Marks v. 71 Ranch, LP, 334 P.3d 373 (Mont. 2014) (holding that: (i) water commissioner records of low water supply levels had little probative value regarding whether beneficial use; (ii) testimony that different portions of a creek constituted separate water sources was insufficient to overcome a prior court decree describing the creek as a single, unified system; and (iii) standing alone, water commissioner records of insufficient delivery did not prove abandonment.
In 1940, Wellington Rankin acquired a decree (“Rankin Decree”) to four water rights (the “creek rights”) located on Confederate Creek. Rankin’s rights had a priority date of 1866 and a combined flow rate of 385 miner’s inches. The Rankin Decree described Confederate Creek as a single, unified water system. It also identified a point of diversion and place of use located on the lower part of the creek (“downstream location”). In 1950, Rankin sold the property surrounding the downstream location. However, Rankin properly severed and maintained ownership of the creek rights. In 1982, Louise R. Galt, Rankin’s successor in interest and 71 Ranch’s predecessor in interest, filed Statements of Claim for the creek rights. The Statements of Claim described a new point of diversion and place of use roughly three miles upstream from the original diversion point (“upstream location”). Objector and appellant Donald C. Marks owned property and water rights between the claimed upstream and old downstream locations. Marks’ rights were junior to the creek rights.
Marks filed an objection to the creek rights’ new place of use and point of diversion. The Water Master dismissed Marks’ objection in 2002 and the Water Court affirmed the dismissal. Both determined that Marks had failed to rebut the prima facie evidence that Galt’s claims properly defined the point of diversion and place of use for the creek rights at the upstream location. Marks’ appeal thus came to the Supreme Court of Montana (“Court”) to consider whether the Water Court erred in its determination. In Montana, prior to July 1, 1973, an appropriator could change the point of diversion and place of use of its water right, as long as the appropriator beneficially used the right at the new place of use and did not injure any other appropriators. Under Montana law, a claim of right is prima facie proof of its content and places the burden of proof on the claim’s objector to prove, by a preponderance of the evidence, that the original claim misrepresented the actual beneficial use of the water right prior to July 1, 1973.
Thus, Marks had to prove that the information in Galt’s Statement of Claim was inaccurate. Marks offered three theories: (1) the creek rights were not beneficially used at the upstream location prior to July 1, 1973; (2) the upper and lower portion of Confederate Creek were separate water sources; and (3) Rankin and Galt had abandoned the water rights.
To support his first argument, Marks provided records indicating that on certain days, water flow was less than the Rankin Decree dictated. Marks used this information to argue that, if Rankin and Galt had beneficially used their creek rights, more water would have flowed to the upstream location of the creek rights. The Water Master observed that the records did not indicate the total water flow, made no mention of diversions during high flows, did not describe stream flow conditions, and did not disclose whether anyone ever requested more water. The Water Master also noted that water commissioners were generally only appointed in times of water shortage. The Court concluded that given these facts, it was reasonable to assume that Marks’ records only reflected measurements of low flow years. Given the lack of any data for several multi-year periods, the Court found that the Water Master did not err in determining these records provided minimal probative value regarding the question of beneficial use during the disputed decades.
The Court then addressed Marks’ second argument. Marks argued that there were separate water sources for the upper and lower portions of the creek. In support of his claim, Marks testified as to the division of the two portions, and he introduced the testimony of the 2002 water commissioner. However, the commissioner’s testimony conflicted somewhat with Marks’ own testimony. Specifically, Marks claimed one particular area would dry up in the summer months while the water commissioner conceded that water did flow past the area during the spring flood season. The Court considered the conflicting testimonies and noted that Marks failed to present any evidence from anyone familiar with the conditions of the Creek prior to 1973. The Court further noted that the Rankin Decree described the creek as a single, unified water system. Emphasizing that a “decree of a court stands as an absolute finality” and that Marks had failed to provide reliable evidence to rebut the decree, the Court affirmed the Water Master’s findings that the two portions of the creek did not constitute separate sources.
Finally, the Court addressed Marks’ abandonment argument. To support this contention, Marks relied on the same evidence he had provided for his first assertion. Specifically, he used the water commissioner’s reports of insufficient water flow to claim that Rankin and Galt failed to beneficially use their rights. From this argument, Marks drew the conclusion that Rankin and Galt had effectively abandoned their rights by allowing them to lie dormant for over twenty years. Relying on the previous decision that standing alone, the water commissioner records failed to prove non-use, the Court determined that Marks’ argument for abandonment failed.
Accordingly, the Court affirmed the Water Court’s dismissal of Marks’ objection.
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