Montana 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 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,) 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.