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Show 320 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS may own a water right without a ditch right, or a ditch right without a water right."87 The diversion works of an appropriator must be reasonably efficient under the circumstances, but no requirement of absolute efficiency inures to the benefit of a subsequent appropriator.88 The system of irrigation in common use in the locality, if reasonable and proper under existing conditions, is to be taken as a standard, even though a more economical method might be installed at a higher cost to the irrigator.89 The senior appropriator may use all the waters of a stream to the exclusion of the juniors, if validly appropriated, within the bounds of his needs and facilities.90 But he is required to return to the stream, for the use of junior appropriators, all water in excess of his actual needs at any particular time.91 The subsequent appropriator is entitled to a continuance of the stream conditions as they existed at the time he initiated his right.92 In Irion v. Hyde, the court held that an upstream junior appropriator who claims that his diversion does not reduce or limit the receipt of water to which a downstream senior appropriator is entitled has the burden of showing affirmatively that under all conditions his diversion does not have this effect.93 The result of the "Connolly v. Hand, 102 Mont. 295, 300-301, 57 Pac. (2d) 781 (1936). "Ditch rights and water rights are two separate rights and in no sense synonomous." Mclntosh v. Graveley, 159 Mont. 72, 495 Pac. (2d) 186,191 (1972). In Smith v. Krutar, 153 Mont. 325, 457 Pac. (2d) 459, 462 (1969), the court said, "In this state a water right and a ditch right may exist as separate and independent species of property, and each is capable of several and distinct injuries. Harrer v. North Pacific Ry., 147 Mont. 130,410 P.2d 713 (1966). Standing alone, the ownership of a l/10th interest in the ditch is not synonymous with a l/10th interest in the water, nor is it sufficient to establish a water right in the defendants." Regarding ditch rights, see also Nixon v. Huttinga, 163 Mont. 499, 518 Pac.(2d) 263 (1974);Sfcamme/v. Vogl, 144 Mont. 354, 396 Pac. (2d) 103 (1964). SRState ex rel. Crowley v. District Ct., 108 Mont. 89, 97-98, 88 Pac. (2d) 23 (1939); Worden v. Alexander, 108 Mont. 208, 215, 90 Pac. (2d) 160 (1939). An appropriator is bound to the exercise of reasonable care in constructing and maintaining his appliances. Dern v. Tanner, 60 Fed. (2d) 626, 628 (D. Mont. 1932). 89 Worden v. Alexander, 108 Mont. 208, 215-216, 90 Pac. (2d) 160 (1939). 90Meine v. Ferris, 126 Mont. 210, 216, 247 Pac. (2d) 195 (1952). "Mont. Rev. Codes Ann. §89-805 (1964). In Gwynn v. City ofPhilipsburg, 156 Mont. 194, 478 Pac. (2d) 855, 857 (1970, as amended 1971), the Montana Supreme Court said, "Whatever rights Philipsburg may have to maintain dams and store and use waters, be they flood waters or the natural flow of Fred Burr Creek, it is entitled to no more water than its necessity requires or its distribution system will carry; it is the duty of Philipsburg to permit the excess to flow into the stream for the use of downstream appropriations. Whitcomb v. Helena Water Works, 151 Mont. 443, 444 P.2d 301 (1968)." 92Smith v.Duff, 39 Mont. 382, 389-390, 102 Pac. 984 (1909). 93Irion v. Hyde, 110 Mont. 570, 581-584, 105 Pac. (2d) 666 (1940). Evidence to the effect that the water reaching the downstream prior appropriator would be of no benefit to him must be such as to warrant a judgment enabling the upstream appropriator to withhold the water. Geary v. Harper, 92 Mont. 242, 249, 12 Pac. (2d) |
