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Show MONTANA 311 where there was no compliance with the statute which purported to govern such appropriations.24 This statute was originally enacted in 1885.25 Prior to enactment of the 1885 law, it was the rule that an appropriation by one who prosecuted the work with reasonable diligence related back to the time of commencement of the work.26 The priority of a nonstatutory appropriation of unadjudicated water made after such enactment, however, was fixed as of the date of completion rather than the date of initiating the appropriation.27 Pre-1973 procedure for appropriating unadjudicated water: Statutory.-A method of appropriating water was first prescribed by statute in 1885.28 The intending appropriator was 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 of appropriation diligently to completion. Failure to comply with the statutory requirements deprived the appropriator of the right of use of the water as against a subsequent claimant who complied therewith; but by compliance, the right of use related back to the date of posting notice, which was the first step in the procedure.29 Pre-1973 procedure for appropriating adjudicated water.-The procedure for making an appropriation of water from a source that has been adjudicated was provided in 1921.x An intending appropriator had to (a) employ a competent "Vidal v. Kensler, 100 Mont. 592, 594-595, 51 Pac. (2d) 235 (1935); Clausen v. Armington, 123 Mont. 1, 14, 212 Pac. (2d) 440 (1949). See also Shammel v. Vogl, 144 Mont. 354, 396 Pac. (2d) 103,111-112 (1964). "Mont. Rev. Codes Ann. §§89-810 to -814 (1964). See "Pre-1973 procedure for appropriating unadjudicated water: Statutory," infra. "Murray v. Tingley, 20 Mont. 260, 268, 50 Pac. 723 (1897). 21 Anaconda Nat'l Bank v. Johnson, 75 Mont. 401, 408-410, 244 Pac. 141 (1926); Midkiffy.Kincheloe, 127 Mont. 324, 328, 263 Pac. (2d) 976 (1953). 28 Mont. Laws 1885, p. 130. 29 Mont. Rev. Codes Ann. § §89-810 to -814 (1964). It was the conclusion of the Montana Supreme Court that the 1885 law did not abolish the preexisting method of appropriating water by means of diversion and application to beneficial use. Murray v. Tingley, 20 Mont. 260, 268, 269, 50 Pac. 723 (1897). What the statute did was to provide an additional and alternative method under which evidence of water rights would be preserved and the doctrine of relation back regulated. That is, whereas the statutory method was not the exclusive procedure by which one may appropriate unadjudicated water, it was the exclusive procedure by which an intending appropriator could obtain the advantage of the doctrine of relation. Musselshell Valley Farming & 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 (C. C. D. Mont. 1906). In Bailey v. Tintinger, 45 Mont, at 170, the State supreme court named an additional purpose of the act of 1885-to prescribe the steps necessary to be taken to effect a complete appropriation of the water. 30 Mont. Laws 1921, ch. 228, Rev. Stat. Ann. § §89-829 to -844 (1964). {Continued) |