                                                                                            10/03/2017


                                        DA 16-0573
                                                                                        Case Number: DA 16-0573

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2017 MT 241



CLAIMANT: Danreuther Ranches

OBJECTORS: Farmers Cooperative Canal Company;
Teton Cooperative Canal Company;
Eldorado Cooperative Canal Company;
United States of America (Bureau of Indian Affairs);
Danreuther Ranches

COUNTEROBJECTORS: Farmers Coop Canal Company.




APPEAL FROM:         Montana Water Court, Cause No. 41O-209
                     Honorable Douglas Ritter, Water Judge


COUNSEL OF RECORD:

              For Appellants:

                     John E. Bloomquist, Abigail J. St. Lawrence, Bloomquist Law Firm P.C.,
                     Helena, Montana

              For Appellee:

                     Stephen R. Brown, Katelyn J. Hepburn, Garlington Lohn &
                     Robinson, PLLP, Missoula, Montana


                                                  Submitted on Briefs: August 2, 2017

                                                             Decided: October 3, 2017


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     This is an appeal from the Water Court’s August 30, 2016 “Order Regarding

Danreuther Ranches Water Right Claims.” We affirm in part and reverse in part.

¶2     We restate the issues on appeal as follows:

       Issue One (Canal Companies): Whether the Water Court erred in its orders
       regarding Danreuther Claim Nos. 41O 156802-00; 41O 156804-00;
       41O 156805-00; and implied Claim No. 30106965.

       Issue Two (Danreuther cross-appeal): Whether the Water Court erred in its
       orders regarding Danreuther Claim No. 41O 156804-00.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     The following facts are taken from the Water Court’s decision.         This appeal

concerns certain water rights of the Danreuther Ranch, located along the Teton River

north of Carter, Montana. Lands in that area generally require irrigation to produce crops

and the Teton River is the only reliable source of surface water with the exception of a

spring in Captain Nelse’s Coulee. Danreuther Ranch raises crops, hay and livestock, and

seeks to irrigate 182.8 acres north of the River and 69.7 acres south of the River. The

Ranch also claims stockwater from the River and from the Coulee spring.

¶4     The Danreuther Ranch was part of the Edward Reichelt ranch that began in 1888

with the acquisition of land and water rights along the Teton River. In 1935 Edward

divided his ranch between his two sons, Dan and Bruno, and Danreuther is the successor

in interest to Dan. Danreuther filed statements of claim in the water adjudication process,

for irrigation and stockwater. The claims are based upon an 1874 claim statement by



                                            2
Nelson Vieux; notices of appropriation filed in 1914 by Horace Hibbard and Helen

Hibbard; and a notice of appropriation filed in 1921 by Clara Lamphear.

¶5     Danreuther’s most senior water claims are based upon activity beginning in 1874

by an early settler named Nelson Vieux, who came to the Fort Benton area in the 1860s

and settled on land along the Teton River. Vieux’s settlement was about 20 miles west of

Fort Benton and became a regular second-night stop for freight wagons traveling the

Whoop-Up Trail to Canada.1 It was located at the mouth of the Nelse Coulee (named for

Vieux) that provided the heavy freight wagons a passage out of the Teton River valley.

The peak activity on the Trail was between 1874 and 1883, and the Water Court found

that there was “significant development” at the Vieux ranch during this time. Vieux

applied for a homestead in 1882.

¶6     On February 19, 1874, Vieux filed a written notice with Teton County stating that

he intended to “claim and appropriate” water from the Teton River “for irrigating and

agricultural purposes.” He also claimed the right to float logs down the River to his

settlement, unimpeded by any dams or obstructions upstream. The 1874 Vieux filing did

not provide any other information about the intended use of water.           According to

Chouteau County tax records, Vieux did not claim any improvements on his land until

1881, but he paid taxes on “over 100 head of livestock every year.” The Water Court

found that the evidence did not support a conclusion that Vieux was irrigating crops until




       1
        See the attached diagram of the Whoop-Up Trail. Vieux’s settlement is labeled “Capt
Nels’ Leavings.”
                                            3
“the 1880s” and that there was no “compelling evidence” that Vieux was irrigating at an

earlier date.

¶7     The Water Court found that the “best evidence” that Vieux was irrigating came in

his May 7, 1887 homestead claim filing. Vieux stated that he moved his family to the

Teton River land in 1880, when he “established a permanent residence, and took up

farming.” The 1887 filing states that Vieux farmed nine acres in 1880 and farmed 50

acres by 1887.    The Water Court determined that since “cultivation in this area is

pointless without irrigation,” the evidence of cultivation is “a strong indication of

irrigation.” In addition, Vieux claimed ownership of farming equipment including plows,

harrows, scythes, a rake and a mowing machine. The homestead claim filings also

support ownership of 100 open range cattle and 60 open range horses, with four horses,

three cows and some chickens and hogs “on the homestead.” The Water Court found that

this was consistent with the tax records showing that Vieux was keeping livestock and

using the Teton River for their water source. Vieux received a homestead patent on 160

acres that is now part of the Danreuther Ranch.

¶8     The Water Court concluded that the preponderance of the evidence showed that

Vieux appropriated stockwater from the Teton River and from a spring in Nelse’s Coulee

as early as 1874. The Water Court also concluded that the preponderance of the evidence

showed that Vieux was irrigating nine acres by 1880; that he had increased that to 50




                                            4
acres by 1887; and that these water appropriations were made on his settlement on the

Teton River.2

¶9     The Water Court found that in 1888 Edward Reichelt acquired a homestead on the

Teton River downstream from Nelson Vieux. Reichelt developed his own water rights

and acquired property and water rights from others including Vieux, Horace Hibbard,

Helen Hibbard, and Clara Lamphear. In 1904 Reichelt secured rights of way for ditches

over neighboring lands and on January 25, 1905, he filed a notice of appropriation for 10

cubic feet of water per second (cfs) from the Teton River. The “Reichelt Ditch” has since

been the only ditch on the north side of the Teton River capable of carrying water from

the River to Reichelt’s various parcels of land. Reichelt acquired the Vieux property and

water rights by 1914. He combined the Vieux rights with other rights and ran them

through the Reichelt Ditch for irrigation.          By 1922 Reichelt acquired the Hibbard

properties and water rights.

¶10    In 1935 Reichelt split his ranch between his sons Dan and Bruno. Dan’s upstream

parcel later became the Danreuther Ranch after succession to his daughter Janet who

married into the Danreuther family. Danreuthers later filed statements of claim for the

Vieux, Horace Hibbard (4 cfs) and Helen Hibbard (1 cfs) water rights for use on the

upper ranch. Bruno’s part of the Reichelt Ranch is still in the Reichelt name, and it


       2
          In 2009 Objector Farmers Co-op Canal sought summary judgment to invalidate
Danreuther’s Vieux-based claim. The Water Court Master concluded that the 1874 Vieux filing
was not a valid notice of appropriation and therefore could not support the claimed priority date.
The Water Court reviewed this decision and in 2013 concluded that the Vieux filing could be
used to support the claimed priority date and that the burden of proof to support the contents of
the Danreuther statement of claim had not shifted to the claimant.
                                                5
claims water rights developed by Edward Reichelt. These Danreuther and Reichelt water

rights are all distributed for irrigation through the Reichelt Ditch.

¶11    The Water Court reviewed the conflicting testimony by opposing experts

concerning the amount of land that the Danreuthers irrigated through the Reichelt Ditch

system. While much of the testimony was based upon analysis of aerial photographs

from the 20th century, Danreuther’s expert additionally conducted field examination of

the ditches. Based upon the aerial information and the field inspection, Danreuther’s

expert determined that “182.80 acres is within the historical range of irrigation on the

Danreuther property.”     The Water Court determined that the combination of aerial

photograph survey with field examination of the sites was important and “provides

additional credibility” to the conclusions. The Department of Natural Resources and

Conservation (DNRC) review of Danreuther’s claims also supported the conclusion that

182.80 acres were under irrigation. The western part of the ranch, including the Vieux

homestead, is sprinkler irrigated from the Reichelt Ditch, while the eastern part is flood

irrigated from the same source.

¶12    Danreuther’s water claims for irrigation arising from this history are No.

41O 156804-00, based upon the 1874 filing and subsequent use by Nelson Vieux; and

Nos. 41O 156805-00 and 41O 156806-00, based upon the 1914 notices of appropriation

by Helen Hibbard and Horace Hibbard. All three claims specify the Teton River as their

source and the Reichelt Ditch as the means of diversion. The statements of claim by

Danreuther Ranches claimed a flow rate of 6.9 cfs and a place of use of 182.8 acres for



                                               6
each of the three rights. The Water Court noted that the source for the claimed 6.9 cfs

flow rate “is a mystery.”

¶13    The Water Court carefully examined the available evidence on the Danreuther

claim for the right to sprinkler irrigate 69.7 acres south of the Teton River based upon a

1921 notice of appropriation filed by Clara Lamphear. The evidence showed that there

was little likelihood that the land covered by the Lamphear notice was ever irrigated

because it is steep, broken and not irrigable. The evidence showed that Dan Danreuther

developed his sprinkler system for the land south of the Teton River in 1972. This is

Claim No. 41O 156807-00.

¶14    Danreuther Ranch also filed two claims for stock water use directly from the water

source. Claim No. 41O 156801-00 was a use right for 201 animal units from a spring in

Captain Nelse’s Coulee with a priority date of 1870 (changed by rule to December 31,

1870). Claim No. 41O 156802-00 covers the right to use stockwater for 201 animal units

from the Teton River based upon the 1874 filing by Nelson Vieux.

¶15    The Water Court also noted a stipulation entered between Danreuther and Reichelt

to amend certain statements of claim.       The stipulation provides that a portion of

Danreuther’s Claim No. 41O 156804-00 should be transferred to Reichelt so that the right

to use 5.64 cfs to irrigate 149.4 acres remains with Danreuther, while 1.26 cfs goes to

Reichelt to irrigate 33.4 acres.     This stipulation resolved the issue of whether

Danreuther’s claim to 6.9 cfs from the Teton River was a single claim or was three

separate claims for that amount of water.       As a result, Danreuther’s Claim Nos.



                                            7
41O 156804-00, 41O 156805-00, and 41O 156806-00 represent claims to a total flow

from the Teton River of 6.9 cfs.

¶16   The Water Court reached conclusions of law based upon these facts. The Court

concluded that Danreuther’s properly-filed statements of claim are prima facie evidence

that the information in them is true, § 85-2-227(1), MCA. As a result, Objectors have the

burden to show by a preponderance of the evidence that any challenged claim elements

“do not accurately reflect the beneficial use of the water rights as they existed prior to

July 1, 1973.” Weinheimer Ranch, Inc. v. Pospisil, 2013 MT 87, ¶ 21, 369 Mont. 419,

299 P.3d 327.      The Water Court generally upheld the water rights claimed in

Danreuther’s statements of claim, with modifications.

¶17   The Canal Companies (Farmers, Teton, and Eldorado) appeal and Danreuther

cross-appeals.

                              STANDARD OF REVIEW

¶18   This Court reviews the Water Court’s findings of fact under the clearly erroneous

standard. Skelton Ranch v. Pondera County Canal & Reservoir Co., 2014 MT 167, ¶ 26,

375 Mont. 327, 328 P.3d 644. Under this standard a finding of fact may be clearly

erroneous if it is not supported by substantial evidence; if the Water Court

misapprehended the effect of the evidence; or if a review of the record demonstrates that

a mistake has been made. Skelton Ranch, ¶ 27. “Substantial evidence” is evidence that a

reasonable person would accept as adequate to support a conclusion, even if the evidence

is weak or conflicting. Skelton Ranch, ¶ 27. This Court reviews the Water Court’s

conclusions of law to determine whether they are correct. Skelton Ranch, ¶ 26.

                                            8
                                      DISCUSSION

¶19    Issue One (Canal companies): Whether the Water Court erred in its orders
       regarding Danreuther Claim Nos. 41O 156802-00; 41O 156804-00;
       41O 156805-00; and implied Claim No. 30106965.

¶20    Danreuther Claim No. 41O 156804-00 represents a claim to the right to divert

water from the Teton River for irrigation, based upon Nelson Vieux’s 1874 filing with

Chouteau County. While the Water Court found sufficient evidence that Vieux was

raising and watering stock by 1874, it found that there was insufficient evidence that

Vieux was also irrigating crops by that time. The Court noted that by 1888 Vieux had

been on the property 20 years; established a freight station; farmed the homestead; and

raised cows. Based upon the declarations in Vieux’s homestead claim filings, the Water

Court concluded that Vieux was irrigating 9 acres of crops by 1880 and that he was

irrigating an additional 41 acres by 1887. Based upon this evidence of water use, and the

fact that crops would not grow there without irrigation, the Water Court determined that

Vieux had perfected those rights to irrigate out of the Teton River.

¶21    The Canal Objectors dispute the validity of the Water Court’s decision, arguing

that Vieux’s 1874 filing with Chouteau County was insufficient to establish a water right.

The Objectors correctly note that prior to 1885 the sole method for perfecting a water

right was to actually put water to a beneficial use. Gilcrest v. Bowen, 95 Mont. 44, 51, 24

P.2d 141, 144 (1933). That is why the Water Court dated the priority of the two Vieux

appropriations from the date of the first evidence of actual water use in 1880 and 1887.

Those would have been the priority dates for these two rights whether or not the 1874

filing was ever made.

                                             9
¶22    Objectors also point to the absence of evidence of when Vieux commenced his

ditches; when he completed the ditches; the volume of water diverted; or the actual

beneficial use of water. Certainly, the record would be clearer if it included precise

information as to Captain Vieux’s activities in the 1870s and 1880s. This Court has

recognized that proof of precise facts as to persons’ activities over one hundred years ago

is often not possible, even where written records are kept. In cases where the existence of

a public road is at issue, for example, we have examined the record as a whole rather than

focusing on strict compliance with statutory requirements, recognizing that otherwise

there would be an unjustifiable burden to prove the existence of a public road 100 years

later. Leticia Land Co. v. Anaconda-Deer Lodge County, 2015 MT 323, ¶ 15, 381 Mont.

389, 362 P.3d 614; Sayers v. Chouteau County, 2013 MT 45, ¶ 26, 369 Mont. 98, 297

P.3d 312 (citing Reid v. Park County, 192 Mont. 231, 627 P.2d 1210 (1981)).

¶23    In this case, not only do we recognize the difficulty of proving precise facts and

dates of activities that took place over 140 years ago, but also the express requirement

noted above that the contents of a statement of claim are to be presumed true unless

overcome by a preponderance of the evidence. Section 85-2-227(1), MCA; Weinheimer

Ranch, ¶ 21. Here the objectors rely primarily upon an absence of evidence showing

exactly what Vieux did and when he did it. However, the evidence that Vieux was

cropping a precise number of acres in 1880 and in 1887, coupled with the unassailable

fact that crops will not grow in that area without irrigation, firmly support the Water

Court’s conclusion regarding Claim No. 41O 156804-00. The Water Court properly



                                            10
concluded that the Objectors failed to show by a preponderance of the evidence that the

claim should be rejected.

¶24    Objectors have not demonstrated that the Water Court’s findings or conclusions

are clearly erroneous, or that the Court misapprehended the evidence, or that a clear

mistake was made. To the contrary, the Water Court carefully noted and weighed the

evidence to reach the decision and we find no error.

¶25    Danreuther Claim No. 41O 156802-00 is a right to water stock directly from the

Teton River, based upon the claims and activities of Nelson Vieux. The Water Court

determined that the evidence, particularly Vieux’s declarations filed in support of his

homestead entry, showed that he had a stockgrowing operation on the Teton River by

1874, and that the River was one of the few reliable water sources in the area. The Water

Court further concluded that evidence of historical accounts of the Whoop-Up Trail,

newspaper articles, tax records and homestead documents support Danreuther’s statement

of claim to the right to water 201 animal units from the Teton River. Vieux listed the

precise number of animals kept at his homestead, along with additional animals that he

allowed to openly graze. These stock numbers, plus the fact that the Teton River was the

primary reliable source of stock water then, supported the Water Court’s determination of

the extent of this water right.

¶26    The Water Court concluded that the Objectors’ arguments failed to overcome the

statutory presumption in favor of the truth of the elements set out in Danreuther’s

statement of claim. On appeal, they again point to the absence of precise facts as to

Vieux’s stock numbers in the 1870s and of their watering habits, but this absence of

                                            11
evidence does little to dilute the actual numbers supplied by the historical record cited by

the Water Court.

¶27      Danreuther Claim No. 41O 156805-00 is a right to irrigate on 182.8 acres north of

the Teton River based upon a September 8, 1914 notice of appropriation filed by Helen

Hibbard. Danreuther initially claimed a flow rate of 6.9 cfs, but the Water Court reduced

the claim to 1.0 cfs to match the appropriation claimed by Hibbard.

¶28      Canal Objectors contend that the Water Court should have rejected this claim

because the lands that Hibbard originally listed as the place of use are now owned by the

State of Montana, and because there is no evidence in the record that the Hibbard claim

was ever transferred to Danreuther. The Water Court concluded from the evidence that

Danreuther and predecessors had used the Helen Hibbard right along with other rights on

the 182.8-acre parcel of land, and that this aspect of the right should remain as claimed.

The Water Court reduced the flow rate to 1 cfs to reflect the original appropriation by

Hibbard.

¶29      Danreuther points out that the issue concerning the chain of title to the Hibbard

water right was not raised below and so there was no cause to present evidence on that

point.    In addition, the contents of the Danreuther claim are presumed true unless

overcome by a preponderance of the evidence. Objectors have not demonstrated that the

Water Court’s findings or conclusions are clearly erroneous, or that the Court

misapprehended the evidence or that a clear mistake was made. To the contrary, the

Water Court carefully noted and weighed the evidence to reach the decision and we find

no error.

                                             12
¶30    Issue Two (Danreuther cross-appeal): Whether the Water Court erred in its
       orders regarding Danreuther Claim No. 41O 156804-00.

¶31    Danreuther cross-appeals from the Water Court’s decisions regarding Claim No.

41O 156804-00, the right to irrigate from the Teton River based upon the original Vieux

appropriations. The Water Court altered Danreuther’s claim for a single irrigation right

with an 1874 priority date, recognizing instead two separate rights dated 1880 and 1887.

Danreuther argues it is entitled to the presumption of truth of the matters stated in the

original statement of claim with an 1874 priority. In addition, Danreuther points to the

evidence that Vieux was in fact irrigating by 1880 and argues that it is entitled to relate

the irrigation right priority date back to 1874 when Vieux filed notice of his intent to

appropriate.

¶32    The Water Court reviewed the history of the claim based upon the 1874 Vieux

declaration of intent, concluding that at that time there was no statutory procedure for

posting notice of appropriation of water. At that time, the law required that a claimant

initiate work on a diversion of water and then complete the work in a reasonable amount

of time. If so, then the claimant could date the water right from the time the work began

on the diversion. Gilcrest, 95 Mont. at 51, 4 P.2d at 144. By contrast, the Water Court

determined that Vieux’s 1874 notice established only that he had an intention to use

water at some time in the future.

¶33    The Water Court determined that while Danreuther’s evidence did not show that

Vieux irrigated in 1874, it supported a conclusion that he was irrigating by 1880. The

Water Court found that there were no tax records or crop yields from 1874 and that


                                            13
evidence of Vieux’s involvement with the “Whoop-Up Trail is too speculative to have

any credibility.” The Water Court found that the most credible evidence of irrigation on

the Vieux property came from his homestead filings, newspaper accounts from the time

and the testimony of Dan Danreuther. The Water Court concluded that this evidence

showed that Vieux was “cultivating land and harvesting crops by 1880” and that he

“produced sufficient yields to indicate irrigation.”

¶34     The Water Court determined that it was “more likely than not” that Vieux was

irrigating 9 acres in 1880 and that he “brought an additional 41 acres under irrigation by

1887.” The Water Court concluded that this evidence showing an increase in cropped

acres between 1880 and 1887 supported an “implied” second water right, with the 1887

priority date. Danreuther contends that this was not a second separate appropriation, but

rather that the evidence shows a continued development of the irrigation begun by at least

1880.

¶35     While Danreuther claimed a flow rate of 6.9 cfs, the Water Court also determined

that there was “no evidence supporting a specific flow rate based on [Vieux’s] historical

use.” The Water Court applied guidelines from the DNRC that establish a “17 gpm

[gallon per minute] (1.5 miner’s inches) flow rate per acre guideline to all use and filed

rights.” The Water Court noted that the DNRC did not reduce Danreuther’s flow rate

below the claimed 6.9 cfs because applying the DNRC guideline to 182.8 acres results in

a flow rate of 17 gpm per acre. Nonetheless, the Water Court decided that Danreuther’s

claim should be measured by the 17 gpm per acre flow rate, as applied to the acreage of

the two Vieux appropriations (1880 for 9 acres and 1887 for 41 acres). Under this

                                             14
calculation the Water Court concluded that Danreuther was entitled to total Vieux rights

of 850 gpm per acre, or 1.9 cfs. Danreuther objects to the Water Court’s rejection of the

claimed flow of 6.9 cfs.

¶36    The Water Court found that the evidence established that Edward Reichelt

acquired Vieux’s water rights, combined them with other rights, and used that water

“throughout the irrigated portion of his property.” When Reichelt split the ranch in 1935,

his successors “continued to share the water rights to some extent.”            Subsequently,

“Danreuther marshaled the rights it received from Edward on a total of 182.8 acres” and

did so “well before 1973.”

¶37    The Water Court concluded that prior to 1973 appropriators could change their

point of diversion, or the place or purpose of use, as long as it did not harm other

appropriators. At the same time, such a change could not increase the flow rate or total

volume of water used. The Water Court found that while Danreuther’s irrigation of 182.8

acres was a significant increase over Vieux’s 50 acres, there was no evidence that

Danreuther or its predecessors increased the diversion rate or total volume of water over

that used by Vieux. Additionally, the irrigation of the 182.8 acres was assisted by the use

of other rights in addition to the Vieux appropriations.

¶38    Therefore, the Water Court affirmed Danreuther’s right to use the Vieux rights,

along with other rights, to irrigate the 182.8 acres.3



       3
         Because the flow rate of the Vieux right was decreased from 6.9 cfs to 1.9 cfs, the
Water Court determined that the 2009 Danreuther-Reichelt stipulation dividing the 6.9 cfs should
no longer be enforceable.
                                              15
¶39    We agree with the Water Court’s analysis of the evidence to conclude that the

flow rate for Danreuther’s irrigation right should be based upon the acres that Vieux

irrigated beginning in 1880.      As the Water Court concluded, there was no actual

evidentiary support for a diversion rate of 6.9 cfs.

¶40    However, we find that the Water Court misapprehended the effect of the evidence

showing that Vieux’s irrigated acreage increased from 9 in 1880 to 50 in 1887. We agree

with Danreuther that, considering all the circumstances, and recognizing the passage of

time and the scant records, this increase actually represents evidence of Vieux’s

continued work to consummate the diversion he began by 1880.

¶41    Danreuther’s Vieux-based claims are governed by the law in effect at the time of

the appropriation. Marks v. 71 Ranch, 2014 MT 250, ¶ 15, 376 Mont. 340, 334 P.3d 373.

When Vieux started irrigating in 1880, Montana had not yet adopted the subsequent

(1885) statutes which allowed an appropriator to post and file a notice of appropriation

and then complete the diversion and use of water. When an appropriator did so, the

priority date of the right related back to the date the notice was posted. Montana DNRC

v. Intake Water Co., 171 Mont. 416, 430, 558 P.2d 1110, 1118 (1976).

¶42    Before 1885, however, the primary way to appropriate water was to put it to

beneficial use. Axtell v. M.S. Consulting, 1998 MT 64, ¶ 26, 288 Mont. 150, 955 P.2d

1362. The law allowed an appropriator to commence work on the headgate and ditches,

and upon completion of the system to relate the appropriation back to the date the

appropriation work was actually commenced. Gilcrest, 95 Mont. at 51, 4 P.2d at 144.

The question of whether an appropriator diligently worked on the means of diversion was

                                             16
made on a case-by-case basis considering all the facts and circumstances of the situation.

Intake Water Co., 171 Mont. at 434, 558 P.2d at 1120.

¶43    We recognize that in this case Danreuther is entitled to the presumption that his

properly-filed statements of claim are prima facie evidence that the information in them

is true, § 85-2-227(1), MCA. Weinheimer Ranch, ¶ 21. We also recognize that the

Objectors had the burden to prove by a preponderance of the evidence that this

information in the claim is incorrect. Teton Co-Op Canal Co. v. Teton Coop Reservoir

Co., 2015 MT 344, ¶ 21, 382 Mont. 1, 365 P.3d. 442.

¶44    The Objectors did not prove, by a preponderance of the evidence, that Vieux made

or intended to make two separate appropriations dated to 1880 and 1887. In fact, on

appeal, the Objectors contend that Vieux never made any valid appropriation and that

Danreuther’s claim should be voided. While the Water Court construed the evidence as

establishing two separate water rights (one an implied right), we conclude that the Water

Court misapprehended the evidence and that in this water rights context it shows a

continuation of the irrigation effort begun in 1880 and completed in 1887, with a single

priority date in 1880.

¶45    Examining the record as a whole, we agree with Danreuther’s argument of

entitlement to a single irrigation right from the Teton River based upon Vieux’s water use

in the 1880s. This claim should have a priority date of 1880 when Vieux commenced the

irrigation project, and should encompass water sufficient for irrigation on 50 acres. We

therefore agree with the Water Court’s determination as to the flow rate of 1.9 cfs

provided by this right.

                                           17
                                  CONCLUSION

¶46   The Water Court’s decision is affirmed in part, reversed in part and remanded for

further proceedings.


                                               /S/ MIKE McGRATH



We Concur:


/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




                                          18
            To Calgary

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