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Show 310 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS in a later decision involving irrigation.18 According to the supreme court, the doctrine of appropriation "was born of the necessities of this state and its people," and was intended to be permanent in character, exclusive in operation, and to fix the status of water rights in the jurisdiction.19 The 1972 Montana constitution provides, "All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropri- ation for beneficial uses as provided by law."20 Another provision of the constitution, which also appeared in the previous Montana constitution, declares that the use of all water appropriated for sale, rental, distribution, or other beneficial uses, and the right of way over lands of others for necessary conduits and structures, as well as the sites for reservoirs necessary for collecting and storing the water, shall be held to be a public use.21 Pre-1973 procedure for appropriating water.-Montana had no centralized State administrative procedure for the acquisition of appropriative water rights. A procedure provided by statute governed the appropriation of water from adjudicated streams or other sources of water supply, and it had to be followed in appropriating waters of any adjudicated source; and a separate statutory procedure applying to unadjudicated streams and other sources apparently was optional with the intending appropriator. However, neither the State Water Resources Board nor the State Engineer had control in any case. Pre-1973 procedure for appropriating unadjudicated water: Nonstatu- tory.-Originally "all appropriations were made pursuant to the rules and customs of the early settlers of California, which had been adopted in Montana territory and given the force of law, by recognition of the legisla- ture * * * and the courts."22 The acts of digging a ditch, tapping a stream, diverting water therefrom, and applying this water to a beneficial use constituted a valid appropriation of the water.23 With respect to unadjudicated water only, valid appropriations could be made where water actually was diverted and applied to beneficial use, even 18 Gallagher v. Basey, 1 Mont. 457, 460-462 (1872), affirmed, 87 U.S. 670, 681-682, 685-686 (1875). See Atchison v. Peterson, 1 Mont. 561, 569 (1872), affirmed, 87 U.S. 507, 510-516 (1874). The right to appropriate water for mining and other useful purposes "is certainly the settled rule in this state." Fitzpatrick v. Montgomery, 20 Mont. 181, 185, 50 Pac. 416 (1897). l9Mettler v. Ames Realty Co., 61 Mont. 152, 170, 201 Pac. 702 (1921). See Bean v. Morris, 111 U.S. 485, 487 (1911). 20 Mont. Const, art. IX, § 3(3). 21 Mont. Const, art. IX, § 3(2), formerly art. HI, § 15. "Maynard v. Watkins, 55 Mont. 54, 55, 173 Pac. 551 (1918). "Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897). See Midkiff v. Kincheloe, 127 Mont. 324, 328, 263 Pac. (2d) 976 (1953). |