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Show 454 MONTANA State fish and game commission of amounts necessary to maintain stream flows in 12 blue ribbon fishing streams in the state.49 The re- quirement of a "useful or beneficial purpose"50 encompasses the usual domestic, municipal, industrial, and irrigation uses as well as uses for private, and perhaps public recreational purposes.51 A. ACQUIRING RIGHTS IN TJNADJUDICATED STREAMS Before 1885 water rights were acquired simply by taking water and putting it to beneficial use in the manner of and in accordance with the usage of early settlers. In 1885 the legislature provided a statu- tory method of initiating an appropriation on any "river, or stream, ravine, coulee, spring, lake, or other natural source of supply concern- ing which there has not been an adjudication of the right to use the waters, or some part thereof * * *" 52 Under the statutory method an appropriator must post a notice at the point of intended diversion.53 The notice must state the quantity claimed in cubic feet per second,54 the purpose, a description of the means of diversion, the date and the name of the appropriator.55 Within 20 days after posting notice, the appropriator must file a verified notice of appropriation with the county clerk of the county in which the appropriation is made. Within 40 days after posting notice the appropriator must proceed to prose- cute the work of appropriation and must continue thereafter with reasonable diligence to completion.56 By complying with the provi- sions of the statutory method the appropriator is entitled to have the priority date of his right relate back to the date of posting notice.57 Failure to comply deprives the appropriator of his right as against a subsequent appropriator who does comply with the statute,58 but the noncomplying appropriator may nevertheless be entitled to a right as of the date of his actual use of water.59 Consequently two distinct methods of acquiring water-one by use, the other by the statutory method-persist for unadjudicated streams.60 In the event of conflict or dispute with respect to rights on adjudi- cated streams, such rights may be recognized and protected in court.61 The records made by filing notice under the statute are prima facie evidence of the statements contained in them.62 In any court action for the protection of theretofor unadjudicated rights the plaintiff may, but is not required to, join all other persons using water from the same source and the court may, but is not required to, settle the *9 Sec. 89-801(2), repl., vol. 6 (pt. 1), R.C.M., 1947 (1971 supp.). 60 Section 89-802, repl. vol. 6 (pt. 1), R.C.M., 1947. 81 Paradise Rainbow v. Fish and Game Commission, 148 Mont. 412, 421 P. 2d 717 (1966) ; Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P. 2d 206 (1936) ; Stone, Legal Background on Recreational Use of Montana Waters, 32 Mont. L. Rev. 1 (1971). 52 Sec. 89-810, repl. vol. 6 (pt 1), R.C.M., 1947. 63 Id. M In Montana early rights were expressed In miner's inches of which there are 40 in a cubic foot per second. Sec. 89-818, repl. vol. 6 (pt. 1), R.C.M., 1947. 55 Sec. 89-810, repl. vol. 6 (pt. 1), R.C.M., 1947. 68 Sec. 89-811, repl. vol. 6 (pt. 1), R.C.M., 1947. 67 Sec. 89-812, repl. vol. 6 (pt. 1), R.C.M., 1947. 68 Id. 69 Clausen v. Armington, 123 Mont. 1, 212 P. 2d 440 (1949). 60 Stone, Problems Arising Out of Montana's Law of Water Rights, 27 Mont. L. Rev., No. 1 (1965). 61 Sec. 89-815, Repl. vol. 6 (part 1), R.C.M., 1947. 82 Sec. 89-814, Repl. vol. 6 (part 1), R.C.M., 1947. |