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Show MONTANA 325 Repudiation of the Riparian Water- Use Doctrine Although in 1921 the Montana Supreme Court completely repudiated the riparian doctrine of water use rights,114 there was doubt for many years prior thereto as to whether or not this doctrine prevailed in this jurisdiction. As a matter of fact, the court did refer to riparian rights in a few decisions that began very early in the series of reported cases and continued to 1900, a result of which was to confuse rather than to clarify the riparian ques- tion.115 Finally in 1921, for the first time in the judicial history of Montana, the supreme court rendered a decision in a case which squarely presented for consideration a claim of riparian rights as against a claim of appropriative right. The case was Mettler v. Ames Realty Company.116 The court reviewed the decisions it had rendered on the subject of riparian rights and stated that (while in various cases observations had been made upon some phase or other of the riparian doctrine), an examination of the facts would disclose that the question of riparian rights had not been involved in any of them and that the comment made upon the subject by the court in every instance was purely obiter dictum. Therefore, the court felt entirely at liberty to treat the matter as one of first impression in the jurisdiction. After reviewing the Territorial and State legislation on water rights and construing the public policy of the State indicated by such measures with respect to the subject under review, the court concluded "that the common-law doctrine of ripar- ian rights has never prevailed in Montana since the enactment of the Bannack Statutes in 1865; that it is unsuited to the conditions here."117 The unequivocal declaration in Mettler v. Ames Realty Company was sustained several years later in a case in which riparian rights were claimed 114 Other possible riparian rights, which may encompass more than just the right to use water, are mentioned in chapter 6 at notes 154-156. In 1925 the Montana court applied the common law right of fishery. Herrin v. Sutherland, 74 Mont. 587, 595-596, 241 Pac. 328 (1925). Riparian rights regarding accretions were discussed in McCafferty v. Young, 144 Mont. 385, 397 Pac. (2d) 96 (1964). 115 See Thorp v. Woolman, 1 Mont. 168, 171-172 (1870); Fitzpatrick v. Montgomery, 20 Mont. 181, 185, 50 Pac. 416 (1897); Haggin v. Saile, 23 Mont. 375, 381, 59 Pac. 154 (1899); Smith v. Denniff, 24 Mont. 20, 21-23, 60 Pac, 398 (1900). In Smith v.Deniff comments concerning the riparian doctrine were altogether dicta because they had nothing to do with the facts or issues involved. In Atchison \.Peterson, 87 U.S. 507, 510-513 (1874), affirming 1 Mont. 561 (1872), the United States Supreme Court stated that among the miners in the Pacific Coast States and Territories, the doctrine of prior appropriation prevailed because "As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day, after the discovery of gold, found to be inapplicable or applicable only in a very limited extent to the necessities of miners, and inadequate to their protection." llbMettler v.AmesRealty Co., 61 Mont. 152, 157-158, 165, 166, 201 Pac. 702 (1921). U761 Mont, at 170-171. |
