OCR Text |
Show 308 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS It is the duty of the Attorney General, upon request of the Chief Engineer, to bring suit in the name of the State to enjoin unlawful diversions, uses, and waste of water.122 Montana Governmental Status The Territory of Montana was established May 26, 1864.1 The Enabling Act was approved February 22, 1889,2 and Montana was admitted to statehood by proclamation of the President November 8, 1889.3 Early Water Uses Montana shared with other northwestern regions the overflow of gold mining energy from California as the surface "diggings" in so many localities there were exploited to their capacity and gradually "played out," leaving the deeper, expensive work to those who could provide the necessary capital.4 The Montana water law itself "had its origin in the customs of miners and others in California," and was developed in Montana primarily in the mining areas in the form of local customs and rules prior to any legislation on the subject.5 The outstanding importance of mining in controversies over the use of water in Montana during the^ Territorial period is indicated by the preponderance of mining water rights cases then decided. After statehood was established, on the other hand, most of the water rights controversies that reached the supreme court related to irrigation.6 State Administrative Agency Prior to 1973, Montana was unique among the coterminous Western States in having State agencies concerned with water but with extremely limited functions pertaining to the regulation of water rights. The State Engineer, upon the direction of the State Water Conservation Board, could initiate and participate in actions to adjudicate stream waters;7 but the procedures for appropriating water included neither the State Engineer nor the Board, and neither had control over the exercise of water rights or distribution of water. The State Water Conservation Board, as well as its contractors and any other 111 Id. §82a-706d. 113 Stat. 85(1864). 2 25 Stat. 676 (1889). This act related likewise to the Territories of Washington and Dakota. 3 26 Stat. 1551(1889). 4 See Shinn, C. H., "Mining Camps, A Study in American Frontier Government" 276-280 (1948, originally published in 1885). sSee Bailey v. Tintinger, 45 Mont. 154, 166, 122 Pac. 575 {1912);Maynard v. Watkins, 55 Mont. 54, 55, 173 Pac. 551 (1918); Stearns v. Benedick, 126 Mont. 272, 274-275, 247 Pac. (2d) 656 (1952). 6 Hutchins, W. A., "The Montana Law of Water Rights" 6-7 (1958). 7Mont. Rev. Codes Ann. § § 89-848 and -851 (1964). |