ROGER D. PETERS, CARRIE A. PETERS, Claimants and Appellants,
Hildreth Livestock Co., OBJECTOR HELEN WELLBORN, WILLIAM R. WELLBORN, Claimants and Appellees. NOTICE OF INTENT TO APPEAR: Denhan Ranches, Inc.
Submitted on Briefs: October 3, 2018
FROM: Montana Water Court, Cause No. 41A-183 Honorable
Douglas Ritter, Associate Water Judge
Appellants: Roger Peters, Carrie Peters, self-represented,
Appellees: Ryan K. Mattick, Jeremy A. Michael, Cusick,
Mattick & Refling, P.C., Bozeman, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Roger and Carrie Peters (Peters) appeal the order of the
Water Court that adopted the Water Master's Report
dismissing Peters' claim to 120 miner's inches from
Medicine Lodge Creek in the Red Rock River Basin (41A).
This case involves two competing irrigation claims,
Peters' Claim 41A 95026-00 and Claim 41A 117659-00, held
by William and Helen Wellborn (Wellborn). In 1895, the
Beaverhead County District Court decreed rights totaling 270
miner's inches from Medicine Lodge Creek, conveyed
through the Nesbitt Ranch Ditch, with an August 1, 1886,
priority date, split among three appropriators, including
James Nesbitt, who was granted 120 miner's inches (3 cfs)
(Nesbitt Right). The Nesbitt Property, consisting of nearly
160 acres, was located in Sections 7 and 18 of Township 10
South, Range 11 West, Beaverhead County. Nesbitt sold the
property in 1892, and it was eventually sold to C.L.
Livestock Company (C.L. Livestock) in 1920.
In 1925, the District Court issued another decree for
Medicine Lodge Creek. This decree listed C.L. Livestock as
owner of the former Nesbitt Property in Sections 7 and 18, as
well as a larger parcel of land in Sections 4, 5, 9, and 10,
and granted C.L. Livestock three rights totaling 475
miner's inches, including a right for 120 miner's
inches, with a priority date of August 1, 1886, conveyed by
the Nesbitt Ranch Ditch. The 1925 decree established that the
rights conveyed by the Nesbitt Ditch were historically used
on C.L. Livestock's lands in Sections 7 and 18, as well
as the lands owned by a Mary Craver (Craver) in Sections 13
and 24 of Township 10 South, Range 12 West. Peters and
Wellborn are successors to the lands owned by C.L. Livestock,
and both claim a 120 miner's inches right based upon the
Nesbitt Right. Because the combined flow rates of their
claims exceeded the decreed flow rate, both claims appeared
in the Preliminary Decree for Basin 41A with an issue remark
denoting a "decree exceeded" status.
The Water Master held a hearing on the Peters-Wellborn
"decree exceeded" issue on November 28, 2016. The
parties offered several chain-of-title documents as evidence.
Wellborn also called three witnesses, but Peters called none,
relying on the "prima facie status of claim 41A
95026-00." The Master found that Wellborn was the
successor to the Nesbitt Right, and that, while both parties
were successors in interest to land owned by C.L. Livestock,
"the Medicine Lodge Right is appurtenant" to the
land now owned by Wellborn. Moreover, the Master found the
water right as conveyed by the Nesbitt Ranch Ditch was
historically and continuously put to use on the Wellborn
land, and there was no evidence suggesting that the Medicine
Lodge Right was severed from the land. The Master determined
"the Right remained appurtenant to the land and was
conveyed to the Wellborns when they purchased the
property." The Master also noted that, other than
chain-of-title evidence, Peters did not offer any evidence
relating to their historical use of water claimed under 41A
95026-00. Thus, the Master concluded that Wellborn was
entitled to all 120 miner's inches, and recommended
dismissal of Peters' claim.
Peters filed objections to the Water Master's Report,
raising new assertions regarding Wellborn's historical
use and the number of acres Wellborn irrigated with the
Nesbitt Right. Peters requested the Water Court take judicial
notice of another claim, Claim 41A 118190-00, asserting that
both Peters and Wellborn are successors to the Nesbitt Right
and that the 120 miner's inches flow rate should be
apportioned between both parties based on acres irrigated.
The Water Court denied Peters' request, reasoning that
Peters sought to use the claim "as evidence supporting
arguments they first raised in their objection to the
Master's Report." The court thus reasoned the
assertions were not timely and, further, Peters' new
arguments were "not relevant to the decree exceeded
issue." The court determined that the Master's
recommendations were supported by substantial evidence.
Tracing the chain of title, the court found that Peters'
and Wellborn's land had a common predecessor after the
Nesbitt land was sold and split, who "acquired the
Nesbitt property and appurtenant water right in 1920."
This land was again sold and split in 1950, with the Nesbitt
Right remaining appurtenant to that land. Wellborns became
the successor to this right when they purchased the land. As
such, the court concluded that "Wellborn acquired the
entire Nesbitt [R]ight when [they] purchased the property in
1973," and thus, "Wellborn claim 41A 117659-00 is
the successor to the Nesbitt [R]ight."
Peters appeal. In water cases, we employ two standards of
review: "the standard the water judge applies to the
Water Master's report and the standard we apply to the
Water Court's opinion." Marks v. 71 Ranch,
LP, 2014 MT 250, ¶ 12, 376 Mont. 340, 334 P.3d 373
(citation omitted). "[T]he Water Court reviews the Water
Master's findings of fact for clear error and the Water
Master's conclusions of law for correctness."
Marks, ¶ 12 (citations omitted). "We apply
the same standards of review to the Water Court as we do to
an appeal from a district court. Whether the standard of
review was applied correctly is a question of law."
Marks, ¶ 13 (citation omitted). Thus, we review
a Water Court's decision "under a de novo standard
to determine whether it correctly applied the clear error
standard of review to the Water Master's findings of
fact, and whether its conclusions of law are correct."
Marks, ¶ 13 (citation omitted).
On appeal, Peters raise three issues: whether the Water Court
erred by adopting the Water Master's finding that
Wellborn's right as conveyed by the Nesbitt Ditch had
continuously been put to use on the Wellborn property;
whether the Water Court erred by ruling that any alleged
nonuse by Wellborn was not relevant to the validation of
Peters' claim to a portion of the right; and third,
whether the Water Court erred by denying Peters' request
for judicial notice to support their argument that the
Wellborn property is incapable of supporting 120 miner's
inches, as untimely and irrelevant. We consider the primary
issue on appeal to be whether the Water Master's findings
that Wellborn was entitled to all 120 miner's inches from
the Nesbitt Right were clearly erroneous, and whether the
Water Court erred in adopting those findings.
The question presented and to be resolved by the Water Court
was the conflict between the competing claims of Peters and
Wellborn to the Nesbitt Right. Key to the resolution of that
issue was a determination of which party's land the
Nesbitt Right was appurtenant, requiring assessment of the
chain of title from the original Nesbitt Ranch property, and
a determination of whether the water right had been severed
from the original place of use. Here, the Water Master
considered chain-of-title documents and the district court
decrees, tracing the Nesbitt Right from the 1895 decree,
which allotted 270 miner's inches from Medicine Lodge
Creek through the Nesbitt Ranch Ditch to Wilson Wadams (30
miner's inches), James Nesbitt (120 miner's inches),
and Frank Andrews (120 miner's inches) with a priority
date of August 1, 1886. The Master found that, "based on
the information provided in the Decree and patent
information, it is ...