Heavirland v. State, 2013 MT 313

Water right dating to 1904 for surface diversion from Muddy Creek (24.43 CFS, flood irrigation up to 645 acres) was used by the Weist family through 1961 but largely ceased by 1962.
Physical difficulties (steep slope, heavy clay, requirement to pump uphill, uneven flooding) and Ray Weist’s age/health contributed to cessation; intermittent dry years also limited use.
Three-phase power was run to the property in the late 1960s/early 1970s; Lyle Weist later returned (1975), filed a claim (1981), installed a center pivot (1981–82), irrigated until 1991, then sold the farm and water right to the Heavirlands who irrigated thereafter.
DNRC issue remarks and historical aerials suggested 0.00 irrigated acres in 1962, prompting the State to assert abandonment based on continuous nonuse from 1962–1982 and the Water Master to grant partial summary judgment for the State.
On evidentiary hearing the Water Master found abandonment; the Water Court applied 79 Ranch, concluded the claimants rebutted the presumption of abandonment, and the State appealed.

Issue	Heavirland/Weist (Claimants) Argument	State (Defendant) Argument	Held
Whether 79 Ranch abandonment standard governs pre-1973 water rights	79 Ranch is post-1973 and should not be applied retroactively to existing pre-1973 rights	79 Ranch applies and may be applied retroactively	Court held 79 Ranch governs; its incremental clarification of abandonment law may be applied retroactively
Whether claimants rebutted the presumption of abandonment for 1962–1982 nonuse	Specific evidence (physical irrigation difficulties, Ray’s age/health, three-phase power for future pivot, Lyle’s later pivot installation and financial hardship) excuses nonuse	Evidence is insufficient; Water Master’s findings that evidence was minimal are correct	Court held claimants presented sufficient, specific evidence to rebut the presumption and reversed the Water Master’s abandonment finding

79 Ranch v. Pitsch, 204 Mont. 426, 666 P.2d 215 (Mont. 1983) (long nonuse raises rebuttable presumption of intent to abandon; must produce facts excusing nonuse)
In re Musselshell River Drainage Area, 255 Mont. 43, 840 P.2d 577 (Mont. 1992) (confirmed retroactive application of 79 Ranch and explained specificity required to rebut presumption)
In re Clark Fork River Drainage Area, 274 Mont. 340, 840 P.2d 1353 (Mont. 1995) (to rebut presumption claimants must show facts or conditions excusing prolonged nonuse)
Power v. Switzer, 21 Mont. 523, 55 P. 32 (Mont. 1898) (abandonment requires both nonuse and intent; courts weigh conduct and circumstances)
Featherman v. Hennessy, 42 Mont. 535, 113 P. 751 (Mont. 1911) (intent to abandon may be inferred from circumstances and acts)