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Show 737 The riparian doctrine has been repudiated in Montana. For many years there was doubt as to the proper classification of the State with respect to this feature of water law, occasioned by observations con- cerning the riparian doctrine made from time to time in decisions of the supreme court. Those comments, however, were characterized as purely dicta by that court in a decision rendered in 1921 in a case in which, for the first time in the judicial history of Montana, there was squarely presented for consideration a claim of riparian right as against a claim of appropriative right.188 The court, feeling at liberty to treat the matter as one of first impression, concluded that the common-law doctrine of riparian rights had never prevailed in the jurisdiction since the enactment of the Bannack Statutes in 1865.139 The repudiation of the riparian doctrine is complete; it applies to the use of water for "the so-called natural purposes: domestic use and watering livestock," as well as to irrigation.140 The distinction commonly made between ground waters flowing in defined subterranean channels and percolating waters is observed in Montana. It is held that subsurface water flowing in defined channels reasonably ascertainable is subject to the same rules of law as water flowing in surface streams, which in this jurisdiction is the appropria- tion doctrine.141 The subsurface supply of a stream, whether coming from tributary swamps or flowing in the sand and gravel constituting the bed of the stream, is as much a part of the stream as is the surface flow and is governed by the same rules.142 In the very few decisions in which rights of use of percolating waters were discussed, the rule of ownership by the owner of the overlying land, subject to the limitation that the use be made without malice or negligence, has been acknowl- edged or conceded.143 The supreme court stated, in a recent decision involving water deposited in "pot holes" which soon thereafter disap- peared entirely in the earth below: "When that happens, it loses its character as flow water and is no longer subject to the regulations of law which govern while it is capable of direction and control. Its identity and its ownership then become the same as that of the soil of ™Mettler v. Ames Realty Co., 61 Mont. 152, 165, 166, 170-171, 201 Pac. 702 (1921). 188 The First Territorial Legislative Assembly passed an act, approved January 12, 1865, authorizing owners or holders of possessory rights in land on or in the neighborhood of any stream to use the water for irrigation and to have rights of way for ditches over intervening property: Bannack Statutes, p. 367. 140 Wallace v. Goldberg,72 Mont. 234, 244, 231 Pac. 56 (1925). iaHilger v. Sieben, 38 Mont. 93, 95, 98 Pac. 881 (1909); Ryan v. Quinlan, 45 Mont. 521,533-534,124 Pac. 512 (1912). 144 Smith v. Duff, 39 Mont. 382, 390, 102 Pac. 984 (1909). li3Ryan v. Quinlan, 45 Mont. 521, 532-533, 124 Pac. 512 (1912); Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 260, 17 Pac. (2d) 1074 (1933). |