Salsbery v. Korman

02/20/2018
DA 17-0525
Case Number: DA 17-0525
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 28N
SALSBERY FAMILY PARTNERSHIP,
Claimant and Appellee,
v.
RON K. KORMAN and MAXINE KORMAN,
Objectors and Appellants.
APPEAL FROM: Montana Water Court, Cause No. 40M-129
Honorable Douglas Ritter, Water Judge
COUNSEL OF RECORD:
For Appellants:
Ron Korman (Self-Represented), Maxine Korman (Self-Represented),
Hinsdale, Montana
For Appellee:
Edward A. Amestoy, Cole Amestoy & O’Brien, Malta, Montana
Submitted on Briefs: January 17, 2018
Decided: February 20, 2018
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 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 Montana
Reports.
¶2 Ron Korman and Maxine Korman (Kormans) appeal from an August 17, 2017
Water Court order granting claimant’s motion for summary judgment and dismissing the
Kormans’s stockwater right objection. We affirm.
¶3 The record shows that there is a small reservoir for watering livestock located on
an unnamed tributary of Larb Creek in Valley County. The reservoir first came into use
in 1938. Salsbery Family Partnership (Salsbery) purchased the property with the
reservoir in place and currently owns the property where the reservoir is located. In
1977, the Kormans and Salsbery entered into a grazing agreement that allowed the
Kormans to graze livestock on the property where the reservoir is located.
¶4 Salsbery filed a claim for a stockwater right. Salsbery asserted it acquired the
reservoir and water right when it purchased the property and continue to own it as an
appurtenance to the property. The Kormans filed an objection arguing the Kormans’s
livestock had used the reservoir water while Salsbery livestock had not, and therefore the
Kormans are the actual owner of the water right. Both parties filed motions for summary
judgment.
2
¶5 The Water Court determined that the Kormans did not acquire the right because of
their livestock use, and that the Kormans failed to provide evidence that the 1977 grazing
agreement conveyed any water rights.
¶6 We apply the same standards of review to the Water Court as we do to an appeal
from a district court. Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151,
¶ 16, 361 Mont. 77, 255 P.3d 179. This Court reviews the Water Court’s conclusions of
law de novo to determine whether they are correct. Scott Ranch, Ltd. Liab. Co., 2017 MT
230, ¶ 10, 388 Mont. 509, 402 P.3d 1207 (citing In re Crow Water Compact, 2015 MT
217, ¶ 19, 380 Mont. 168, 354 P.3d 1217). Therefore, we will review the Water Court’s
grant and denial of the competing motions for summary judgment de novo, applying the
same criteria of M. R. Civ. P. 56.
¶7 A claim of an existing right constitutes prima facie proof of its content. Section
85-2-227(1), MCA. The effect of the statute is to place the burden of proof on the
objector to prove by a preponderance of the evidence that the elements of the original
claim do not accurately reflect the beneficial use of the water right as it existed prior to
July 1, 1973. Marks v. 71 Ranch, LP, 2014 MT 250, ¶ 15, 376 Mont. 340, 334 P.3d 373(citing Nelson v. Brooks, 2014 MT 120, ¶ 37, 375 Mont. 86, 329 P.3d 558).
¶8 The Kormans admit their first use of the reservoir was in 1977. They contend the
1977 agreement severed the water rights from land ownership and conveyed those rights
to the party grazing cattle. The water right was historically appurtenant to Salsbery
property. Appurtenant water rights pass with a conveyance of the land, unless
specifically exempted in that transfer. Section 85-2-403(1), MCA; Castillo v.
3
Kunnemann, 197 Mont. 190, 200, 642 P.2d 1019, 1026 (1982). Without a clearly
expressed reservation of the water right, it remains appurtenant to the land. Yellowstone
Valley Co. v. Associated Mortg. Investors, 88 Mont. 73, 81-82, 290 P. 255, 258 (1930).
The 1977 grazing agreement was not provided to the Water Court or this Court. As the
Kormans failed to show express language granting the water right, it remains appurtenant
to the Salsbery land. The Water Court did not err.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the Water Court’s interpretation and application of the law were correct.
¶10 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
4