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Show MONTANA 455 relative priorities and rights of all parties in one judgment.63 As a consequence, the adjudication of rights on a stream may be allowed to proceed piecemeal in private suits between rival claimants over a period of many years.64 B. ACQUIRING RIGHTS IN ADJUDICATED STREAMS An "adjudicated stream" is any "river, or stream, ravine, coulee, spring, lake, or other natural source of supply concerning which there has been an adjudication of rights between appropriators or claim- ants in any district court of the State, or the United States court, in an action prosecuted in good faith * * * to determine their respective rights * * *."65 A statute enacted in 1921 provides for court adjudi- cation as the exclusive method of appropriating waters from an ad- judicated stream.66 An appropriator must file a petition with the court in the county in which water is appropriated stating the amount, the watercourse, and a description of his ditch or aqueduct showing the proposed means of appropriation and use and the place of use of the water. An engineering survey of ditches or aqueducts is re- quired. The petition must be accompanied by a map or aerial photo- graph showing the point and means of diversion and the course of ditches or aqueducts. Additional information is required for reser- voirs, for example, the contour line of the reservoir, together with the height and width of dams, the point and means of discharge from dams, and their spillways.67 The appropriator must also declare in his petition that the right sought will be subject to prior decrees for rights on the same source of supply and must name all other appro- priators or claimants from the source of supply as defendants.68 Process and procedure in the adjudication follow the procedures in other civil actions.69 At the end of the trial the court may enter an interlocutory or permanent decree allowing the petitioner's appropri- ation in whole or in part subject to prior decreed rights.70 Interlocu- tory decrees may establish the conditions under which work necessary to complete an appropriation must be done in order for the date of the appropriation to relate back to the filing of the petition.71 Any person not made a party to the adjudication may at any time petition the court for an order making him a party and establishing his right in relation to other rights affected by the decree.72 However, a person's failure to take advantage of this provision has been held not to bar him from thereafter complaining of the decree.73 In this regard the statute provides only that the decree shall, as against all persons appropriating or diverting waters of the adjudicated source MSec. 89-815, Repl. vol. 6 (part 1), R.C.M., 1947; Bennett v. Quinlan. 47 Mont. 247. 131 Pac. 1067 (1913) ; Sloan v. Byera, 87 Mont. 503, 97 Pac. 855 (1908). 81 See generally Stone, The Long Count on Dempsey: No Final Decision in Water Right Adjudication, 31 Mont. L. Rev. 1 (1969). « Sees. 89-839, Repl. vol. 6 (part l), R.C.M., 1947. «°Secs. 89-829, 89-839, Repl. vol. 6 (part 1), R.C.M., 1947, as amended; Anaconda National Bank v. Johnson, 75 Mont. 401, 244 Pac. 141 (1926). « Sec. 89-829(1) and 89-829(2), Repl. vol. 6 (part 1, R.C.M., 1947. «8 Sec. 89-829(3) and 89-829(4), Repl. vol. 6 (part 1, R.C.M., 1947. «> Sec. 89-831, Repl. vol. 6 (part 1), R.C.M., 1947. 70 Sees. 89-831, 89-8312, Repl. vol. 6 (part 1), R.C.M., 1947. 71 Sec. 89-834, Repl. vol. 6 (part 1), R.C.M., 1947. n Sec. 89-835, Repl. vol. 6 (part 1), R.C.M., 1947. 73 State ex rel. McKnight V. District Court, 111 Mont. 520, 111 P. 2d 292 (1941). |
