Marks v. 71 Ranch, LP, 2014 MT 250 (Sept. 16, 2014) (5-0) Rice, J.
Issue: Whether the Water Court correctly held that Marks failed to present sufficient evidence to rebut 71 Ranch’s claimed point of diversion and place of use for its water rights.
Short Answer: Yes.
Facts: This case involves a dispute over the purported change in the point of diversion and place of use for four water rights (Creek Rights) on Confederate Creek in Broadwater County, held by 71 Ranch. The Creek Rights have a priority date of 1866, and were decreed to Wellington Rankin in 1940. The Rankin decree identified a point of diversion and palce of use for the Creek Rights that coincides with a location n the lower point of Confederate Creek, which was described as a single, unified water system.
Rankin sold the property in 1950 but properly severed and retained the Creek Rights from the appurtenant land. In the mid-1950s, the United States built Canyon Ferry Reservoir and flooded the former place of use.
In 1982, Louise Galt, Rankin’s surviving spouse and the predecessor in interest to 71 Ranch, filed Statements of Claim for the Creek Rights, which described a new point of diversion and place of use about 3 miles upstream from the former location. Marks, whose water rights are junior to the Creek Rights, filed timely objections.
In 2002, the Water Master held a hearing and dismissed Marks’ objection on the grounds that the point of diversion and place of use changed between the issuance of the Rankin Decree in 1940 and July 1, 1973.
Procedural Posture & Holding: Marks objected to the Water Master’s findings. The Water Court affirmed all of the Water Master’s findings and conclusions. Marks appeals, and the Supreme Court affirms.
Reasoning: Marks had the burden of rebutting the information in Galt’s Statement of Claim. He argued that the Creek Rights were not beneficially used at the upstream location prior to July 1, 1973; the upper and lower portions of Confederate Creek have different water supply sources; and the Creek Rights wee abandoned. The Court addresses each one, and affirms.