| OCR Text |
Show MONTANA 457 3.4 Loss of Rights Water rights are subject to loss through abandonment. However, abandonment involves both intention and nonuse. The intent shown must have been an intent to give up the water and never to resume its use.87 "Water rights may also be lost (and acquired) through prescription by adverse use,88 i.e., a continuous, exclusive, open, hostile invasion of another's rights under claim of right for the statutory period of 5 years.89 3.5 Storage Waters, Artificial Lakes, and Ponds The waters of rivers, streams, ravines, coulees, springs, lakes or other natural sources may be appropriated by means of reservoirs to impound the water.90 Further, flood, seepage and waste waters may be impounded in a reservoir and thereby appropriated.91 "Water stored for irrigation may be conveyed through the channel of a natural stream to the place of use.92 The owner of a reservoir may, upon petition, notice and hearing, obtain a court decree granting the right to convey stored water through an unadjudicated natural stream and may have commissioners appointed to measure and dis- tribute such water to persons entitled to use it.93 In addition, an irri- gator who owns a reservoir or has a right to stored water which can- not be used on his irrigated lands may discharge the stored water into a natural stream in such a manner that it can be used by prior appro- priators. He can then divert water from the stream for his own use, in exchange, and without injury to prior appropriators.94 3.6 Springs The water of springs is subject to appropriation in like manner as the water from other natural sources of supply.95 3.7 Diffused Surface Waters In Montana, as in other States, the law of appropriation applies only to waters in legal watercourses. A watercourse is a stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. It does not include holes, gullies or ravines in land, in which mere sur- face water from rain or melting snow at irregular periods is dis- charged through them from a higher to a lower level. Diffused surface waters are short-lived flows in which waters are spread over the ground and not concentrated or confined in channel flows in water- courses or in bodies of water classified as lakes or ponds. Diffused sur- w Thomas v. Ball, 66 Mont. 161, 213 Pac. 597 (1923) ; Osnes Livestock do. v. Warren, 103 Mont. 284, 62 P. 2d 206 (1936). ss Irion v. Hyde, 107 Mont. 84, 81 P. 2d 353 (1938). » Sec. 93-2504, Repl. vol. 7 (part 1), E.C.M., 1947. 90 Sec. 89-829, Repl. vol. 6 (part 1), R.C.M., 1947. 91 Sec. 89-801, Eepl. vol. 6 (part 1), R.C.M., 1947. <® Sec. 89-857, Kepi. vol. 6 (part 1), R.C.M., 1947. 98 Sees. 89-858 to 89-865, Repl. vol. 6 (part 1), R.C.M., 1947. « Sec. 89-820, Repl. vol. 6 (part 1), R.C.M., 1947. 96 Sec. 89-801, Repl. vol. 6 (part 1), R.C.M., 1947. |
