Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (In-state only) (406) 586-4364 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) * * * * * * * * * * * * * * * * * * * *

IN THE MATTER OF THE ADJUDICATION OF CASE 43B-443 THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) 433-W-194858-00 WITHIN THE YELLOWSTONE RIVER ABOVE AND ) 43B-W-195014-00 INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) tra gsg BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. ) DEC 2 2 1994

CLAIMANT: Mary Meagher WtM pre66ri s D. Michael Murphy

OBJECTOR: D. Michael Murphy, Mary Meagher

ORDER ADOPTING MASTER'S REPORT Pursuant to Montana Code Annotated, §85-2-233(4), the above entitled case was assigned to Water Master Kathryn Lambert. On November 15, 1994 the Water Master issued a report containing Findings of Fact and Conclusions of Law. Copies of the report were served upon the parties. Over ten (10) days have elapsed since service, and no objections to the Findings and Conclusions have been filed by any party. The Court has reviewed carefully the Water Master's Findings and Conclusions. Pursuant to Rule 53(e), Montana Rules of Civil Procedure, the Court adopts the Master's Report and ORDERS that changes recommended in the Master's Conclusions of Law be made to the abstract of claim(s) listed above as they appear in the Temporary Preliminary Decree of the Yellowstone Division Yellowstone River Above And Including Bridger Creek Basin (43B). DATED this 07 day of scr....R__ , 1994.

k.,4et_ C. Bruce Loble Chief Water Judge CERTIFICATE OF SERVICE I, Ann L. Harms, Deputy Clerk of Court of the Montana

Water Court, hereby certify that a true and correct copy of the above ORDER ADOPTING MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail.

Mary Meagher D. Michael Murphy P. 0. Box 126 5505 - 33rd St., S.E. Yellowstone National Park, WY 89120 Grand Rapids, MI 49508 David W. DePuy, Attorney Robert L. Jovick, Attorney P. O. Box 487 P. O. Box 1245 Livingston, MT 59047-0487 Livingston, MT 59047-1245 DATED this aAday of 1,4)..LA, 1994.

CkAA 4,,_ *cILJIAm4L..) Ann L. Harms Deputy Clerk IN THE WATER COURT OF THE STATE OF MONTANA * * * * * * * * * * * * * * * * * * * *

NOTICE OF FILING OF MASTER'S REPORT iv f',Xn\ FA71(1' tka Vg,; TO: ALL PARTIES N OV 1 1994 RE: 43B-443 pa/414m Haer° Ccurt

This is to provide you with Notice that the Water Master has filed a Master's Report (Findings of Fact and Conclusions of

Law) with the Clerk of the Water Court for the water right(s) listed above. A copy of the Master's Report is enclosed with this Notice.

Please review this Master's Report carefully. If there are any corrections or changes that need to be made, you have 10 days from service of this Notice to file a written objection. You must mail a copy of your written oblection to all the other parties who have been involved in this proceeding and file a certificate of such mailing with the Water Court. (This procedure is required by Rule 1.11. Water Right Claims Examination Rules and by Rules 5 and 53 of the Montana Rules of Civil Procedure.)

DATED this 15th day of Novmeber, 1994.

LORI M. BURNHAM Clerk of Court Montana Water Court P. 0. Box 879 Bozeman, MT 59771-0879 (406) 586-4364 1-800-624-3270 (in Montana) Montana Water Court PO Box 879 Bozeman, MT 59771-0879 1-800-624-3270 (1n-state only) (406) 586-4364 IN THE WATER COURT OF THE STATE OF MONTANA YELLOWSTONE DIVISION YELLOWSTONE RIVER ABOVE AND INCLUDING BRIDGER CREEK BASIN (43B) * * * * * * * * * * * * * * * * * * * *

IN THE MATTER OF THE ADJUDICATION OF CASE 43B-443 THE EXISTING RIGHTS TO THE USE OF ALL ) THE WATER, BOTH SURFACE AND UNDERGROUND,) 43B-W-194858-00 WITHIN THE YELLOWSTONE RIVER ABOVE AND ) 43B-W-195014-00 INCLUDING ALL TRIBUTARIES OF THE YELLOWSTONE RIVER ABOVE AND INCLUDING ) BRIDGER CREEK IN GALLATIN, PARK, SWEET ) GRASS AND STILLWATER COUNTIES, MONTANA. )

NOV 1 5 1994 CLAIMANT: Mary Meagher D. Michael Murphy ntarta &ter Court OBJECTOR: D. Michael Murphy, Mary Meagher

MASTER'S REPORT

STATEMENT OF THE CASE

David Michael Murphy [Murphy] objected to the ownership, priority date, purpose of right, volume, place of use, source, flow

rate, point of diversion, means of diversion, and period of use of

Mary Meagher [Meagher] domestic claim 43B-W-194858-00. Meagher

filed a Notice of Intent to Appear. Statement of Claim 433-W- 194858-00 was originally filed by Clayton Olson, then later

transferred to Meagher.

Meagher objected to the ownership, priority date and purpose of right of this Murphy stockwater claim 433-W-195014-00.

Murphy filed a Notice of Intent to Appear. Statement of Claim 43B-

W-195014-00 was originally filed by Nelson Starkweather, then later transferred to Murphy. The hearing of these objections was held on January 10, 1994 before Senior Water Master Kathryn L. W. Lambert. Appearing were Mary Meagher, David DePuy, attorney on behalf of Mary Meagher, and Robert Jovick, attorney on behalf of D. Michael Murphy. Testifying were Cecil Bekeman, Clayton Olson, and Mary Meagher.

Murphy Exhibits i, ii, iii-A and iii-B were admitted without

objection. Meagher Exhibits vi, vii, viii, viiii (sic), P-1 MM, P- 2 MM, P-3 MM, P-4 MM, P-5 MM, P-6 MM, P-7 MM, P-8 MM, P-9 MM, P-10

MM, P-11 MM, P-12 MM, P-13 MM, P-14 MM, P-15 MM and P-16 MM were admitted without objection.

Meagher and Murphy filed post-trial briefs on February 28, 1994. The Response to Brief of Dennis Michael Murphy was filed by Meagher on March 14, 1994. The Response Brief of D. Michael Murphy was filed on March 16, 1994.

On June 14, 1994 Kathryn L. W. Lambert, David DePuy and Robert Jovick conducted a site inspection of the spring and surrounding area.

Upon review of the claim and case files, the testimony, exhibits and argument presented, and the site inspection, the following Findings of Fact and Conclusions of Law are entered:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CONCLUSION OF LAW I) The Montana Water Court has jurisdiction to review all objections to temporary preliminary decrees pursuant to Mont. Code Ann. §85-2-233.

CONCLUSION OF LAW II) "'Existing right' means a right to the use of water which would be protected under the law as it existed prior to July 1, 1973." Section 85-2-102(9) Mont. Code Ann. As this proceeding is conducted as part of the adjudication of the claims for existing water rights contained in the Temporary Preliminary

Decree of the Yellowstone River Above and Including Bridger Creek,

-2- the scope of this proceeding is to determine the elements of these water rights as they existed prior to July 1, 1973. Section 3-7- 224(2) Mont. Code Ann.

FINDING OF FACT 1) The common source of these two claims is a spring located in the NWNENE 29, 08S, 07E, Park County. The Murphy and Meagher properties comprise what was formerly known as the

Heist Ranch. The spring is located on the Murphy property above

the Meagher cabin. The area surrounding the spring is hummocky and heavily saturated. Depending on the time of year, there is some surface water including a small creek draining the southern side of the area.

FINDING OF FACT 2) Following is the history of the Heist Ranch and the water use from this spring:

A. The property upon which the spring is located was included in the April 17, 1907 Patent from the United States of

America to Solomon Heist. From the beginning this was a cattle ranch from which Heist earned his living. The Heist Ranch included the property now owned by Murphy and Meagher.

B. Meena Dexter, daughter of Solomon Heist, and her husband Roy Dexter built a cabin on the Heist Ranch, below the spring, sometime after 1925. Water was hauled to the cabin by bucket for several years. It is not clear from the testimony what the source of supply was, but the implication was that the water was taken from the spring or the creek which drains the area saturated by the spring.

C. A Warranty Deed, dated December 5, 1928, filed June 27, 1934, transferred the Heist Ranch from Solomon Heist to his wife Mary Ellen Heist.

-3- D. A Warranty Deed, dated September 27, 1932, filed September 5, 1950, transferred what is now the Meagher property from Solomon Heist and Mary E. Heist to Meena M. Dexter. The cabin and the surrounding one acre are known as "the Dexter tract".

E. Roy Dexter dug out the spring and installed a rock filled, walled basin and pipeline from the spring on the Heist

Ranch (whether then owned by Solomon Heist and Mary Ellen Heist, or just Mary Ellen Heist is unclear) down to the Dexter cabin. It is

not known precisely when the spring was dug out and the pipeline

installed, but there was water in the house from this system in

April 1941. This was a year-round residence for the Dexters. F. Another of the Heists' children and his or her spouse (Cecil Bekeman's parents) operated the Heist Ranch after Solomon

Heist. The Ranch carried cattle and horses, and from this operation, they earned their living. The area west of the road, bordering the Dexter Tract on three sides and within which the spring is located, was the winter pasture prior to later cultivation. The spring and its small creek are the only sources of water within this pasture area. There was no evidence submitted about when the use of the area changed from winter pasture to cultivation.

G. A Warranty Deed, dated September 8, 1953, filed April

3, 1957, was executed transferring the Dexter Tract from Meena M. Dexter to her son, Joseph W. Dexter.

H. Solomon Heist's granddaughter and her husband, Cecil E. Kahle (now Cecil Bekeman) and Robert R. Kahle, Jr. acquired the Heist Ranch from Mary Ellen Heist by Warranty Deed dated October

26, 1954, filed October 28, 1954. The Kahles owned the Heist Ranch

-4- for about five years. During that time they leased the Ranch to Nelson Starkweather who continued to run cattle on the Ranch.

I. Nelson Starkweather purchased the Heist Ranch from the Kahles in about 1955. He continued running cattle until he sold the Ranch in the late 1970s.

J. Clayton Olson purchased the Dexter tract from Joe Dexter in 1960 or 1961. He and his family used the cabin as a

summer home and for winter weekend recreation. During his ownership he cleaned out the spring a couple of times each year.

K. On August 12, 1983 a Notification of Transfer of

Appropriation Water Right was filed recording the transfer of claim

433-W-195014-00 from Nelson H. Starkweather to D. Michael Murphy.

L. Meagher purchased the Dexter tract from Clayton Olson in 1984. Meagher tore out the rock filled, walled basin and

installed a pipe, approximately 12 inches in diameter and 4 feet - long, stabilized with concrete. The pipe is installed vertically,

with approximately 1 foot above the ground level. The inside of

the pipe creates a small reservoir (approximately 1.5 to 2 feet below ground level) from which water is delivered to the Meagher cabin through the gravity flow pipeline installed by Dexter.

FINDING OF FACT 3) During the period of bucket diversion and after the installation of the basin and pipeline, there was concurrent domestic use and stockwater use.

CONCLUSION OF LAW III) A water right put to beneficial use on a particular parcel of land is appurtenant to that parcel of land.

Mont. Code Ann. section 70-15-105, Spaeth v. Emmett, 142 Mont. 231, 383 P.2d 812 (1963), and Smith v. Denniff, 24 Mont. 20, 60 P. 398 (1900).

-5- CONCLUSION OF LAW IV) "[Al water right acquired by appropriation, and used for a beneficial and necessary purpose in connection with a given tract of land, is an appurtenance thereto, and as such passes with a conveyance of the land, unless expressly reserved from the grant." Lensing V. Day, 67 Mont. 382, 384 (1923). See also Sweetland v. Olsen, 11 Mont. 27 (1891).

43B-W-195014-00

FINDING OF FACT 4) Heist acquired the property in 1907 and began running cattle on it, from which it can be deduced that, in 1907, the stock began drinking water from the surface flow of the spring.

CONCLUSION OF LAW V) The Heist stock water appropriation was used on the Heist land surrounding the spring, and therefore, was appurtenant to that land.

FINDING OF FACT 5) In Meagher's March 14, 1994 Response to Brief of Dennis Michael Murphy, she asserts adverse use of the stock- water right.

CONCLUSION OF LAW VI) The specified the requirements for acquiring a water right by adverse use in Smith v. Krutar, 153 Mont. 325, 329-330 (1969):

In King v. Schultz, 141 Mont.94, 100, 375 P.2d 108 (1962), this Court reiterated the repeatedly established rule that in this state the one claiming rights by ad- verse possession has the burden of proving every element of his claim. Further, in that case, this Court stated: "It is equally well settled that in order to acquire a right by adverse user or prescription, it is essential that the proof must show that the use has been (a) continuous for the statutory period which in this state is [five] years [section 93-2513, R.C.M.1947]; (b) exclusive (uninterrupted, peaceable); (c) open (notorious); (d) under claim of right (color of title); (e) hostile and an invasion of another's rights which he has a chance to prevent."

Developing case law in this state provides three basic prerequisites for establishing adverse user: (1) that the claimant used water at a time when plaintiff had

-6- need of it; (2) that he used it in such a substantial manner as to notify plaintiff that it was being deprived of water to which it was entitled; and (3) that during all of that period, plaintiff could have maintained an action against him for so using the water. King v. Schultz, supra, 101.

As Meagher presented no evidence that her predecessors used the spring at a time when the Murphy predecessors had need of it or that Meagher's predecessors' use deprived Murphy's predecessors of the use of the spring, the allegation of adverse use is unfounded, and additional detailed analysis of adverse use is unnecessary. FINDING OF FACT 6) The Heist stockwater appropriation was not expressly reserved in the grants from Solomon Heist to Mary Ellen Heist, and from Mary Ellen Heist to Cecil E. Kahle and Robert R. Kahle. The grants from Kahles to Nelson Starkweather, and from Nelson Starkweather to D. Michael Murphy were not submitted into evidence but there was no other evidence presented that the appurtenant water-right had been excluded. CONCLUSION OF LAW VII) The Heist stockwater right has remained an appurtenance to the property surrounding the spring, and as an appurtenance, is currently owned by the owner of the land, D.

Michael Murphy. FINDING OF FACT 7) The Temporary Preliminary Decree states that the priority date is April 15, 1889. This is the priority date specified on the Statement of Claim. As there was no evidence presented to substantiate this early date, and as evidence was presented that the stockwater appropriation began in 1907, the priority date should be April 17, 1907, the date of the Patent.

FINDING OF FACT 8) The purpose of right decreed for this D. Michael Murphy stockwater claim 433-W-195014-00 correctly details this claimed water right as it existed prior to July 1, 1973, and

-7- therefore, does not require change.

CONCLUSION OF LAW VIII) The priority date should be changed to April 17, 1907. The ownership and purpose of right of this Murphy stockwater claim 43B-W-195014-00 do not require change.

43B-W-194858-00

FINDING OF FACT 9) The first appropriation of the spring for domestic use was sometime after 1925 when the Dexters began diverting water by bucket. Sometime prior to April 1941, the means of diversion was changed from bucket to a rock filled, walled basin

and pipeline. Clayton Olson testified that he claimed June 30, 1935 as the priority date simply because 1935 falls between 1925 and 1941.

CONCLUSION OF LAW IX) Between 1921 and 1973 springs were subject to appropriation as specified in Section 89-801 (7093) R.C.M. which stated:

What waters may be appropriated. The right to the use of the unappropriated water of any river, stream, ravine, coulee, spring, lake, or other natural source of supply maybe acquired by appropriation, and an appropriator may impound flood, seepage, and waste waters in a reservoir and thereby appropriate the same.

(Emphasis added.) See also Section 89-810 R.C.M. which includes springs in its directions for filing notices of appropriations.

In 1961 the legislature enacted Sections 89-2911 through 89-2913 R.C.M. concerning the appropriation of groundwater. It is noted that these sections refer to groundwater using the terms "wells", "subirrigation", or "other natural processes", and it is noted that "springs" remained part of the Section 89-801 R.C.M. et seq. appropriation process.

In conclusion, an appropriation from a spring between 1921 and 1973 is governed by Sections 89-801 R.C.M. et seq. and is

-8- not governed by the groundwater Sections 89-2911 through 89-2913 R.C.M. enacted in 1961.

FINDING OF FACT 10) As the Dexter appropriation from the spring was sometime after 1925, it falls within the 1921 to 1973 time frame, and is not governed by the groundwater legislation enacted in 1962.

FINDING OF FACT 11) Since it was first appropriated, the Dexter appropriation has continued to be used on the Dexter tract for domestic purposes.

FINDING OF FACT 12) As none of the deeds from Solomon Heist and Mary E. Heist to Meena M. Dexter, from Meena M. Dexter to Joseph W.

Dexter, from Joseph W. Dexter to Clayton G. Olson, and from Clayton G. Olson to Mary Meagher, excluded this claimed water right, the

Dexter appropriation has remained an appurtenance to the Dexter tract, and is owned by the current owner of the Dexter tract, Mary Meagher.

FINDING OF FACT 13) The Temporary Preliminary Decree states that the priority date is June 30, 1935. As the actual date of first use is unknown but is sometime between 1925 and 1941, and as any date between 1925 and 1941 will still be junior to the Murphy claim, it does not matter which date between 1925 and 1941 is used.

The priority date does not require change.

FINDING OF FACT 14) In his post-trial briefs, Murphy asserts that the domestic use should be limited to weekends only to reflect the current use of this claimed right by Meagher. Meagher's use began in 1984 and is not relevant to the determination of the elements of this water right as it existed prior to July 1, 1973.

From its original appropriation the domestic use was

-9- year-round as the cabin was the permanent residence for Meena

Dexter and Roy Dexter, and then for their son Joe Dexter. From 1960 to 1973 Clayton Olson or his family occupied the cabin most of the summer, and every weekend during the winter. Although this use may well have decreased during Olson's ownership, there was no evidence presented as to the actual amount of water diverted by the Dexters or by Olson which supports an assertion that part of the Dexter right was abandoned by Olson due to his nonuse.

Lacking this evidence of nonuse, additional analysis of whether part of this claimed water right has been abandoned is unnecessary. Therefore, the flow rate, volume and period of use do not require change.

FINDING OF FACT 15) The ownership, purpose of right, volume, place of use, source, flow rate, point of diversion, means of diversion, and period of use decreed for this Mary Meagher domestic claim 43B- - W-194858-00 correctly detail the elements of this claimed water right as it existed prior to July 1, 1973, and therefore, do not require change.

CONCLUSION OF LAW X) There are no changes to be made to Mary Meagher domestic claim 43B-W-194858-00.

DATED this day of , 1994.

athrynar W. Lambert Senior eater Master CERTIFICATE OF SERVICE I, Ann L. Harms, Deputy Clerk of Court of the Montana Water Court, hereby certify that a true and correct copy of the above MASTER'S REPORT was duly served upon the persons listed below by depositing the same, postage prepaid, in the United States mail.

DATED this 16 .41day of ts3044)04AA,1 , 1994. Mary Meagher D. Michael Murphy P. 0. Box 126 5505 - 33rd St., S.E. Yellowstone National Park, WY 89120 Grand Rapids, MI 49508 David W. DePuy, Attorney Robert L. Jovick, Attorney P. O. Box 487 P. O. Box 1245 Livingston, MT 59047-0487 Livingston, MT 59047-1245

• OCAA.4 AnTi L. Harms Deputy Clerk