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Opinion No. 298 Water Rights-State Lands-Easements Opinion No. 299

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Opinion No. 298 Water Rights-State Lands-Easements Opinion No. 299 202 OPI~IOXS OF THE ATTORXEY GE~ERAL to put a check upon public officers in tana give a person the right to go on the expenditure of moneys authorized the public domain for the purpose of under the general laws, and in the col­ appropriating water flowing through lection and expenditure of which the the same or ha ,-ing its source therein. taxpayers have no direct vote. The diversion of such water may be In our opinion the legal voters of made by a ditch, flume, pipe or aque· the district, who are taxpaying free­ duct. (Section 7093 et seq., Re,ised holders therein, have the power to au­ Codes 1921; Smith v. Denniff, 24 Mont. thorize a le,-y to produce amounts in 20; Prentice v. McKay, supra.) excess of the maximums specified in The first appropriator on a stream or Section 5, Chapter 178, J~a ws of 193:3. >=pring is entitled, b~' drtue of his prior right, to the use and enjoyment Opinion No. 298 of the water to the full extent of his original appropriation, even when this Water Rights-State Lands-Easements includes all of the water of the stream or spring, and this right continues so HELD: A water right may be per­ long as he applies all of the water fected when water from springs has appropriated to some useful or hene­ been appropriated on state land and ficial purpose. (Mettler v. Ames Realty com-eyed across said land through a Co., 61 Mont. 152; 2 Kinney on Irri­ pipe line without securing a right o~ gation and Water Rights, sec. 781; 40 way in the form of an easement from Cyc. 714-718). The legislative declara­ the state. tion is that, as between appropriators. he who is first in time is first in right. August 10, 1933. (Section 7098, Revised Codes, 1921). You ask "whether or not a water If it be so tha t the th ree persons right is perfected when water in the mentioned above have ,-alidly appro­ form of springs has been appropriated priated all of the water which flows on sta te land and conveyed across said from the four springs in question, then land through a pipe line without secur­ the fact that the permitees are without ing a right of way in the form of an any water is of no consequence in the easement from the state." case. In Montana, moreo'-er, no pref­ It appears from the report of the erence right is I,riven to a junior ap­ state forest warden attached to your propriator for the use of water for do­ letter that three persons who own and mestic purposes. occupy tracts adjoining state land are obtaining their supplies of water thru It may be well to add that a person pipes which tap four springs located can acquire a water right by adverse on said state land. 'It further appears u~er as against the state. (State Y. that the predecessors in interest of at Qua ntic, 37 Mont. 32). least two of these occupiers followed the provisions of Sections 7100 and Opinion No. 299 7101, Revised Codes 1921, in appropri­ a ting or attempting to appropriate the SchooIs-SchooI Districts-Indebted­ waters of three of the springs. The re­ ness, Limitation of. port also discloses that two permitees HELD: A school district, with or who occupy small tracts of said state without a favorable vote of the tax­ land have no water available for do­ payers concerned, may not incur in­ mestic use unless permitted to take debtedness, bonded or otherwise, which water from one or another or all of in the aggregate exceeds 3% of the ~aid springs. value of the taxable property in such The rule is universally recognized school district. that in order to acquire a water right on ,the private land of another, one must acquire an easement in such land. August 11, 1933. An easement can be acquired only by On July 17, 1933, the Board of Trus­ grant from the owner, by condemna­ tees of School District No.1 of Lewis tion proceedings or by adverse user. and Clark County requested your opin­ (Prentice v. McKay, 38 Mont. 114). ion on the following questions, to-wit: This rule, however, has no applicll­ ;'1. Under an act of congress known tion to public land. The laws of Mon- as the Industrial Hecovery Act, the .
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