeal from the findings of fact, 

conclusions of law and decree entered by the District Court, 

Meagher County, adjudicating water rights to Sheep Creek and 

its principle tributaries. 

Sheep Creek, which is located entirely in Meagher 

County, originates in the Little Belt Mountains. It flows 

from the mountains in a westerly direction to a point where 

it merges with the Smith River. Sheep Creek carries large 

quantities of water for a relatively short period each year, 

usually commencing in April and extending through the latter 

part of June. During this heavy flow period, and at other 

times during the year, many farmers and ranchers divert 

Sheep Creek water by means of gravity flow systems and 

utilize the water to irrigate their farm and ranch land. 

When gravity flow systems are used, the water is removed 

from a stream at a facility called a diversion point. The 

water is then transported through an irrigation ditch to the 

area to be irrigated. From 1935 to 1972, Holmstrom Land 

Company maintained the first diversion point on Sheep Creek. 

Holmstrom's diversion was located approximately 300 feet 

(Ward) 

upstream from Ward Paper Company's/ Mumbrue diversion. 

In 1972 Ward built what we will refer to as the Mumbrue 

Bypass. This concrete structure was built above Holmstrom's 

diversion point and allowed Ward to divert Sheep Creek water 

before it reached the Holmstrom diversion. The building of 

the Mumbrue Bypass precipitated the present lawsuit. In October 

1972, Holmstrom Land Company instituted a suit in Meagher 

County District Court seeking an injunction prohibiting Ward's 

use of the Mumbrue Bypass, and a decree establishing the rights 
of all parties claiming water from Sheep Creek and its 

tributaries. 

In addition to Ward, Holmstrom Land Company joined: 

Dean 0. Thorson, Virginia Thorson, Porter Fender, Elmer V. 

Hanson, Walter Joyce, Axel M. Holmstrom, Jr., Rose Holmstrom, 

the Montana Resources Board of the State of Montana (Resources 

Board) and Meagher County Newlan Creek Water District (District). 

The individual defendants were joined because they all 

purportedly claimed vested water rights in Sheep Creek as a 

result of having used its water for beneficial purposes. 

The Resources Board and the District were joined as defendants 

because they claimed existing rights in Sheep Creek pursuant 

to filings under sections 89-121 and 89-810, R.C.M. 1947 

(since repealed). 

After extensive pretrial discovery and numerous motions 

to dismiss, the case was set for trial before the District 

Court, sitting without a jury. The trial was held over a 

six month period, but only eight days of actual litigation 

were involved (November 19 and 20, 1974; May 14, 15 and 16, 

1975; July 29, 30 and 31, 1975). 

At the conclusion of the trial all parties submitted 

proposed findings to the District Court. Thereafter, on 

February 3, 1977, the District Court entered findings of 

fact, conclusions of law and a decree establishing the 

relative rights and priorities of those parties claiming an 

interest in Sheep Creek and its tributaries. These findings 

were amended once to grant certain individuals additional 

water rights. Thereafter, the District Court denied all 

motions to further amend its findings. 

On August 30, 1977, the District filed a limited notice 

of appeal challenging the water rights granted to Ward and 

Dean and Virginia Thorson. The District's notice of appeal 

-3- 
also indicated that the District would seek to expand the 

water rights granted to it by the District Court. On September 

9, 1977, Ward cross-appealed and challenged the propriety of 

the water rights granted to the following parties: Holmstrom 

Land Company, Dean and Virginia Thorson, Walter Joyce, Elmer 

and 

Hanson, Riverside Ranch Co., the Resources Board/the District. 

On September 15, 1977, Holmstrom Land Company filed a 

general notice of appeal and thus the entire decree is being 

challenged in some respect. 

The three parties filing notices of appeal have raised 

numerous issues for our review. We group the issues raised 

by the parties into four subheadings: (1) the sufficiency 

of the decree entered by the District Court; (2) the sufficiency 

of the evidence to support the awards granted to Ward, 

Holmstrom Land Company, Thorsons, Joyce,Hanson and the 

Riverside Ranch; (3) the propriety of the awards granted to 

the District and the Resources Board; and finally, (4) the 

sufficiency of the evidence to support injunctive relief in 

favor of Holmstrom Land Company. 

SUFFICIENCY -- OF THE DECREE 

The first issue to be discussed is the sufficiency of 

the decree entered by the District Court. The District 

argues that the water decree is insufficient because it 

fails to specify: (1) the exact acreage to which the water 

rights were appurtenant; (2) the seasonal and hourly limitations 

which should be imposed on the various water rights; and, 

(3) the exact location of the various diversion points. 

Without this information, the District alleges the water 

right decree will only foster further conflicts between the 

parties using Sheep Creek. Holmstrom Land Company joins the 

District in its claim that the decree is deficient. 
There is no doubt that the decree adjudicating Sheep 

Creek could have been more detailed. But, the question 

before this Court is whether the decree satisfies the statutory 

requirements, particularly section 89-815, R.C.M. 1947, 

which provides: 

"Rights settled -- in one action. In any action 

hereafter commenced for the protection of 

rights acquired to water under the laws of this 

state, the plaintiff may make any or all persons 

who have diverted water from the same stream or 

source, parties to such action, -- and the court may 

-- in one judgment settle the relative priorities and 

rights --- of all the parties - to such action. -- When 

damages are claimed for the wrongful diversion of 

water in any such action, the same may be assessed 

and apportioned by the jury in their verdicts, and 

judgment thereon may be entered for or against one 

or more of several plaintiffs, or for or against 

one or more of several defendants, and may determine 

the ultimate rights of the parties between themselves. In any action concerning joint water 

rights, or joint rights in water ditches, unless 

partition of the same kind is asked by parties to 

the action, the court shall hear and determine such 

controversy as if the same were several as well as 

joint." (Emphasis added.) 

The District Court's decree is sufficiently definite to 

"settle the relative priorities and rights of all parties." 

The decree designates the owners of the various water rights, 

their priority dates, the amount of the awards in miners 

inches and the source of the water. This information is 

sufficient to allow a water commissioner to carry out the 

District Court's decree. 

We note that in the future, problems concerning the 

sufficiency of decrees should not arise because our new 

water laws will provide the District Court with precise 

guidelines for their decrees. For example, section 85-2-208 

MCA (formerly section 89-877, R.C.M. 1947) provides: 
"Final decree. (1) The court shall, on the 

basis of the preliminary decree and on the 

basis of any hearing that may have been held, 

enter a final decree affirming or modifying the 

preliminary decree. If no request for a hearing 

is filed within the time allowed, the preliminary 

decree automatically becomes final, and the court 

shall enter it as the final decree. 

"(2) The final decree shall establish the existing rights and priorities of the persons named 

in the petition for the source or area under 

consideration. 

"(3) The final decree shall state the findings 

of fact, along with any conclusions of law, 

upon which the existing rights and priorities 

of each person named in the decree are based. 

"(4) For each person who is found to have an 

existing right, the final decree shall state: 

" (a) the name and post-office address of the 

owner of the right; 

"(b) the amount of water, rate, and volume, 

included in the right; 

"(c) the date of priority of the right; 

"(d) the purpose for which the water included 

in the right is used; 

"(e) the place of use and a description of the 

land to which the right is appurtenant; 

"(£1 the source of the water included in the 

right; 

"(g) the place and means of diversion; 

"(h) the approximate time during which the water 

is used each year; 

"(i) any other information necessary to fully 

define the nature and extent of the right. 

" (5) The final decree in each existing right 

determination is final and conclusive as to all 

existing rights in the source or area under 

consideration. After the final decree there shall 

be no existing rights to water in the area or 

source under consideration except as stated in the 

decree. " 

With section 85-2-208 MCA as a guideline, district courts 

should have no difficulty determining what their final decrees 

must contain. The present suit, however, was determined 
under the old water laws and the decree entered by the 

District Court must be measured against water right decrees 

entered under those laws. We determine that it is sufficient. 

SUFFICIENCY -- OF THE EVIDENCE TO - SUPPORT VARIOUS AWARDS GRANTED 

-- TO THE INDIVIDUALS 

The awards granted to Holmstrom Land Company, Ward, Dean 0. 

and Virginia Thorson (Thorsons), Walter Joyce and Elmer 

Hanson have been challenged by various parties to this 

appeal. Though we must review the propriety of each of the 

challenged awards, our review of the sufficiency of the 

evidence is limited. See: Luppold v. Lewis (1977) , 

Mont. , 563 P.2d 538, 540, 34 St.Rep. 227. 

We will begin our review with the water rights granted 

to Ward. The District Court awarded Ward 1,200 miners 

inches from Sheep Creek with priority dates in 1897, 1903 

and 1906. This award is challenged by Holmstrom Land Company 

and the District. The challengers (appellants) claim Ward 

did not produce sufficient, competent evidence to support 

such a large award from Sheep Creek. We find that Ward 

produced sufficient evidence to support an award from Sheep 

Creek, but not to the extent granted by the District Court. 

Section 89-810, R.C.M. 1947 (repealed in 1973) provides: 

"Notice of appropriation. Any person hereafter 

desirinqto - appropriate -- - the waters of a river, 

or stream, ravine, coulee, spring, lake, or 

other natural source of supply concerning which 

there has not been an adjudication of the right 

to use the waters, or some part thereof, must post 

a notice in writing in a conspicuous place at the 

point of intended diversion, stating therein: 

"1. The quantity of water claimed, measured as 

hereinafter provided; 

"2. The purpose for which it is claimed and 

place of intended use; 
"3. The means of diversion, with size of flume, 

ditch, pipe, or aqueduct, by which he intends 

to divert it; 

"4. The date of appropriation; 

"5. The name of the appropriator. 

"Within twenty days after the date of appropriation the appropriator shall file with the 

county clerk of the county in which such appropriation is made a notice of appropriation, which, 

in addition to the facts required to be stated 

in the posted notice, as hereinbefore prescribed, 

shall contain the name of the stream from which 

the diversion is made, if such stream have a 

name, and if it have not, such a description of 

the stream as will identify it, and an accurate 

description of the point of diversion of such 

stream, with reference to some natural object 

or permanent monument. The notice shall be 

verified by the affidavit of the appropriator 

or some one in his behalf, which affidavit must 

state that the matters and facts contained in 

the notice are true." 

The legislature has established an incentive or reward 

for those parties who comply with the requirements of section 

89-810. Section 89-814, R.C.M. 1947 (repealed in 1973) 

provided : 

"Record prima facie evidence. The record 

provided for in sections 89-810 and 89-813, 

when duly made, shall be taken and received in 

all courts of this state as prima facie evidence 

of the statements therein contained." 

Based on this statute, a person who is claiming an 

existing water right is allowed to introduce a notice of 

section 

appropriation which has been duly filed under/89-810, R.C.M. 

1947, and said notice "shall be taken and received in all 

courts of this state as prima facie evidence of the statements 

therein." Relying on this statute, Ward introduced three 

notices of appropriation which were filed by Ward's predecessors 

in interest. These three notices established a prima facie 

case for an award of 2,500 miners inches from Sheep Creek. 

But, this prima facie showing did not completely discharge 

Ward's burden of proof. Ward still had the burden of showing 

that all the water claimed had been put to a beneficial use 

over a reasonable period of time. 
As we stated in Irion v. Hyde (1938), 107 Mont. 84, 95, 

96, 81 P.2d 353, 358, statements made in notices of appropriation 

are not completely dispositive for purposes of decreeing the 

amount of a water right: 

"The rights of the parties were not to be measured 

entirely by what they claimed in their appropriation notices. They were to be measured and 

gauged by their beneficial use over a reasonable 

period of time after they initiated the appropriations. In establishing the prior right of the 

plaintiffs consideration must be given to the 

extent and manner of their use, the character 

of their land, and the general necessities of the 

case. 'To the extent of his appropriation his 

supply will be measured by the waters naturally 

flowing in the stream and its tributaries above 

the head of his ditch, whether those waters be 

furnished by the usual rains or snows, by extraordinary rain or snowfall, or by springs or 

seeDaae x. J which directlv contribute.' -- --. (Beaverhead ,- - -- ~ ---- 

Canal Co. v. Dillon -- etc. Co., 34 Mont. 135, 85 

Pat. 880, 882.) It does not follow that plaintiffs 

were entitled to 1,000 inches because they 

designated that amount in their appropriation. 

Neither does it follow that defendants were of 

necessity entitled to the full amounts designated 

in their appropriation notices. All of these 

matters were subject to proof of use. (See Bailey 

v. - Tintinger, 45 Mont. 154, 122 Pac. 575; Peck -- v. 

Simon, 101 Mont. 12, 52 Pac. (2d) 164.)" 

The Irion decision requires that Ward, in addition to 

establishing a prima facie case through the notices, must 

also prove a "beneficial use over a reasonable period of time." 

Inherent in this burden of proof is the responsibility to prove 

the amount of water beneficially used. Ward proved a beneficial 

use and also provided the trial court with sufficient evidence 

to establish the amount of water beneficially applied. However, 

the District Court granted rights larger than Ward's evidence 

would support. 

The evidence indicates that Ward and its predecessors 

have continually used Sheep Creek to irrigate Ward's property. 

It was established that grain crops could not be grown on 

Ward's land unless water was available for irrigation purposes. 

Ward's evidence shows that approximately 735 acres are used 

now, and have in the past, been used for growing crops. This 
is sufficient evidence to establish a beneficial use over a 

reasonable period of time. See Hyde, supra. But, the 

District Court erred in determining the extent of Wards 

water rights in Sheep Creek, which were set at 1,200 miners 

inches. 

The most favorable evidence in Ward's favor came in as 

Ward's exhibit no. 94. A portion of that exhibit states: 

"The total direct diversion requirement from Sheep Creek is 

equal to 21.8 + 3.6 = 25.4 C.F.S." (cubic feet per second). 

This 25.4 C.F.S. figure converts into 1,016 miners inches of 

water. See: section 89-818, R.C.M. 1947, now section 85-2- 

103 MCA. Accordingly, the 1,200 miners inches awarded to 

Ward by the District Court must be reduced by 184 miners 

inches. 

The Ward water rights have the following priority 

dates: 1,000 miners inches with priority of September 10, 

1897; 16 miners inches with priority date of September 29, 

1903. With these modifications, the judgment in favor of 

Ward is affirmed. 

The District Court awarded Holmstrom Land Company 3,000 

miners inches from Sheep Creek with a priority date of 1935. 

Ward asserts that this award must be reduced for two reasons: 

(1) the narrowest point in Holmstrom Land Company's ditch 

will facilitate only 808 miners, inches and therefore the 

3,000 miners inches granted to Holstrom Land Company must be 

reduced to 808 miners inches; (2) alternatively, Ward asserts 

that the award to Holmstrom Land Company must be reduced 

from 3,000 miners inches to 1,400 miners inches because 

Holmstrom's diversion facility can only divert a maximum of 

1,400 miners inches. Ward relies heavily on Wheat v. Cameron 

(1922), 64 Mont. 494, 502, 216 P. 761, where we stated: "[aln 

appropriator cannot acquire a right to more water than his 

ditch will carry, and it is manifest it cannot carry a greater 

amount than that permitted by the headgate capacity." 

-10- 
The evidence supports a finding as the capacity of 

the ditch to carry 3,000 miners inches of water but does not 

support a finding that the Holmstrom Land Company diversion 

point is capable of diverting 3,000 miners inches of water. 

Therefore, it is necessary to reduce the award made to 

Holmstrom Land Company. 

Roger Perkins, an expert called by Ward, testified as 

follows: 

"Q. I am going to call your attention, Mr. Perkins, 

to Sheep Creek in the area of the by-pass, the 

Holmstrom diversion, and the Ward diversion. Did 

water going down Sheep Creek pass by the by-pass 

first as compared to the other installation. A. 

Yes. 

"Q. And from there where does it go? A. It then 

flows under the highway. There are three culverts 

under the highway. 

"Q. Would you also refer to the alternate place 

that it might flow instead of going under the highway in through the culverts? A. Yes, in times of 

heavier flows there is a rock masonry dam immediately 

adjacent to the highway where Sheep Creek can overflow 

and run down the borrow pit of the highway. 

"Q. And if it runs over that masonry dam, it eventually could get down, would it not, to the Ward 

diversion in the Mumbme ditch? A. That is correct. 

"Q. Now referring to the water that goes under 

the dam, I mean under the highway through the 

culverts, the water would flow down to where first? 

A. It would flow to the point of the Holmstrom 

diversion. 

"Q. And if it passes by there eventually where 

would it go thereafter? A. It then flows back 

under the highway and down to a point of the Mumbrue 

ditch diversion. 

"Q. It flows under the highway again, is that 

through culverts? A. That is through culverts. 

"Q. Does Holmstrom have a dam at the point of his 

diversion to raise the level of water and thus 

divert it into his ditch? A. Yes, he does. 

"Q. Would you describe that dam please? A. It's 

just a rock dam, rock randomly placed in the stream. 
"Q. Is it water-tight? A. No, it is not 

water-tight. 

"Q. Have you made any calculations as to how 

much water, by use of the facility which he has 

there now that Mr. Holmstrom could divert into 

his ditch? A. Yes, I have. 

"Q. Would you give us your calculations please? 

Do you have any documents or work papers which 

you use--you could use those and if they are 

necessary we'll introduce them. A. First of 

all, I took a look at the conditions associated 

with the maximum recorded flow in Sheep Creek, 

over 460 CFS. Of this 460 CFS approximately 

90 CFS would flow under the highway. The remainder 

would go over the rock masonry dam and down the 

borrow pit adjacent to the highway. 

"Q. That which would flow under the highway would 

go down to the Holmstrom diversion, that would go 

over the masonry dam would it not, is that correct? 

A. Right, this is correct. 

"Q. All right. A. Now of that maximum flow of 90 

CFS recorded, of the 90 CFS that could flow under 

the highway culverts during the maximum recorded 

flow of Sheep Creek, 35 CFS at a maximum could be 

diverted into the Holmstrom ditch. The remainder 

would flow over the rock dam and continue down its 

course in Sheep Creek. 

"Q. That is because of the nature of that rock dam? 

A. That is because of the nature of the rock dam." 

Robert Wertz, one of the principal owners of Holmstrom 

Land Company, was the only person to contradict Perkins' 

testimony. Wertz testified that in 1954 or 1956, he estimated 

the amount of water being diverted from Sheep Creek at the 

Holmstrom Land Company diversion, and it was his conclusion 

that the diversion point could divert at least 3,200 miners 

inches. 

The District Court, relying on Wertz's testimony, 

awarded Holmstrom Land Company 3,000 miners inches from 

Sheep Creek. Implicit in this award is a finding that the 

Holmstrom diversion point is capable of diverting 3,000 

miners inches. 

This Courts function is to review the record to determine 

whether there is substantial evidence to support the District 

Court's findings and decree. As a general rule, we accept 
all evidence in the record as true "unless that evidence is 

so inherently impossible or improbable as not to be entitled to 

belief." Strong v. Williams (1969), 154 Mont. 65, 68, 460 P.2d 

90, 92. Our review of the transcript and the exhibits convinces 

us that it is inherently improbable that the Holmstrom Land 

Company diversion point is capable of diverting 3,000 miners 

inches of water. Accordingly, we are not bound by the District 

Court finding, and are entitled to review the evidence to 

determine the proper award to be made to Holmstrom Land Company. 

Strong, supra. 

After an independent review of the transcript, we 

conclude that the District Court shculd have granted an 

award of only 1,400 miners inches (40 x 35 CFS) to Holmstrom 

Land Company. The evidence presented by Perkins establishes 

this as the upward limit of Holmstrom Land Company's water 

right. Accordingly, the District Court must reduce the 

Holmstrom Land Company award in conformity with this opinion. 

We turn now to the award granted to Dean 0. and Virginia 

Thorson. The District Court awarded the Thorsons 337 miners 

inches from Sheep Creek, with a priority date of September 

20, 1900. The court decree specified that Thorson's water 

rights were "to be diverted from [the] Mumbrue Ditch." 

The award to the Thorsons presents a somewhat unique 

question for this Court. The record indicates that Ward's 

predecessor in interest, D. P. Mumbrue, transferred and 

conveyed the right to use 337 miners inches from Sheep Creek 

to William Woolsey, Thorsons' predecessor in interest. This 

conveyance took place in 1900, and was in exchange for a 

right-of-way across Woolseys land. Thorson testified that 

neither he, nor his predecessors in interest, have ever used 

the full 337 miners inches for a beneficial purpose. 

This Court has always recognized that a valid appropriation 

may be sold separate from the land to which it is appurtenant: 
"We are committed to the rule that the appropriator of a water right does not own the water, but 

has the ownership in its use only. (Creek v. 

Bozeman Water Works Co., 15 Mont. 121, 38 PZ. 459; 

Allen v. Petrick, 69 Mont. 373, 222 Pac. 451; Verwolf 

----- v. ~owxine Irr. Co., 70 Mont. 570, 227 Pac. 68; 

Tucker v. Missoula Light & Ry. Co., 77 Mont. 91, --- 250 ~ac.1; Maclay v. Missoula Irr. Dist., 90 Mont. 

344, 3 Pac. (2d) 286;~ock Creek Ditch & Flume Co. 

- 

v. Miller, 93 Mont. 24-7-Pat. 01U74, 

L. R. 200.) Likewise it is settled by the decisions 

of this court that such a right is property which may 

be disposed of apart from the land on which it has 

been used. (Smith v. Denniff, 24 Mont. 20, 60 Pac. 

398, 81 Am. St. ~e~T408, 50 L. R. A. 737; Lensing 

v. Day & Hansen Securit Co., 67 Mont. 382, 215 

~~399; ~acla~do~laIrr. Dist . , supra. ) " 

Brennan v. Jones (1935), 101 Mont. 550, 567, 55 

P.2d 697. 

When D. P. Mumbrue traded a portion of his water right 

to Thorsons predecessor in interest, he in effect sold 337 

miners inches of his rights in Sheep Creek. But, it does not 

necessarily follow that these 337 inches are still vested in 

Thorson. Section 89-802, R.C.M. 1947, (repealed in 1973) 

provided : 

"Appropriation must be for a useful purpose-- 

abandonment. ~heppropriation must be tor some 

useful or beneficial purpose, - - and when the 

appropriator -- or his successor in interest abandons 

and ceases to use the water forsuch purpose, the 

right ceases; but questions of abandonment shall 

be questions of fact, and shall be determined as 

other questions of fact." (Emphasis added.) 

Review of the testimony convinces us that Dean 0. 

Thorson and his predecessors abandoned a large portion of the 

337 miners inches conveyed to them by D. P. Mumbrue. Thorson 

testified as follows: 

"Q. How many acres of ground do you presently 

irrigate from the Murnbrue ditch? A. At present, 

accoruing to the measurement, the Soil Conservation measurement, there are 13 acres in this 

tract here which we have irrigated continuously. 

"Q. The 13 acres you are referring to on the 

map is that 13 acres. A. This is true. 

"Q. Now the other ground -- A. There is a 

7-acre tract here which we haven't irrigated 

for the past three years. 

"Q. That is out of the Mumbrue ditch? A. Yes, 

but if it wasn't for the ditch, it would irrigate 

from Woolsey. 

"Q. A total of 20 acres, isn't it? A. Yes." 
Thorson also testified that there was no evidence that his 

predecessors in interest had irrigated any more than twenty 

acres from Sheep Creek. Seventy-five years of nonuse is 

sufficient to provide "clear evidence" of abandonment. 

This Court must therefore determine what portion of 

Thorson's water right remains intact. Taking the evidence 

in a light most favorable to Thorson, we determine that all 

but 80 miners inches were lost through abandonment. It was 

established that Thorson has used Sheep Creek water to 

benefit 20 acres of his land. Additional testimony established 

that it took up to 4 miners inches per acre to properly 

irrigate land which is similar to Thorsons. This evidence 

is sufficient to allow the granting of 80 miners inches to 

Thorsons with a priority date of September 20, 1900. Therefore, 

any award granted by the District Court in excess of 80 

miners inches must be reduced to conform with the evidence 

produced at trial. 

We turn next to the water rights granted to Walter Joyce 

and Riverside Ranch Co. (the successor to Elmer D. Hanson's 

rights). The awards to Riverside and Joyce are contained in 

the District Court's amended decree dated July 15, 1977. 

The amended decree gave Walter Joyce three water rights from 

Sheep Creek, totaling 1,000 miners inches, with priority dates 

in 1907, 1912 and 1949. The same decree awarded Riverside Ranch 

Co. the following water rights: 

Amount 

260 inches 

50 inches 

300 inches 

150 inches 

500 inches 

100 inches 

80 inches 

Source 

Little Sheep Cr. 

Coon Creek 

Sheep Creek 

Sheep Creek 

Sheep Creek 

Sheep Creek 

Horse Creek 

Prioritv Date 

Sept. 1888 

Feb. 1903 

Sept. 1, 1897 

Jan. 16, 1903 

Nov. 19, 1892 

Sept. 3, 1935 

June 10, 1928 

Ward claims that all of the water rights granted to 

Riverside and Joyce must be stricken because they are not 

supported by the evidence. Riverside and Joyce argue that 
Ward has no standing to challenge their water rights because 

their rights do not conflict with those granted to Ward, and 

alternatively, that the awards are supported by substantial 

evidence. 

We determine that Ward has no standing to challenge the 

awards from Little Sheep Creek, from Coon Creek and from Horse 

Creek, but that it does have standing to challenge the awards 

from Sheep Creek. Rule 1, M0nt.R.App.Civ.P. provides that "a 

party aggrieved may appeal from a judgment or order." To be 

aggrieved by an order or judgment a party must have an interest 

in the subject matter of the litigation which is injuriously 

affected by the judgment or order. Estate of Stoian (1960), 

138 Mont. 384, 393, 357 P.2d 41. Although Stoian was decided 

before this Court adopted the new rules of civil and appellate 

procedure, the new rules have not changed the definition of 

"aggrieved." Thus, Ward must be able to show an interest in 

the subject matter of the litigation which has been injuriously 

affected by the judgment or order. 

Ward has no interest in Little Sheep Creek, Coon Creek 

or Horse Creek; therefore, that portion of the District Court 

decree adjudicating those creeks cannot be challenged by Ward. 

On the other hand, that portion of the District Court decree 

which awards water rights from Sheep Creek to Riverside and 

Joyce is appealable by Ward. Ward, an appropriator from 

Sheep Creek, has an obvious interest in any water right granted 

from Sheep Creek. A water right which has a priority date 

earlier than Ward's water rights has a potentially injurious 

affect on Ward because the earlier appropriator could force 

Ward to forego his water until the earlier water right has been 

completely satisfied. Ward is equally interested in any 

award from Sheep Creek which has a priority date subsequent 

to Ward's priority dates, because these later rights deplete 

Sheep Creek and make it unlikely that Ward would ever be 

-16- 
able to increase his rights in Sheep Creek. Unquestionably, 

Ward has an interest in this subject matter. 

Getting to the merits of the water rights awarded to 

Riverside and Joyce, we determine that some of the awards are 

not supported by substantial evidence. Certain evidence upon 

which the District Court relied, admitted over Ward's objections, 

was clearly not admissible. 

The exhibits introduced by Riverside and Joyce to support 

their water rights were notices of appropriation filed pursuant 

to section 89-810, R.C.M. 1947, which provides: 

"Notice of appropriation. Any person hereafter 

desiring70 appropriate the waters of a river, 

or stream, ravine, coulee, spring, lake, or 

other natural source of supply concerning which 

there has not been an adjudication of the right to 

use the waters, or some part thereof, must post 

a notice in writing in a conspicuous place at the 

point of intended diversion, stating therein: 

"1. The quantity of water claimed, measured as 

hereinafter provided; 

"2. The purpose for which it is claimed and place 

of intended use; 

"3. The means of diversion, with size of flume, 

ditch, pipe, or aqueduct, by which he intends to 

divert it; 

"4. The date of appropriation; 

"5. The name of the appropriator. 

tained in the notice are true. (Emphasis added.) 

If the notice provided for in section 89-810 is duly 

made and filed, then it "shall be taken and received in all 

courts of this state as prima facie evidence of the statements 
therein contained." Section 89-814, R.C.M. 1947. This Court 

has strictly construed the provisions of section 89-814. We 

have held that any nonconformance with section 89-810 renders 

the notice of appropriation inadmissible as evidence: 

"Many years after the use of the water through 

this ditch, the then present owners of these 

rights caused to be recorded a notice of their 

water rights.. . . It is argued that these notices 

were evidence, prima facie, of the extent of these 

rights. The notices did not comply with the statute 

as to the time of record (secs. 7102-7104 Rev. Codes). 

If the statute was complied with, such notices were 

prima facie evidence. (Wills v. Mones, 100 

~ont. 514, 50 P.2d 862.) Since these notices 

-- did not comply with -- the statute --- as to the 

time of their recording, they are of no 

evidesiary value in provlng thea=unf or 

--- date of an appropriation. (Peck v. ~imoc 101 

Mont. 12, 52 P.2d 164.) " (Emphasis added.) 

Galahan et al. v. Lewis et al. (1937), 105 Mont. 

294, 298, 299, 72 P.2d 1018. 

This Court reaffirmed Galahan in Shammel v. Vogl (1964), 

144 Mont. 354, 396 P.2d 103. Under Galahan and Shammel, a 

party cannot rely on defective notices of appropriation to 

prove the extent of his water rights or their priority 

dates. 

In the present case, Ward properly objected to the 

introduction of many of Riverside's and Joyce's notices of 

appropriation because they were not filed within twenty days 

of the date of appropriation. The notice of appropriation 

contained in exhibit nos. 1, 3, 29, 30 and 36 was filed more 

than 20 days after the appropriator took water from Sheep 

Creek. This being so, each cannot be used as evidence to 

establish the amount or date of any water right. Without 

these notices, there is insufficient evidence to support 

several of the awards made to Riverside and Joyce. We find 

the following awards are not supported by the evidence and 

must be stricken: 

INADMISSIBLE PARTY AWARD SOURCE 

EXHIBIT NO. 

DATE 

Riverside 

rfiPafgf s ide 

Riverside 150 in. sheep Creek Jan. 16, 1903 

Riverside 100 in. Sheep Creek Sept. 31, 1935 
PROPRIETY -- OF THE AWARDS -- TO THE DISTRICT AND DEPARTMENT 

We turn now to the portion of the District Court decree 

which established that the District had an existing right to 

3,000 miners inches of Sheep Creek. The District is, and at 

all times relevant hereto was, a corporation incorporated 

pursuant to the Montana Water District Act. The District 

plans to divert all available, excess water from Sheep Creek 

and transport it through Holmstrom's irrigation ditch to a 

multi-purpose reservoir in the Newlan Creek Watershed. 

There, the water will be stored until it can be beneficially 

used by the District or its customers. It is important to 

note that the District has not actually diverted any water from 

Sheep Creek; the District is only a prospective user of 

Sheep Creek. We must determine whether the District complied 

with the applicable statutes to establish its rights to future 

use of the excess water. 

The District contends that its 3,000 miners inches right 

can be sustained under two alternative statutes. First, 

that it obtained an "existing right" in Sheep Creek on or 

about June 29, 1973, when the Resources Board assigned its 

rights in Sheep Creek to the District. The ResourcecBoard's 

rights in Sheep Creek stemmed from a July 25, 1969 filing 

made by the ResourcgBoard under section 89-121, R.C.M. 

1947. The District contends that the written assignment, 

dated June 29, 1973, was effective to transfer the Resources 

Board's existing rights to "all of the inappropriated water 

of Sheep Creek and its tributaries" to the District. 

The District's alternate claim, which was permissively 

raised during trial, is predicated on a section 89-810 filing 

made by the District on July 11, 1969. In the documents filed 

with the Meagher County Clerk, the District claimed an existing 

right to 75 cubic feet (3,000 miners inches) from Sheep Creek. 
The only party challenging the award made to the District 

is Ward. Ward contends that the District does not have - 

any 

existing rights in Sheep Creek and that the District Court's 

findings to the contrary must be reversed. 

We shall begin by discussing the District's rights under 

section 89-121, R.C.M. 1947 (since repealed). Section 89-121 

provided : 

"Appropriation - of waters--recording of notice-- 

-- date of right. In acquiring the rights and 

administering the terms of this act herein 

prescribed and established, the board shall 

not be limited to the terms of the statutes 

of the state of Montana relating to water 

rights heretofore enacted; but, in addition 

thereto, may initiate a right to the waters 

of this state by executing a declaration in 

writing of the intention to store, divert or 

control the unappropriated waters of a particular body, stream or source, designating and 

describing in general terms such waters claimed, 

means of appropriation and location of use, and 

cause said notice to be filed in the office of 

the county clerk and recorder of the county where 

the major portion of the means of diversion or 

control will be located, which right shall vest 

in such board on the date of the filing of such 

declaration. It shall be the duty of the county 

clerk and recorder of each county of the state 

of Montana on presentation to receive, record and 

index such declaration, without charge, in the 

manner prescribed by law relating to notice of water 

rights. 

"A certified copy of the record of said declaration 

shall be received as competent evidence in all 

courts and deemed to be prima facie proof of all 

matters therein recited. 

"The priority of right shall -- date and continue 

----- 

from the time of such filing or recording, provided 

the means of actual appropriation shall be comiiEiicm bytual work -- ot constructioni~i~ur 

(4) years ---- from the date of original recording. 

Change in means or place of diversion or control 

shall not affect the right of priority, if others 

are not thereby injured." 

Ward advances three arguments to support its claim that the 

District did not obtain any existing rights in Sheep Creek by 

the June 29, 1973 assignment. First, that the "Declaration 

of Intention to Store, Control and Divert Water" which was 

Board 

filed by the Resources/ on July 25, 1969, was invalid because 

it was executed by an agent of the ResourcesBoard rather 
than by the chairman of the ResourceSBoard. Ward claims 

execution of the documents by an agent was expressly prohibited 

by section 89-135, R.C.M. 1947. Next, Ward argues that the 

ResourcesBoard had no authority to assign its existing 

rights in Sheep Creek. Ward argues that any assignment by 

the ResourcesBoard would be an impermissible delegation of 

its rights and authority. Finally, Ward argues that the 

District and the ResourcesBoard do not have any existing 

rights in Sheep Creek because they failed to commence actual 

work -- of construction on - - a means - of diversion within four 

2.C.M. 1947 

years from the date of the original section 89-12l/recording 

We find that Wards third argument is dispositive for 

purposes of interpreting section 89-121. Section 89-121 

clearly states that "the means of actual appropriation shall 

be commenced by actual work of construction within four (4) 

years from the date of original recording." In this case, 

the original recording took place on July 25, 1969. There 

is no testimony in the record which establishes that any 

actual construction took place on or before July 25, 1973. 

Accordingly, the District cannot claim any existing rights 

under section 89-121, R.C.M. 1947. Any findings or conclusions 

inconsistent with this opinion must be stricken. 

However the District also claims water rights by virtue 

of section 89-810 et seq., R.C.M. 1947. Ward concedes that 

the District properly filed its notice under section 89-810, 

R.C.M. 1947. The chief controversy is whether the District 

complied with the terms of section 89-811, R.C.M. 1947 

(since repealed), which provided: 

"Diligence in appropriating. Within forty days 

after posting such notice, the appropriator must 

proceed to prosecute the excavation or construction 

of the work by which the water appropriated is 

to be diverted, and must prosecute the same with 
reasonable diligence to completion. If the ditch or 

flume, when constructed, is inadequate to convey 

the amount of water claimed in the notice aforesaid, 

the excess claimed above the capacity of the ditch 

or flume shall be subject to appropriation by any 

other person, in accordance with the provisions of 

this chapter." 

We interpreted section 89-811 in the recent case of the 

Department of Natural Resources v. Intake Water Co. (1976), 

416, 

171 ~ont.1558 P.2d 1110. In the Intake decision, we clarified 

the requirements and purpose of section 89-811: 

"The purpose of section 89-811 is to require 

reasonable diligence in completing the appropriation 

or forfeiture of the priority of the appropriation 

as of the day of posting the notice of appropriation. 

What constitutes reasonable diligence must be 

determined on an ad hoc, case-by-case basis. The 

law in this area is summarized by a leading authority, 

Clark, Waters & Water Rights, Vol. 6, § 514.1, pp. 

308, 309, in this language: 

"What constitutes due diligence is a question of fact 

to be determined by the court in each case. Diligence 

does not require unusual or extraordinary effort, but 

it does require a steady application of effort-that 

effort that is usual, ordinary and reasonable under 

the circumstances.* * * So long as the applicant 

prosecutes the construction of works in good faith 

with a steady effort, he should be held to have 

prosecuted with diligence." Intake, 171 Mont. at 434. 

"We hold therefore that the meaning of the words ' 

* * * proceed to prosecute the excavation or construction of the work by which the water appropriated 

is to be diverted * * *' is not confined to the 

commencement of actual on-site excavation or construction 

of the diversion works, but that it encompasses the 

steady on-going effort in good faith by Intake to 

prosecute the construction of the project under the 

circumstances disclosed here." Intake, 171 Mont. at 

436. 

In the present case the District Court held that the 

District had fully complied with the specifications contained 

in section 89-811, R.C.M. 1947: 
"That within the fort days following the District's 

postin-recordof its said ~otiFof Water - - a --- - -- 

Kight, work ----- done by and on behalf -- of the zstrict 

consisting of damsite investigations, engineering 

decisions bygeologists, - and project plan review 

and recommendations federal agencies constituted 

- a sufficient commencement of -- the construction of 

-- the work by which Sheep Creek waters were to be 

approprlatedanddivertedcomply withthe -- requirements of Section 89-811 R.C.M., 1947. That the actions 

by andon behalf of the District thereafter in making 

surveys and geologic investigations, completing plans, 

entering into cooperative agreements, soil testing, 

core drilling, land and easement acquisition and 

obtaining financing and entering into a contract for 

the dam construction, which continued through the 

dates of trial of this action, constitutes prosecution 

of the construction of the project with reasonable 

diligence sufficient to comply with the provisions of 

Section 89-811 R.C.M., 1947. 

"That a letter was written to Montana Water Resources 

Board dated August 11, 1969, pointing out conflict 

between the ~istrict' s 89-811- filing- -- and the Board's 

89-121 filing, requesting the Board's release of its 

filing to the District. 

"That the Montana Water Resources Board replied by 

letter dated August 15, 1969, agreeing to release 

the Board's filing to the District when 'the project 

reaches the construction stage.' 

"That 

ments 

Ricrht 

the District - fullv com~lied with 

in posting and filing its Notice 

Appropriation on - July -- 11, 1969. 

legal requireof Water 

"That the District proceeded to prosecute the excavation 

or construction of the diversion works within forty 

(40) days after July 11, 1969, pursuant to Section 

89-811 R.C.M., 1947." 

It is, of course, this Court's duty to determine if 

these findings are supported by substantial evidence and in 

this regard the evidence must be viewed in the light most 

favorable to the prevailing party in the District Court. It 

is for the District Court to determine credibility and the 

weight of the testimony. 

The record discloses that the following activity took 

place during the first forty days following the posting of 

the District's notice of appropriation: 
"(1) The District filed a copy of their notice 

of appropriation with the Meagher County Clerk. 

"(2) Raymond Smith, a design engineer for the 

Soil Conservation Service (SCS) testified that 

his agency was actively involved in the Newlan 

Creek project during the first forty days after 

the District posted its notice. 

" (3) Frank Faranchek testified that the watershed 

economist completed an economic report on the 

overall project during the first forty days after 

the District's posting. 

"(4) Mr. Faranchek testified that engineering 

reports reviewing the work done on the Newlan 

Creek Watershed were submitted to his office on 

July 11, 1969. Farancheck indicated that these 

reports refined some of the cost estimates and 

the technical data prepared for the project. 

" (5) Mr. Faranchek also testified that data 

was collected on the recent sales prices of 

property around and near the Newlan Creek Reservoir. 

This data was collected so the District might have 

some working knowledge of the land prices which 

would be involved in future condemnation or purchase 

transactions. 

"(6) It was also established that the District and 

the Montana Department of Natural Resources were 

corresponding during the first forty days in an 

effort to clarify the District's rights vis a vis 

the Department ' s. " 

We agree that the evidence produced by the District is 

less convincing than the evidence before this Court in the 

Intake case. But Intake also establishes that "what constitutes 

reasonable diligence must be determined on an ad hoc, caseby-case basis." Intake at 434. 

We determine that the evidence is sufficient to support 

the District Court's finding that the District had proceeded 

to prosecute the excavation or construction of the work within 

the first forty days of posting its notice of appropriation. 

Therefore, the 3,000 miners inch existing right was properly 

awarded to the District and is hereby affirmed. 

We will now consider the "uncertain" right granted to the 

Resources Board. At the outset we would note that the Resources 
Board, like the District, can only claim an "existing right" 

to Sheep Creek. An existing right is defined as: "a right 

to the use of water which would be protected under the law 

as it existed prior to July 1, 1973." Section 89-867(1), 

R.C.M. 1947, now section 85-2-102(7) MCA. Section 36- 

2.14J (1) -S1400 M.A.C., further provides: " (e) 'Existing 

right', in addition to the definition given the term by 

section 89-867(4) of the Act, includes any appropriation of 

water commenced prior to July 1, 1973, - if completed according 

----- to the law as it existed when -- the appropriation was begun." 

Since the Resources Board filed its notice of appropriation 

on June 23, 1973, an existing right in Sheep Creek was 

acquired on that date. However, under the law their right 

would expire unless "the means of actual appropriation . . . 

[was] commenced by actual work of construction within four 

(4) years from the date of original recording." Section 89- 

121, R.C.M. 1947. 

When the District Court entered its findings (February 

3, 1977), the Resources Board had until June 23, 1977 to 

begin work to comply with the statute. Accordingly, the 

District Court was correct in awarding the ResourcesBoard an 

uncertain right in Sheep Creek. Events subsequent to the 

District Courts findings must be used to determine whether 

the Resourcg,Board's existing right has become vested or has 

expired. All we decide today is that the District Court did 

Board 

not err in awarding the Resources/ an uncertain right on 

February 3, 1977. 

SUFFICIENCY -- OF THE EVIDENCE TO - SUPPORT INJUNCTIVE RELIEF 

The final major issue is the District Court's refusal 

to enjoin Ward's use of the Mumbrue Bypass. As previously 

stated, the Mumbrue Bypass was built by Ward in 1972; the 

bypass allows Ward to divert Sheep Creek water before it 

passes Holmstrom's diversion point. The original complaint 

-25- 
filed by Holmstrom alleged that the llumbrue Bypass injured 

Holmstrom because it lowers the water level at Holmstrom's 

diversion point, and thereby renders it less usable. Holmstrom's 

complaint asked the District Court to permanently enjoin 

Ward's use of the Murnbrue Bypass. Holmstrom now claims that 

the District Court erred when it refused to enjoin Wards use 

of the Mumbrue Bypass. 

This issue is controlled by section 89-803, R.C.M. 1947 

(not recodified) which provided: 

"Point of diversion may -- be changed--change of 

use. ~he person entitled to the use of water 

may change the place of diversion, if others are 

not thereby injured, and may extend the ditch, 

flume, pipe, or aqueduct, by which the diversion 

is made, to any place other than where the first 

use was made, and may use the water for other 

purposes than that for which it was originally 

appropriated." 

This Court long ago established that the burden is on 

the party claiming to be injured to plead and prove that the 

change in location will adversely affect him: 

"While, of course, one may not change the point of 

diversion any more than the place of use or the 

character of use, to the prejudice of other 

appropriators (Rev. Codes, sec. 4842), it does 

not follow that any such change is to be taken, in 

limine, as prejudicial. -- On the contrary, - the 

burden --- is on the party claiming -- to be prejudiced 

-- by such change, to allege and prove the facts. 

(Hansen v. ~arsen, 44 Mont. 350, 120 Pac. 229.)" 

Lokawich v. City of Helena (1912), 46 Mont. 575, 

Although Holrnstrom Land Company properly raised the 

diversion issue in its original complaint, Holmstrom failed 

to prove injury during the course of the trial. At most, 

Holmstrom's testimony indicated that their "rock diversion" 

might need to be revamped if the bypass was used; however, 

this testimony does not show injury sufficient to warrant 

injunctive relief. Accordingly, the District Court did not 

err when it refused to enjoin the use of the Mumbrue Bypass. 
The briefs of the parties have brought a number of 

additional, minor issues to our attention. We have reviewed 

these issues and find them to be without merit. 

The judgment of the District Court must be modified to 

conform to this opinion. As so modified, the judgment is 

affirmed. 

Jus 

We Concur: 

die£ Justice 

Justices 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13848 

HOLMSTROM LAND CO., INC., 

a Montana corporation, 

Plaintiff, Respondent and 

Cross-Appellant, 

MEAGHER COUNTY NEWLAN 

CREEK WATER DISTRICT, 

Defendant and Appellant, 

and 

FEN 2 1,980 

WARD PAPER BOX CO-I et al-I 

Defendants, Respondents and of. SUPREME COURT cross-~ppellants. STATE OF MONTANA 

ORDER ON PETITION FOR REHEARING 

In the petitions for rehearing, we are reminded that 

even though there has been no compliance with the statutes 

regulating appropriations by record, where water has actually 

been diverted from streams and applied for beneficial use, 

a right to the use of that water for beneficial use is established. 

In discussing the effect of recording statutes in water 

appropriation matters, this Court said in Murray v. Tingley 

(1897), 20 Mont. 260, 268, 269: 

"Questions of priority, however, as well as of the 

original capacity, etc., of ditches, depended chiefly 

on oral testimony,--on the memory of eyewitnesses, 

often at fault through lapse of time. Confusion and 

insecurity to vested rights resulted. To obviate this 

as much as possible, the statute was enacted. It 

required a notice of location to be posted at the 

point of diversion, to apprise others who contemplated 

the acquisition of water rights from the same stream 

that the locator had taken his initial step to 

appropriate water. It required a recorded notice of 

appropriation, in order that a record might be supplied, 

giving the history in detail of each appropriation, which 

would inure to the benefit of their successors in 
interest, as well as to the appropriator's, and 

not leave them dependent upon the mere memory 

of witnesses when conflicts should arise. In 

enacting this law the legislature did not contemplate that one who failed to comply with the terms 

of the statute, but who, in the absence of any 

conflicting adverse right, had nevertheless actually 

diverted water and put it to a beneficial use, 

should acquire no title thereby. The essence of an 

appropriation--a completed ditch, actually diverting 

water, and putting it to a beneficial use--remained 

the same as it had been before. The object of the 

statute was to preserve evidence of rights, and also 

to regulate the doctrine of relation back. It follows 

that the statute controls this doctrine of relation 

back, and that one who seeks to avail himself of it 

since the passage of this act can only do so by a 

compliance with the statutory requirements. 

"Again, we are satisfied that the legislature did 

not intend that one who failed to comply with the 

statute, but who had nevertheless actually diverted 

water, could be deprived of it by another who complies with the statute at a time subsequent to the 

former's completed diversion. (Citing cases.)" 

As to Elmer Hanson (Riverside Ranch), and Walter Joyce, 

although their written and posted notices are deficient, and 

therefore not admissible in evidence to establish the dates 

thereby of their beneficial rights in the waters in Sheep 

Creek, the evidence is uncontroverted that each of these 

parties did actually divert..from Sheep Creek, and use beneficially 

upon their lands those waters. Their lands are downstream 

from the other claimants, and their rights would be junior 

to any of the other claimants, so therefore, there are no 

adverse interests claiming this same water now being beneficially 

used by Riverside Ranch and by Joyce. The evidence is further 

clear that since 1949, the appropriation of waters for these 

purposes by Hanson (Riverside Ranch) and Joyce has been 

ongoing. Therefore, even though their evidence of earlier 

diversion through the recorded notices is not admissible, 

under the other evidence in this case, they have established a 

beneficial use of waters from Sheep Creek at least since 

1949. In the case of Riverside Ranch, this amounts to 1,050 

inches and in the case of Walter Joyce, an additional 200 

inches out of Sheep Creek. 
Our original opinion therefore, of August 2, 1979 in 

this case is modified to allow out of Sheep Creek 1,050 

inches to Riverside Ranch and an additional 200 miners inches 

out of Sheep Creek to Walter Joyce, each beginning June 1, 

1949 which date is probably the latest first date for the 

irrigating season for that year. As so modified, our opinion 

of August 2, 1979 is otherwise confirmed, and the petitions 

for rehearing are otherwise denied. 

DATED this day of February, 1980. 

~Chief Justice 

y--L@2Justices