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Show MONTANA 321 junior appropriator's actually making the required strong affirmative showing appears in two other cases decided by this court as follows: When the evidence given by the upstream junior appropriator tends to show that the waters of stream A would not, even if uninterrupted, reach stream B on which senior headgates are located, this junior appropriator whose diversion is located on stream A is prima facie entitled to make use of the water if such use does not interfere with the use by senior appropriators of the natural flow in stream B. The burden then is upon the latter to show that, if uninterrupted, the waters of stream A would reach stream B by a defined channel either on the surface or in the ground, and that the junior's appropriation of it diminishes the volume of water flowing in stream B.94 Imposition of a system of rotation by a trial court was approved by the Montana Supreme Court under the circumstances of a 1901 case.95 In a recent case, the Montana Supreme Court said, "The primary right to the use of water in a stream is that of the appropriator of the natural flow, not the storage claimant."96 In an earlier case, however, the court said "the laws of Montana that apply to the acquisition of running water equally apply to the storage and use of flood or waste water, and the doctrine of 'first in time, first in right' applies to both."97 In the earlier case, the court expressed its approval of the principle of utilizing a reservoir to store water in any year for use in that or in succeeding years.98 But in two recent cases it appears to have taken a more restrictive approach regarding the refilling of a reservoir or other storage of water during the irrigating season at the expense of irrigation appropriators of the natural streamflow.99 Under the 1973 Montana Water Use Act, anyone intending to appropriate water by means of a reservoir must apply for a permit as prescribed by the Act.100 The effect of this Act on these opinions is problematical. 276 (1932). "Persons who construct and maintain reservoirs to impound waters of an adjudicated stream have the burden of showing that they do not interfere with the rights of prior appropriation of water from the stream." Whitcomb v. Helena Water Works Co., 151 Mont. 443, 444 Pac. (2d) 301, 303 (1968). "Ryan v. Quinlan, 45 Mont. 521, 531-532, 124 Pac. 512 (1912); Loyning v. Rankin, 118 Mont. 235, 249, 165 Pac. (2d) 1006 (1946). 95Anderson v. Cook, 25 Mont. 330, 331-335, 338-339, 64 Pac. 873, 65 Pac. 113 (1901). 96Gwynn v. City of Philipsburg, 156 Mont. 194, 478 Pac. (2d) 855, 859 (1970, as amended in 1971); Whitcomb v. Helena Water Works Co., 151 Mont. 443, 444 Pac. (2d) 301 (1968). 91 Federal Land Bank v. Moms, 112 Mont. 445, 116 Pac. (2d) 1007, 1012 (1941). This case was not mentioned in either of the 1968 or 1970 opinions in the previous footnote. 98Federal Land Bank v. Morris, 112 Mont. 445, 454-456, 116 Pac. (2d) 1007 (1941). "Whitcomb v. Helena Water Works Co., 151 Mont. 443, 444 Pac. (2d) 301 (1968); Gwynn v. City of Philipsburg, 156 Mont. 194, 478 Pac. (2d) 855, 859 (1970), in which the court said, "The primary right to the use of water in a stream is that of the appropriator of the natural flow, not the storage claimant," as mentioned above. 100Mont. Rev. Codes Ann. §89-889 (1973). |