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Show MONTANA 319 "Particular emphasis shall be given to applications to reserve water for agricultural, municipal, and minimum flow purposes for the protection of existing rights and aquatic life." TO Notwithstanding any of the foregoing provisions, the Department may approve a change of use to agricultural, irrigation, domestic, and municipal uses if it determines that the change is not contrary to the purposes and policies of the legislation.80 Some aspects of the Montana appropriate right.-The water right is generally appurtenant to the land in connection with which it was acquired and is being used;81 but this is not necessarily so,82 the question being one of fact.83 An appurtenant water right passes with a conveyance of the land unless expressly reserved, or it may be disposed of apart from the land, the intention of the parties being the controlling factor.84 The 1973 Montana Water Use Act provides that the right to use water under a permit or certificate of water right passes with a conveyance of the land unless specifically exempted.85 "An appropriator may not sever all or any part of an appropriation right from the land to which it is appurtenant, or sell the appropriation right for other purposes or to other lands, or make the appropriation right appurtenant to other lands, without obtaining prior approval from the department [of natural resources and conservation]."86 The Montana Supreme Court has said, "We have held repeatedly that water rights and ditch rights are separate and distinct property rights. One 79Id. §89-8-107. *°Id. §89-8-110. etLeggat v. Carroll, 30 Mont. 384, 387, 76 Pac. 805 (1904). "Maclay v.MissoulaIn. Dist., 90 Mont 344, 353, 3 Pac. (2d) 286 (1931). 83 Yellowstone Valley Co.\. Associated Mortgage Inv., Inc., 88 Mont. 73, 84, 290 Pac. 255 (1930). "Lensing v. Day & Hansen Security Co., 67 Mont. 382, 384, 215 Pac 999 (1923). In Spaeth v. Emmett, 142 Mont. 231, 383 Pac. (2d) 811, 815-816 (1963), the court said, inter alia, "We hold that when an owner of a tract of land with an appurtenant water right grants a portion of the tract without any express division or reservation, the appurtenant water right is divided in respective amounts to each tract measured in proportion as the number of acres irrigated with the water right on the land conveyed bears to the total number of acres irrigated by the water. "In the present case the district court divided the water as provided in the aforementioned rule. Such a conclusion was correct. But, appellant argues, the effect of the court's decision is to impress a servitude of a ditch on the land of appellant where none existed before. That result is not strange when the doctrine of easements by implication is considered. * * * We hold that respondents have a ditch easement across appellant's land for the purpose of conveying their portion of the unnamed creek water right. Such was the conclusion of the district court." "Mont. Rev. Codes Ann. §89-893(1) (Supp. 1973). "Mont. Rev. Codes Ann. §89-893(3) (Interim Supp. 1974). The procedures for Department approval in this provision are identical to those for changes in appropria- tion rights set out at note 103 infra. |