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Show MONTANA 315 Procedure for appropriating water: Some other aspects. -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 appropriation for beneficial uses as provided by law."51 As previously noted (see "Early Water Uses"), mining, irrigation, and domestic uses of appropriated water had early recognition. Approval has been extended also to irrigation of pastureland and to use of water in a swimming pool and for propagation offish.52 The 1973 Montana Water Use Act defines beneficial use as "including, but not limited to, agricultural (including stock water), domestic, fish and wildlife, industrial, irrigation, mining, municipal power, and recreational uses * * *."53 The 1973 Montana Water Use Act provides that no person may appropriate water except as provided in the Act,54 and defines person as "an individual, association, partnership, corporation, state agency, political subdivision, and the United States or any agency thereof."55 Under prior legislation, the supreme court held that a corporation may make an appropriation of water in its own right.56 The validity of an appropriation made for one's own use apparently depends upon the holding of at least a possessory interest in land in connection with which the water is to be used, the situation being otherwise in the case of appropriations made for the sale or rental of water.57 The Montana Supreme Court held that the validity of an appropriation depends upon rightful diversion by lawful means;58 that a water right initiated in trespass is invalid.59 51 Mont. Const, art. IX, §3(3). The 1973 Montana Water Use Act also declares that "any use of water is a public use, and that the waters within the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses * * *." Mont. Rev. Codes Ann. §89-866(1) (1964). "State ex rel. Silve v. District Ct., 105 Mont. 106, 112, 69 Pac. (2d) 972 (1937); Osnes Livestock Co. v. Warren, 103 Mont 284, 300-302, 62 Pac. (2d) 206 (1936). In Paradise Rainbows v. Fish & Game Comm'n, 148 Mont. 412, 421 Pac. (2d) 717, 721 (1966), the Montana Supreme Court said, with respect to public fishing uses, "[U]nder the proper circumstances we feel that such a public interest should be recognized." "Mont. Rev. Codes Ann. §89-867(2) (Interim Supp. 1974). However, the definition specifically declares that the use of water for slurry (a mixture of water and insoluble matter) to export coal from Montana is not a beneficial use. 54 Mont. Rev. Codes Ann. §89-880(1) (Supp. 1973). "Id. §89-867(11). 56Bailey v. Tintinger, 45 Mont. 154, 177-178,122 Pac. 575 (1912). "Hutchins, supra note 6, at 16-17. 58 Warren v. Senecal, 71 Mont. 210, 220, 228 Pac. 71 (1924). 59 Osnes Livestock Co. v. Warren, 103 Mont. 284, 295, 62 Pac. (2d) 206 (1936). Where it can only be exercised by committing a trespass, it may not be asserted against the true owner of the land upon which the trespass is committed. |