Nelson v. Brooks, DA 13–0570.

• Decision Date: 07 May 2014
• Docket Number: No. DA 13–0570.,DA 13–0570.
• Citation: 329 P.3d 558,375 Mont. 86
• Court: Montana Supreme Court
• Parties: Ernest E. NELSON, Objector and Appellant, v. Randall BROOKS and Ila Mae Brooks, Claimants and Appellees.

375 Mont. 86

329 P.3d 558

Ernest E. NELSON, Objector and Appellant,

v.Randall BROOKS and Ila Mae Brooks, Claimants and Appellees.

No. DA 13–0570.

Supreme Court of Montana.

Submitted on Briefs April 2, 2014.

Decided May 7, 2014.

For Appellant: Peter Guillum Scott; Gough, Shanahan, Johnson & Waterman, PLLP; Bozeman, Montana.

For Appellees: Randall Brooks and Ila Mae Brooks, self-represented; Dillon, Montana.

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Ernest Nelson (Nelson) appeals from an order of the Montana Water Court filed July 31, 2013, dismissing his objections to the water rights claim by Randall and Ila Mae Brooks (the Brooks). The Brooks' claim was contained in the Water Court's Temporary Preliminary Decree for the Big Hole River Basin (41D) issued on April 6, 2007. We affirm.

ISSUES

¶ 2 A restatement of the issues on appeal is:

¶ 3 1. Did Nelson have a previously adjudicated right to the Disputed Well?

¶ 4 2. Did the motion to amend the Statement of Claim by the Brooks repudiate the originally filed claim?

¶ 5 3. Did the Water Court err by relying on the Brooks' filed Statement of Claim as prima facie proof of the water right?

¶ 6 4. Did the Water Court err in concluding that it need not consider whether the Brooks' claimed right was a “use” right or “filed” right?

¶ 7 5. Did the Water Court err in concluding that sufficient evidence existed to amend the Brooks' purpose of use to include domestic use?

¶ 8 6. Did the Water Court err in concluding that ownership of the point of diversion for the claim was not dispositive of the ownership of the water right?

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

¶ 9 This case involves a dispute over the water rights to a well (Disputed Well) located in Beaverhead County, in the northwest quarter of the southeast quarter of the southeast quarter of Section 5, Township 4 South, Range 9 West, P.M.M. (all Sections referred to hereafter are in this township and range). The Disputed Well is located on federal Bureau of Land Management (BLM) land. Several mining claim sites were historically situated throughout BLM land in Sections 4, 5, 8, and 9. Private land holdings surround the BLM land. The mining claim (also called a mill site) where the Disputed Well is situated was originally established by Minerals Engineering in the early 1950s for processing tungsten ore. Minerals Engineering drilled several wells, including the Disputed Well, for different purposes including operation of the mill and domestic use for the miners.¹ In 1963, Minerals Engineering filed a Declaration of Vested Groundwater Rights for 100 gallons per minute (gpm), listing the Disputed Well as the diversion point, means of withdrawing as an electric driven pump, and claiming continuous use for “primarily domestic” purposes since 1954.

¶ 10 Adjacent to the Minerals Engineering site, Carl Kambich owned a ranch (Kambich Ranch). Several documents were presented showing cooperation between Minerals Engineering and Carl Kambich (Kambich) since the early 1950s for wells, fences, etc. Most of the documents presented concern a well drilled by Minerals Engineering in another mining claim site located in Section 8 (Section 8 Well). This well was drilled sometime around 1955, and the project report states it provided inadequate water for the mining operations so was traded to Kambich for “other considerations.” This well has a limited flow, between 1/5 to 1/2 gpm, and uses natural artesian pressure to transfer water downhill to a stock tank. The current user of this well is not known, but documents relating to the maintenance and improvement of the Section 8 Well, signed by the Kambich family, are dated as late as 2007.² Nelson and the Brooks agree that this is not the well the Brooks have been using.

¶ 11 Another document of importance between Kambich and Minerals Engineering, dated July 1, 1953, is simply entitled “Indenture.” This document grants Kambich the “sole and exclusive right” to a water well “on Minerals No 3 mill site mining claim.” No further description of the well is given, but the Indenture grants the “right to enter into and upon said mill site claim, and to pump water from said well, to water stock thereat, or to convey all or any part of the water from said well across said mill site claim by ditch or pipe line to adjoining lands.” The well conveyed in this Indenture is the subject of further discussion below.

¶ 12 On April 15, 1982, Kambich filed a Statement of Claim for Existing Water Rights (numbered 41D–40063). The Statement of Claim described an unnamed well located in the northwest quarter of the southeast quarter of the southeast quarter of Section 5; a place of use in Section 4, due east from the well and within the mill site boundaries (first place of use); a priority date of January 1, 1954; a pump as means of diversion; and a flow rate of 100 gpm. The purpose of use was noted as stock water, and the right was declared to be a filed appropriation right. Attached to the Statement of Claim was a map with a hand drawn point of diversion and place of use; a copy of the 1963 Declaration of Vested Rights originally recorded by Minerals Engineering for the Disputed Well; and the 1953 Indenture. The map appears to indicate the Disputed Well as the diversion point, and the Water Master and Water Court both interpreted it to be for this well.³

¶ 13 The Brooks purchased the Kambich Ranch in 1990. Kambich filed a notice of transfer of water right for claim 41D–40063 to the Brooks on August 1, 1990. The Brooks operated the ranch until 1993 when they sold off all but 120 acres, which they still own. In 1990, the Brooks claim the Disputed Well was not used at the first place of use, but instead provided water to a barn on the ranch for a bathroom and kitchen, as well as stock water pumped by means of an above-ground hose into tanks northwest of the well in Section 5 (second place of use). In 1993, the Brooks were granted a right-of-way permit by BLM to bury water pipe and electrical lines from the Disputed Well. Though the permit identifies the location of the right-of-way as the eastern half of the northeast quarter of the southwest quarter of the southeast quarter of Section 5, only a portion of the lines travel through this area as the well is located in the adjacent west half of the northwest quarter of the southeast quarter of the southeast quarter of Section 5. However, attached to the permit, and incorporated by reference, is a map with a hand drawn location showing a line from the Disputed Well to a location that appears to be the barn, northwest of the well.

¶ 14 In 2006 or 2007, the barn was converted into a home for the Brooks' son, Tim. The barn has since been sold, and the Disputed Well is no longer its source of water. The barn now uses a different well on BLM land, 200 feet north of the Disputed Well. Tim was granted a right-of-way permit by BLM to access this well in 2007. The Brooks also built a new home in 2007, in the southeast quarter of the northeast quarter of the southwest quarter of Section 5, northwest of the Disputed Well and west of the barn. The Brooks currently use the Disputed Well as the water source for this home (third place of use), though they apparently did not file a request to change place of use with the DNRC. The water is conveyed by underground pipe. They claim to have been using the water in this location at a travel trailer since 1993, prior to and while building their home.

¶ 15 Minerals Engineering ceased its operations at some point in 1976. Successors to Minerals Engineering included General Electric Corporation (GE), Union Carbide Corporation, and Leonard Garrand (Garrand). In 2002, Nelson purchased the mine interests from Garrand, and in 2007, Apex Abrasives (Apex), a company organized by Nelson, received a permit for mining operations on the site. Nelson claims BLM did not notify him of the Brooks' use of the Disputed Well, but he discovered it in 2007. Apex subsequently drilled a new well from which it gets 115 gpm.⁴

¶ 16 While the mining claims were in the hands of GE, GE filed three statements of claim for water rights. Claim 41D–92881 is for a surface water right, apparently with a point of diversion out of the Big Hole River. Claim 41D–92882 and 41D–92883 are both well claims with a priority date of December 31, 1954, a point of diversion in the south half of the southeast quarter of Section 5, and a place of use in the southeast quarter of the southeast quarter of Section 5. In a separate proceeding (case 41D–167), the Water Court considered objections to these three claims and issued post-decree abstracts for each in 2012. The two well claims were granted to Nelson for a combined total not to exceed 100 gpm. The Brooks did not object in this proceeding.

B. Procedural Background

¶ 17 The current Water Court case involves only the 41D–40063 claim originally filed by Kambich. BLM, GE, and Nelson all objected to the claim. BLM and GE later withdrew their objections, leaving Nelson as the sole objector. The abstract for the claim contained DNRC issue remarks indicating that claims 40063, 92882, and 92883 all appeared to be duplicate claims for the same historic appropriation of water due to the similarity in priority dates and point of diversion. The remarks also stated that “ownership of this right may be questionable [because t]he place of use appears to be on federal land.”

¶ 18 On May 17, 2011, prior to hearing, the Brooks filed a motion to amend the Kambich Statement of Claim. They sought to amend the place of use to the third and current place of use in Section 5; the priority date to June 15, 1953; the type of right to “use” rather than “filed”; and the flow rate to 10 gpm. On May 26, 2011, a DNRC water resource specialist filed a memorandum recommending acceptance of all requested amendments. Specifically, the memorandum notes that the 1953 Indenture “transferred ownership of this well from...