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Weinheimer Ranch, Inc v. George A. Pospisil

April 9, 2013

WEINHEIMER RANCH, INC., CLAIMANT AND APPELLANT,
v.
GEORGE A. POSPISIL, OBJECTOR AND APPELLEE.



APPEAL FROM: Montana Water Court, Lower Missouri Division, Judith River Basin, Cause No. 41S-A1 Honorable C. Bruce Loble, Chief WaterJudge

The opinion of the court was delivered by: Brian Morris

Submitted on Briefs: October 30, 2012

Decided: April 9, 2013

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Weinheimer Ranch, Inc. (the Ranch) appeals from an order of the Montana Water Court (Water Court) that the Ranch had failed to support with sufficient evidence its motion to amend its previously filed claim's historical right and priority date. We affirm.

¶2 We address the following issues on appeal:

¶3 Whether the facts in the record required an inference that the Ranch's predecessor in interest mistakenly had listed Section 9 instead of Section 4 on his 1896 Notice of Appropriation?

¶4 Whether the Water Court properly determined that the Ranch had failed to present substantial evidence in support of its motion to amend its claim?

BACKGROUND AND HISTORY

¶5 Pursuant to Article IX, Section 3(4), of the Montana Constitution, the legislature has provided for the administration, control, and regulation of water rights. Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶ 2, 361 Mont. 77, 255 P.3d 179; see also, §§ 85-2-101, MCA to 85-2-907, MCA. The Water Court possesses the exclusive authority to adjudicate existing water rights. Section 85-2-216, MCA; Rule 1(a), Water Rights Adjudication Rules (W. R. Adj. R.). The Court has set forth the Water Court's practices and procedures in the Montana Water Rights Adjudication Rules. See Rule 1(a), W. R. Adj. R.

¶6 Franz Weinheimer filed a notice of appropriation in 1971. The 1971 notice of appropriation alleges that Franz Weinheimer, through his predecessors in interest, had appropriated 2,500 gallons per minute (gpm) from "an unnamed water course" in 1900. The notice lists a point in Section 4, Township 14 North, Range 16 East as the point of diversion. Franz's son, Francis E. Weinheimer (Weinheimer), filed Claim 41S-W-100200-00 (Claim) with the Montana Water Court on December 7, 1981. The Claim generally tracks the 1971 Notice of Appropriation. Weinheimer transferred the property interests in the Claim to Weinheimer Ranch, Inc. (Ranch) on December 12, 1991. The Ranch now owns the rights to the Claim.

¶7 The Water Court issued a Temporary Preliminary Decree for the Judith Basin River on May 17, 1984. The Temporary Preliminary Decree provides George K. Pospisil (Pospisil) a priority date of 1897. Pospisil owns property adjacent to the Ranch. The same decree provides the Ranch with a 1900 priority date. Odenwald Creek serves as the listed point of diversion for the water rights of both Pospisil and the Ranch. No one objected to the Temporary Preliminary Decree with respect to the priority dates for Pospisil and the Ranch.

ΒΆ8 The Ranch diverts its water from Odenwald Coulee in Section 4. The Ranch diverts the water by a headgate and conveys the water by ditch to irrigate 20 acres of agricultural land. The Claim has a flow rate of 2,500 gpm for an annual volume of 60 acre-feet per year. The Claim includes a filed historical right with a priority date of December 31, 1900. Pospisil's filed water right, with a ...


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