Diversions, Ditches, & District Courts

Montana's Struggle to Allocate Water

ON A HOT SUMMER DAY in 1980 two water-rights analysts on a field investigation for the Montana Department of Natural Resources and Conservation (DNRC) climbed out of their car at a farm just west of Hamilton. The day before, their office had received a call from an irate irrigator requesting an inspection of a newly constructed pond diverting water from a ditch near Canyon Creek. Three rounds of rifle fire suddenly whizzed overhead. Frightened and angry, the investigators fled to Hamilton to call their supervisor, who responded with laughter. They then phoned the head of the Water Rights Bureau, but the bureau chief refused to take legal action, fearing the incident would cast the bureau in a bad light. As a last resort, the investigators contacted the Water Resources Division administrator, who agreed to put them in touch with a state attorney, but only if they agreed to press charges as private citizens. During the ensuing trial, the Bitterroot Valley jury remained skeptical of the assault charge, preferring instead the defense's argument that the landowner had a right to protect his property. In the end, the jury found the shooter guilty of assault (he was never charged with illegally diverting water). He served two weekends in jail.1

Although the case is an unusual one-gunplay is seldom the first means of redress in water disputes-this incident highlights some of the difficulties of administering water law drafted by a reluctant legislature for a public protective of property rights and generally suspicious of mandates emanating from Helena. Nor are such problems new. Since the birth of the territory, Montana farmers, ranchers, and legislators have grappled with the issue of water rights, seeking a means to maintain local control while attracting state and federal monies for construction of dams, canals, and ditches.2

On December 12, 1864, the first Montana Territorial Legislature convened in the gold-rush town of Bannack to formulate laws to govern the infant territory. Like other necessities of life, water was on the agenda. A month later the newly elected representatives passed a bill affirming that, henceforth, water use would be governed by the tenets of riparian rights, a set of codes based in British common law granting title to water to landowners whose property lay adjacent to rivers and streams. However, the act also recognized the need of those removed from rivers and streams to have access to water by means of canals and ditches. Three commissioners appointed by a township's justice of the peace would arbitrate any conflicts, and county district court judges would adjudicate unresolved disputes.3

It was legislation almost as significant for the things it did not mention as for the things it did. The act neither touched on the recording of water rights nor the establishment of water use. It also failed to provide a means for surveying stream flow to gauge the amount of water available for use. These shortcomings would become painfully evident over the next century.

For nearly two decades, the farmers and ranchers who settled the territory's river valleys diverted water through simple ditches without serious conflict. As the population and the economic importance of mining grew, however. Montana lawmakers began to feel riparian water rights might not be appropriate in the arid West, and they looked to the mining states of California and Colorado for direction. There they found the principle of prior appropriation: the use of a stream's flow went to claims "first in time." In 1870 the Montana Territorial Supreme Court affirmed the "first in time, first in right" principle in the case of Thorp v. Woolman, a lawsuit stemming from disagreement over water from Prickly Pear Creek near Helena. In a subsequent case. Thorp v. Freed, however, the justices upheld the riparian doctrine, expressing concern that prior appropriation could allow an individual or corporation to gain a monopoly on water. For the next five decades, the riparian doctrine occasionally entered into the debate, but in 1921, with the decision of a case involving a rancher along Prickly Pear Creek, the Montana Supreme Court finally dismissed the riparian doctrine.4

The Montana Legislature also took an active role in water-rights disputes. In 1883 litigation over the water from Middle Creek southwest of Bozeman (now Hyalite Creek) prompted a group of ranchers to enlist legislators Caldwell Edwards and Henry Wright, ranchers themselves, to introduce a bill requiring the systematic recording of water rights. Although the bill passed the legislature, a vocal minority convinced Governor John S. Crosby to veto the bill. Crosby had witnessed over-appropriation of water in Europe as U.S. consul to Italy and feared the act lacked protections against this problem. Responding to Crosby's fears, a group of ten legislators representing ranching and real estate interests in Custer, Jefferson, Chouteau, Madison, and Lewis and Clark Counties supported Crosby's veto.5