Weinheimer Ranch, Inc. v. Pospisil

Weinheimer Ranch, Inc. v. Pospisil, 299 P.3d 327 (Mont. 2013) (holding water court made no administrative or judicial error in denying, for lack of sufficient evidence, a water right holder’s motion to amend his water right to an earlier priority date).

In 1991 Weinheimer Ranch, Inc. (“Ranch”) acquired a sixty acre-foot per year water right from Francis Weinheimer.  Francis acquired the water right from his father Franz Weinheimer, who originally filed a notice of appropriation for the water right in 1971.  In 1984 the Montana Water Court (“water court”) issued a Temporary Preliminary Decree (“decree”) for the Judith Basin River that provided a 1900 priority date and a historical diversion point in Section Four for the Ranch’s water right.  The decree also provided an 1897 priority date for George Pospisil’s (“Pospisil”) senior water right.  Pospisil owns land adjacent to the Ranch.  According to the decree, the point of diversion for both water rights was Odenwald Creek.

In 2002, after Pospisil placed a call on Odenwald Coulee, the Ranch filed a motion with the water court to amend its water right’s historical right, priority date, and source.  The Ranch filed a supplemental motion in 2003.  Pospisil thereafter filed an objection to the Ranch’s proposed amendment of the historical right and priority date but did not contest that, due to a past clerical error, the listed source should be amended from Odenwald Creek to Odenwald Coulee.  Before the water court considered the motion, Senior Water Master Kathryn Lambert (“water master”) held a hearing on the motion.

The Ranch relied on two documents, both discovered in 2002, to support its motion to amend the water right.  The first document was a Notice of Appropriation of Water Right (“1896 notice”) filed by Adrian Odenwald (“Odenwald”), the Ranch’s predecessor in interest.  Among other things, the 1896 notice listed a priority date of 1882, the diversion point as Section Nine, and an attestation by Odenwald that the information listed on the 1896 notice was true and correct.  The second document was a 1969 Montana Water Resources Survey of Fergus County (“survey”).  The survey stated Odenwald filed the 1896 notice for a water right with an 1882 priority date.  In addition, the survey separately described the Ranch’s current water right. Weinheimer also testified, and Pospisil conceded, that since the 1930s no ditch existed from Section Nine to Section Four.

After consideration, the water master recommended the water court deny the Ranch’s motion due to insufficient evidence.  The water court accepted the water master’s recommendation and denied the Ranch’s motion to amend its historical right and priority date.  The water court further ruled that the water right described in the 1896 notice and mentioned in the survey was abandoned because the Ranch, or its predecessor in interest, failed to properly file a claim on the water right as required by state law.  Finally, the water court amended the water master’s ruling that no surface water existed in Section Nine since 1882, ruling instead that the evidence only supported a finding that no surface water existed since the 1930’s.

The Montana Supreme Court (“Court”) considered two issues on appeal.  First, the Court considered whether the factual record mandated an inference that the 1896 notice mistakenly listed Section Nine instead of Section Four as the point of diversion for the Ranch’s water right.  The Ranch argued that Odenwald never owned land in Section Nine and that Odenwald actually diverted the water only a quarter mile from the diversion point detailed in the 1896 notice, suggesting a mistaken point of diversion listing.  But because Odenwald attested to the validity of the 1896 notice, because no party brought up the accuracy of the 1896 notice for more than a century, and because the Ranch and its predecessors already filed claims with a 1900 priority date, the Court held the water master reasonably declined to infer mistake in the listed point of diversion.

Second, the Court analyzed whether the water court made a clear error in its findings of fact.  The Ranch first argued that because Section Nine did not contain a water source to appropriate and because Odenwald never owned land in Section Nine, the 1896 Notice mistakenly listed the diversion point as Section Nine and should have listed Section Four.  The Court noted it was not clear that no water flowed in Section Nine, but reasoned that even if it were, that fact would not prove Odenwald intended to appropriate water from Section Four.  Additionally, the Court noted it is common for a water right to originate outside the physical boundaries of a water right holder’s property, so not owning property at the diversion point did not prove mistake in the 1896 Notice.  The Ranch then argued that the two water rights mentioned in the survey—the Ranch’s current water right and the water right described in the 1896 notice—actually represented the same water right.  The Court stated that another reasonable interpretation of the survey was that the two water rights were distinct.  The Court held that the Ranch failed to prove error on the part of the water court.

Accordingly, the Court affirmed the water court’s denial of the Ranch’s motion to amend its water right.

 

The title picture is of a Montana ranch and is licensed under the Creative Commons Attribution 2.0 Generic License by Tony Hisgett, who does not in any way endorse this blog.