Montana Attorney General Opinion 15-298

Opinion No. 298 Water Rights-State Lands-Easements HELD: A water right may be per- fected when water from springs has been appropriated on state land and com-eyed across said land through a pipe line without securing a right o~ way in the form of an easement from the state. August 10, 1933. You ask "whether or not a water right is perfected when water in the form of springs has been appropriated on sta te land and conveyed across said land through a pipe line without secur- ing a right of way in the form of an easement from the state." It appears from the report of the state forest warden attached to your letter that three persons who own and occupy tracts adjoining state land are obtaining their supplies of water thru pipes which tap four springs located on said state land. 'It further appears that the predecessors in interest of at least two of these occupiers followed the provisions of Sections 7100 and 7101, Revised Codes 1921, in appropri- a ting or attempting to appropriate the waters of three of the springs. The re- port also discloses that two permitees who occupy small tracts of said state land have no water available for do- mestic use unless permitted to take water from one or another or all of ~aid springs. The rule is universally recognized that in order to acquire a water right on ,the private land of another, one must acquire an easement in such land. An easement can be acquired only by grant from the owner, by condemna- tion proceedings or by adverse user. (Prentice v. McKay, 38 Mont. 114). This rule, however, has no applicll- tion to public land. The laws of Mon- tana give a person the right to go on the public domain for the purpose of appropriating water flowing through the same or ha ,-ing its source therein. The diversion of such water may be made by a ditch, flume, pipe or aque· duct. (Section 7093 et seq., Re,ised Codes 1921; Smith v. Denniff, 24 Mont. 20; Prentice v. McKay, supra.) The first appropriator on a stream or >=pring is entitled, b~' drtue of his prior right, to the use and enjoyment of the water to the full extent of his original appropriation, even when this includes all of the water of the stream or spring, and this right continues so long as he applies all of the water appropriated to some useful or hene- ficial purpose. (Mettler v. Ames Realty Co., 61 Mont. 152; 2 Kinney on Irri- gation and Water Rights, sec. 781; 40 Cyc. 714-718). The legislative declara- tion is that, as between appropriators. he who is first in time is first in right. (Section 7098, Revised Codes, 1921). If it be so tha t the th ree persons mentioned above have ,-alidly appro- priated all of the water which flows from the four springs in question, then the fact that the permitees are without any water is of no consequence in the case. In Montana, moreo'-er, no pref- erence right is I,riven to a junior ap- propriator for the use of water for do- mestic purposes. It may be well to add that a person can acquire a water right by adverse u~er as against the state. (State Y. Qua ntic, 37 Mont. 32).