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Show 312 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS engineer to make a survey of the proposed aqueduct, impounding dam or other work, or both; or (b) cause to be prepared an aerial photograph with drawing thereon showing this information, with appropriate descriptions. He had to file, with the court of the county in which the water was to be appropriated, a petition containing a declaration that the water right sought to be acquired would be subject to the terms of any adjudication decree theretofore rendered by a court of competent jurisdiction adjudicating the waters of such source of supply or any body of water to which the same may have been tributary. Parties who might have been affected were made defendants. On conclusion of the trial, the court could enter an interlocutory or permanent decree allowing the appropriation subject to the terms of all prior decrees. Failure to comply with the statutory provisions deprived the appropriator of the right to use water as against a subsequent appropriator mentioned in or bound by a decree of the court.31 According to the Montana Supreme Court, the statute was applicable equally to appropriations of so-called normal flow and to those of flood or excess waters in the stream.32 Unlike the act of 1907, the 1921 statute provided the exclusive method of appropriating water from an adjudicated stream or other source. It was the legislature's intention that there be substantial compliance with the statutory requirements.33 One who thus appropriated adjudicated water was simply a junior appropriator, with the rights and disabilities incident to one whose water right thus decreed was subject to the superior rights adjudicated in the original decree.34 (Continued) The 1921 procedure relating to adjudicated sources superseded that provided by an act passed in 1907. This earlier law, Mont. Laws 1907, ch. 185, superseded by Laws 1921, ch. 228, had provided that waters of adjudicated sources might be appropriated by taking prescribed steps which included posting of notice, prosecuting the work to completion with reasonable diligence, filing with the county court an application to have the ditch capacity determined, examination by an engineer, and order of the court after hearing any objections that had been filed. It was the view of the Montana Supreme Court that this procedure was not exclusive; that the legislature did not intend that one who failed to comply with the terms of the statute, but who in the absence of any conflicting adverse right nevertheless had actually impounded, diverted, and put the water to a beneficial use, should acquire no title thereby. Donich v. Johnson, 11 Mont 229, 246, 250 Pac. 963 (1926). See Anaconda Nat'l Bank v. Johnson, 75 Mont. 401, 409, 244 Pac. 141 (1926). 31 Water stored in a reservoir, pursuant to an appropriation which was subsequent to an adjudication of waters in a flowing stream, was not, when released into the stream from storage, to be considered a part of the natural flow of such stream. Mont. Rev. Codes Ann. §89-829(1964). 32Quigley v. McJntosh,8S Mont. 103, 107-108, 290 Pac. 266 (1930). "Anaconda Nat'l Bank v. Johnson, 75 Mont. 401, 411, 244 Pac. 141 (1926);Donich v. Johnson, 11 Mont. 229, 246, 250 Pac. 963 (1926). "Quigley v.Mdntosh, 88 Mont. 103, 109, 290 Pac. 266 (1930). |