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Charles E. Fellows, An Individual v. the Office of Water Commissioner For

August 10, 2012

CHARLES E. FELLOWS, AN INDIVIDUAL, PLAINTIFF AND APPELLANT,
v.
THE OFFICE OF WATER COMMISSIONER FOR THE PERRY V. BEATTIE DECREE CASE NO. 371, AND ALL JOHN DOE WATER USERS, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 11-0110 Honorable Laurie McKinnon, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

Argued: May 23, 2012

Submitted: May 30, 2012

Decided: August 10, 2012

Filed:

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Charles E. Fellows appeals from the District Court's order dismissing his complaint. We reverse and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Fellows owns a water right in Spring Creek near Choteau, Montana, decreed in 1892 in Sands Cattle and Land Co. v. Jackson, Case No. 727. He claims that the flow of Spring Creek is or was for many years recharged by water seeping from the natural channel of the Teton River. He claims that the practice of diverting water from the natural channel of the Teton River, implemented by the District Court's water commissioner on the Teton, has adversely affected the water available to satisfy his water right in Spring Creek.

¶3 A portion of the water rights used in the upper reaches of the Teton River was decreed in 1908 in Perry v. Beattie, Case No. 371.*fn1 One of the senior (in time) water rights decreed in Perry was a right to a flow rate of 300 miner's inches of water decreed to the Choteau Cattle Company. *fn2 At the time of the Perry decree Choteau Cattle's point of diversion was, and still is, located downstream from a porous gravel section of the Teton riverbed near Choteau, sometimes referred to as the Springhill Reach. At the time of the Perry decree and for many years thereafter, Teton River water flowed down its natural channel and through the Springhill Reach to where Choteau Cattle exercised its water right. In order for Choteau Cattle to exercise its senior right, more than 300 miner's inches of water had to remain in the channel to account for the water that seeped into the ground as the River flowed through the Springhill Reach. Fellows claims that this seepage water recharged Spring Creek and is a source of the water that he uses from Spring Creek.

¶4 In the 1950s or 1960s (the date is not clear and may be as late as the 1970s) the District Court's water commissioner administering the Perry v. Beattie water rights pursuant to § 85-5-101, MCA, began diverting Choteau Cattle's 300 miner's inches of water out of the Teton and into the Bateman Ditch, which transports the water around the Springhill Reach before returning it to the natural channel just above Choteau Cattle's point of diversion. In some times of the year no water at all flows through the natural channel of the Teton River because of the diversion through the Bateman Ditch. The Bateman Ditch diversion was implemented without express approval of the District Court and apparently without any other agreement in writing. The Bateman diversion was implemented for the benefit of upstream appropriators with rights junior to Choteau Cattle's right, enabling them to exercise their water rights without having to allow more than 300 inches to flow through the Springhill Reach to arrive at Choteau Cattle's point of diversion. While some of the benefitted users hold rights under the Perry decree, the practice also benefits one holder of a non-decreed right. Choteau Cattle does not claim any rights to use the Bateman Ditch and does not claim the Ditch as a point of diversion.

¶5 In February, 2011, Fellows filed a complaint against the water commissioner administering the Perry v. Beattie decree. The complaint contained a claim as a dissatisfied water user under § 85-5-301(1), MCA; claims based upon private and public nuisance and negligence; and requests for a writ of prohibition, an injunction and declaratory relief. The District Court ordered that Fellows serve notice of his lawsuit on persons who hold decreed water rights in the Teton River. The District Court subsequently ordered briefing on several issues, including whether Fellows had standing to sue under § 85-5-301(1), MCA, as a dissatisfied water user.

ΒΆ6 Fellows claims that diverting the flow of the Teton River before it gets to the gravel section of the riverbed diminishes the flow of Spring Creek and interferes with his Spring Creek water right. He claims that Spring Creek and the Teton River are hydrologically connected via water seepage from the Springhill Reach; that he can prove the connection; that a source of his right is the Teton River; and that his Spring Creek right is senior to many of the rights later decreed in Perry v. Beattie. Fellows claims that as a matter of law he has the right to have the flow of the Teton River remain as it was at the time of the Perry decree and for many decades thereafter: flowing down the natural channel and through the Springhill Reach. He contends that the water commissioner's practice of diverting the Teton River around the Springhill Reach is contrary to the Perry decree, and that it adversely impacts his ...


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