Marks v. 71 Ranch, LP, 334 P.3d 373

71 Ranch (through predecessor Galt/Rankin) holds four Confederate Creek water rights (total 385 miner’s inches) decreed in 1940; original place of use was a downstream location later flooded by Canyon Ferry Reservoir.
In 1982 Galt filed Statements of Claim identifying a new point of diversion/place of use about 3 miles upstream; these claims are prima facie under § 85-2-227(1), MCA.
Donald C. Marks, a junior appropriator whose lands lie between the upstream and former downstream locations, objected to the claimed upstream point of diversion/place of use.
The Water Master found Marks failed to rebut the prima facie proof that the rights had been changed to the upstream location prior to July 1, 1973; the Water Court affirmed.
Marks’ three theories: (1) the Creek Rights were not beneficially used at the upstream location pre-1973; (2) the upper and lower creek are separate sources; (3) the rights were abandoned. The Water Master rejected all three for insufficient evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Marks rebutted prima facie proof that Creek Rights were beneficially used at the upstream location pre-1973	Marks: water commissioner records show deliveries ≤360 miner’s inches, so Creek Rights (385) were not used upstream	71 Ranch: Statements of Claim are prima facie; records are incomplete and unreliable to prove nonuse	Held: Marks failed to rebut; records had limited probative value and did not prove nonuse
Whether upper and lower portions of Confederate Creek are distinct water sources	Marks: creek ‘‘recharges’’ below Hwy 284; upper and lower hydrology differ	71 Ranch: Rankin Decree (1940) treats Confederate Creek as a single unified system; no reliable evidence of distinct sources	Held: Marks failed to show separate sources; Rankin Decree and lack of reliable evidence support unity
Whether Creek Rights were abandoned pre-1973	Marks: prolonged dormancy (no beneficial use shown) implies abandonment	71 Ranch: no reliable proof of nonuse or intent to abandon; prima facie claim stands	Held: Abandonment not proven — Marks’ evidence (same commissioner records) inadequate
Whether Water Court properly applied standards of review to Water Master	Marks: challenges Water Court’s conclusion that evidence was insufficient	71 Ranch: Water Court correctly applied clear-error review and affirmed Water Master	Held: Water Court correctly reviewed and affirmed Water Master findings and conclusions

Heavirland v. State, 372 Mont. 300, 311 P.3d 813 (2013) (standards for Water Court review of Water Master findings)
Weinheimer Ranch, Inc. v. Pospisil, 369 Mont. 419, 299 P.3d 327 (2013) (prima facie effect of filed water claims and burden on objector)
Nelson v. Brooks, 375 Mont. 86, 329 P.3d 558 (2014) (objector must show by preponderance that claim contents are incorrect)
Quigley v. McIntosh, 110 Mont. 495, 103 P.2d 1067 (1940) (water commissioner records typically reflect low-flow conditions)
Missoula Light & Water Co. v. Hughes, 106 Mont. 355, 77 P.2d 1041 (1938) (finality and weight of a prior decree)
Holmstrom Land Co. v. Meagher County Newlan Creek Water Dist., 185 Mont. 409, 605 P.2d 1060 (1979) (elements required to prove abandonment: nonuse and intent)
Axtell v. M.S. Consulting, 288 Mont. 150, 955 P.2d 1362 (1998) (pre-1973 law governs objections to historical water-right elements)