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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 345 adjudicate such questions is vested exclusively in the water judges and their designated referees.588 Montana.- There is no centralized State administrative procedure for acquisition of appropriative rights in Montana. A procedure provided by statute now governs the appropriation of water from adjudicated streams or other sources of supply which must be followed in appropriating such waters. A separate statutory procedure, which apparently is optional with the intending appropriator, applies to unadjudicated sources. The State Water Resources Board has no control in any case. (1) Nonstatutory procedure for appropriating unadjudicated water. With respect to unadjudicated water only, a valid appropriation may still be made by actually diverting water and applying it to beneficial use, even without compliance with the statute which purports to govern such appropriations (see the immediately following subtopic).589 (2) Statutory procedure for appropriating unadjudicated water. The intending appropriator is required to post a notice at the point of intended diversion, to file a notice in the county records and begin construction within prescribed periods of time, and to prosecute the work diligently to completion. Only by compliance with the statute does the right of use relate back to the date of posting notice.590 According to the Montana Supreme Court, the statutory method is not the exclusive procedure by which one may appropriate unappropriated water. It is, however, the only way in which an intending appropriator may obtain the advantage of the doctrine of relation.591 (3) Procedure for appropriating adjudicated water. The statutory procedure now in force was provided in 1921.592 An intending appropriator of water of an adjudicated stream or other source of supply must provide an engineering survey and an aerial photograph.593 This is followed by a court action in which the petitioner accepts the priority of any outstanding court decree and in s**Id. § 148-21-10 (1) and (2). This is subject to certain rights of appeal to higher courts. Id. § 148-21-20(9). The 1969 legislation provided for these special water clerks, water judges, and their designated referees. Such matters were previously handled by regular courts and judicial officers. For further discussions of these and other provisions of the 1969 Colorado "Water Right Determination and Adjudication Act," see chapter 15 and the State summary for Colorado in the appendix. SS9Vidal v. Kensler, 100 Mont. 592, 594-595, 51 Pac. (2d) 235 (1935); Clausen v. Artnington, 123 Mont. 1, 14, 212 Pac. (2d) 440 (1949). S90Mont. Rev. Codes Ann. § § 89-810 to 89-814 (1964). 591 Musselshell Valley Farming and Livestock Co. v. Cooley, 86 Mont. 276, 288, 283 Pac. 213 (1929); Bailey v. Tintinger, 45 Mont. 154, 171-172, 122 Pac. 575 (1912). See Morris v. Bean, 146 Fed. 423, 427 (D. Mont. 1906). 592 Mont. Laws 1921, ch. 228, Rev. Codes Ann. § § 89-829 to -844 (1964). Sec. 89-829 de- fines an adjudicated stream or other source as one "concerning which there has been an adjudication of rights between appropriators or claimants, as contemplated in section 89-839." 593 Mont. Rev. Codes Ann. § 89-829 (1964). |