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Show MONTANA 309 owner of stored waters, could petition the court to have decreed stored waters distributed by commissioners,8 but that was the extent of State administrative connection with the proceeding. In 1965, the duties and authority of the State Engineer were transferred to the State Water Conservation Board9 and in 1967, the State Water Conserva- tion Board was replaced by the Montana Water Resources Board.10 In 1971, the Montana Water Resources Board was abolished and its function transferred to the newly created Department and Board of Natural Resources and Conservation.11 With the enactment of the Montana Water Use Act in 1973, a permit system for acquiring water rights was established, under the supervision and control of the Department and Board of Natural Resources and Conservation. In addition, the Department and Board were given authority to determine water rights existing on the effective date of the Act.12 The distribution of water, however, continues as an almost entirely judicial function. Various aspects of these functions are discussed under succeeding topics. Appropriation of Water of Watercourses Recognition of doctrine of prior appropriation.-The first Territorial legisla- tive assembly of Montana passed an act to protect and regulate the irrigation of land.13 Any holder of land adjacent to or near a stream was entitled to use the water thereof for irrigation and to a right of way if necessary over intervening property. Subsequent legislation recognized the doctrine of appropriation as applicable to all controversies over water rights for mining, manufacturing, agriculture, and other purposes.14 Both Territorial and State legislation prescribed methods for the appropriation of water.15 In its first decision in a water rights controversy, the Montana Supreme Court recognized the appropriation doctrine with respect to a claim of right to use water for mining purposes.16 The question was subsequently raised but not answered with respect to ranchers;17 but it was decided affirmatively *Id. §§89-1001 to-1024. 9 Mont. Laws 1965, ch. 280, §17. 10Mont. Laws 1967, ch. 158. 11 Mont. Laws 1971, ch. 272, §1. 12 Mont. Laws 1973, ch. 452, Rev. Codes Ann. § §89-870 to -889 (Supp. 1974). 13Bannack Stat, p. 367 (1865). 14 Among other Territorial acts were Mont. Laws 1879, p. 52, and Laws 1885, p. 130. 15 A chronological account of Territorial and State legislation on acquisition of water rights is contained in the Montana Supreme Court's opinion in Mettler \. Ames Realty Co., 61 Mont. 152, 166-168, 201 Pac. 702 (1921). A historical discussion of the development of the appropriation doctrine in Montana, repudiation of the riparian doctrine, and unsuccessful attempts to obtain a centralized system of control of water rights is included in Dunbar, R. G., "The Search for a Stable Water Right in Montana," 28 Agricultural History 138-149 (1954). 16Caruthersv.Pemberton, 1 Mont. Ill, 117 (1869). 17 Thorp v. Woolman, 1 Mont. 168, 171 (1870). |