                                                                                              02/20/2018


                                          DA 17-0525
                                                                                          Case Number: DA 17-0525

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2018 MT 28N



SALSBERY FAMILY PARTNERSHIP,

              Claimant and Appellee,

         v.

RON K. KORMAN and MAXINE KORMAN,

              Objectors and Appellants.



APPEAL FROM:           Montana Water Court, Cause No. 40M-129
                       Honorable Douglas Ritter, Water Judge


COUNSEL OF RECORD:

                For Appellants:

                       Ron Korman (Self-Represented), Maxine Korman (Self-Represented),
                       Hinsdale, Montana

                For Appellee:

                       Edward A. Amestoy, Cole Amestoy & O’Brien, Malta, Montana



                                                  Submitted on Briefs: January 17, 2018

                                                             Decided: February 20, 2018


Filed:

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


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Ron Korman and Maxine Korman (Kormans) appeal from an August 17, 2017

Water Court order granting claimant’s motion for summary judgment and dismissing the

Kormans’s stockwater right objection. We affirm.

¶3     The record shows that there is a small reservoir for watering livestock located on

an unnamed tributary of Larb Creek in Valley County. The reservoir first came into use

in 1938.    Salsbery Family Partnership (Salsbery) purchased the property with the

reservoir in place and currently owns the property where the reservoir is located. In

1977, the Kormans and Salsbery entered into a grazing agreement that allowed the

Kormans to graze livestock on the property where the reservoir is located.

¶4     Salsbery filed a claim for a stockwater right. Salsbery asserted it acquired the

reservoir and water right when it purchased the property and continue to own it as an

appurtenance to the property. The Kormans filed an objection arguing the Kormans’s

livestock had used the reservoir water while Salsbery livestock had not, and therefore the

Kormans are the actual owner of the water right. Both parties filed motions for summary

judgment.


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¶5     The Water Court determined that the Kormans did not acquire the right because of

their livestock use, and that the Kormans failed to provide evidence that the 1977 grazing

agreement conveyed any water rights.

¶6     We apply the same standards of review to the Water Court as we do to an appeal

from a district court. Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151,

¶ 16, 361 Mont. 77, 255 P.3d 179. This Court reviews the Water Court’s conclusions of

law de novo to determine whether they are correct. Scott Ranch, Ltd. Liab. Co., 2017 MT

230, ¶ 10, 388 Mont. 509, 402 P.3d 1207 (citing In re Crow Water Compact, 2015 MT

217, ¶ 19, 380 Mont. 168, 354 P.3d 1217). Therefore, we will review the Water Court’s

grant and denial of the competing motions for summary judgment de novo, applying the

same criteria of M. R. Civ. P. 56.

¶7     A claim of an existing right constitutes prima facie proof of its content. Section

85-2-227(1), MCA. The effect of the statute is to place the burden of proof on the

objector to prove by a preponderance of the evidence that the elements of the original

claim do not accurately reflect the beneficial use of the water right as it existed prior to

July 1, 1973. Marks v. 71 Ranch, LP, 2014 MT 250, ¶ 15, 376 Mont. 340, 334 P.3d 373

(citing Nelson v. Brooks, 2014 MT 120, ¶ 37, 375 Mont. 86, 329 P.3d 558).

¶8     The Kormans admit their first use of the reservoir was in 1977. They contend the

1977 agreement severed the water rights from land ownership and conveyed those rights

to the party grazing cattle. The water right was historically appurtenant to Salsbery

property.   Appurtenant water rights pass with a conveyance of the land, unless

specifically exempted in that transfer.          Section 85-2-403(1), MCA; Castillo v.

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Kunnemann, 197 Mont. 190, 200, 642 P.2d 1019, 1026 (1982).              Without a clearly

expressed reservation of the water right, it remains appurtenant to the land. Yellowstone

Valley Co. v. Associated Mortg. Investors, 88 Mont. 73, 81-82, 290 P. 255, 258 (1930).

The 1977 grazing agreement was not provided to the Water Court or this Court. As the

Kormans failed to show express language granting the water right, it remains appurtenant

to the Salsbery land. The Water Court did not err.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the Water Court’s interpretation and application of the law were correct.

¶10    Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON




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