Montana State Water Conservation Board.

Water resources survey, Carbon County, Montana: [resurvey] (Volume 1966) online

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Part I:


Part II:



Published by


Helena, Montana - June, 1966




Part I

History of Land and Water Use

on Irrigated Areas


I 1 Counties Surveyed

Published by


Helena, Montana

June, 1966


Governor Tim M. Babcock
Wilbur White

Donald L. Delaney

Clyde Hawks —

Sid Kurth

A. D. McDermott

H. J. Sawtell

Everett V. Darlinton...
Hans L. Bille —


-Vice Chairman and Secretary


—.Director and Member

.Assistant Director

-Water Resources Engineer


June, 1966

Honorable Tim M. Babcock
Governor of Montana
Capitol Building
Helena, Montana

Dear Governor Babcock:

Submitted herewith is a consolidated report on a resurvey of Water
Resources for Carbon County, Montana,

This resurvey was undertaken to obtain up-dated information regard-
ing water rights and water use along the Clarks Fork of the Yellowstone
and its tributaries in Montana in order to insure more efficient admin-
istration of the Yellowstone River Compact between the State of Mon-
tana and Wyoming. The Compact became effective on January 1, 1950,
approximately 31/2 years after publication of the original survey, dated
May, 1946, and most water developments in Carbon County since the
date of the original study were unknown to the State until the resurvey
was completed.

The report is divided into two parts: Part I consists of history of land
and water use, irrigated lands, water rights, etc., and Part II contains
the township maps in the County showing in colors the lands irrigated
from each source or canal system.

Work has been completed and reports are now available for the follow-
ing counties: Big Horn, Broadwater, Carbon, Carter, Cascade, Chouteau,
Custer, Deer Lodge, Fallon, Flathead, Gallatin, Golden Valley, Granite,
Jefferson, Judith Basin, Lake, Lewis and Clark, Lincoln, Madison,
Meagher, Missoula, Musselshell, Park, Pondera, Powder River, Powell,
Ravalli, Rosebud, Silver Bow, Stillwater, Sweetgrass, Teton, Treasure,
Wibaux, Wheatland, and Yellowstone.

The office files contain minute descriptions and details of each individ-
ual water right and land use, which are too voluminous to be included
herein. These office files are available for inspection to those who are

The historical data on water rights contained in these reports can
never become obsolete. If new information is added from time to time as
new developments occur, the records can always be kept current and

Respectfully submitted,

A. D. McDERMOTT, Director
State Water Conservation Board


A survey and study of water resources involves many phases of both
field and office work in order to gather the necessary data to make the
information complete and comprehensive. Appreciation of the splendid
cooperation of various agencies and individuals who gave their time and
assistance in aiding us in gathering the data for the preparation of this
report is hereby acknowledged.


Edgar Gruel, Commissioner

Frank DeVille, Commissioner Elmer G. Duncan, Commissioner

Frank Danichek, Clerk and Recorder

Clara H. Timonen, Clerk of District Court

Albert W. Whited, Assessor Walter A. Sandine, Surveyor

James Kirby, Land Reclassification Office


Robert G. Dunbar.

Dr. M. G. Burlingame.

R. A. Dightman

A. R. Southard __.

Robert Brastrup—
Phillip E. Farnes-

Grant W. BuswelL

George Pike _,

S. L. Groff

Herman F. Uhlrich.
H. Max Stone„_^-._.

N. R. Tripp.

Victor George

Arthur DeVries.
0. F. Yedhcka-
Gerald Koch

Professor of Histoiy, Montana

State University

-.—Department Head of Histoi-y,

Montana State University

Meteorologist in Charge, U. S. Dept.

of Commerce, Weather Bureau

State Soil Survey Leader, Dept. of Plant

& Soil Science, Montana State University

County Extension Agent

Snow Survey Supervisor, U. S. Dept.

of Agriculture, S.C.S.

.-___ Office Engineer, U. S.

Geological Survey

District Engineer, U. S.

Geological Survey

_Chief of Ground-Water & Fuels Division,
Montana Bureau of Mines & Geology

__- Work Unit Conservationist, S.C.S.

District Information Office,

Dept. of Fish & Game

- Assistant Regional Forester,

U. S. Forest Service

Secretary, Antelope Basin Ditch

Secretary, Bailey Ditch Co.

Secretary, Bartlett Canal Co.

Secretary, Bridger Ditch Co.

Dry Creek Canal & Irrigation Co.
Sand Creek Canal Co.


John W. Ross-

Mrs. Monte Steffan,

Emil Kober

Mrs. Eli Prinkki

R. M. Williams.-_„.
Leatha Humiston.,...

Mike Gross

Leonard Bell.
Arthur Foust_

Secretary, Carbon Canal

(Ext. of Last Chance Ditch)
Orchard Canal Co.
Orchard Ditch Co.

Secretary, Clarks Fork &

Silver Tip Ditch Co.

^Secretary, Clear Creek Ditch Co.

Sec ret a ry, Consolidated Ditch Co.

-.Secretary, Danford Irrigation District

„ Secretary, Edgar Canal

(Ext. of Orchard Canal)

_^_ Secretary, Elbow Ditch Co.

Secretary, Finn Ditch Co.

Mrs. Ernest McGeorge.

H. A. Brabec ^. .

Ruby Roberts .-

— Secretary, Promberg Ditch Co.
.Secretary, Glennwood Ditch Co.
Secretary, Golden Ditch Co.

Mrs. William Webb-
Arthur Luoma

Ralph H. Jones

Mrs. Jerome Lant2„
Q. E. Chance

Secretary, Granite-Prosperity

Ditch Extension Co.

Secretary, Grove Creek Canal Co.

Secretary, Haara Ditch Co.

Helen St-?^mm

Helen Weatherford — .

Mrs. Glenn G. Prueninger_

Mrs. Joe Patek _-__

Virginia Boyer .__

Judith M. Cole ^-

James Kirby .__„.

Adam Stief „ _-

T. M. Dowell

E. W. Draper .

Mrs. Dale Greve

____Secretary, Highline Ditch Co.

Secretary, Holland Ditch Co.

Secretary, Inter-State Irrigation

& Mining Ditch Co.

Secretary, Joliet Irrigation Co.

-Secretary, Last Chance Ditch Co

.„___Secretary, Lincoln Ditch Co.

Secretary, Lynne Ditch Co.

Secretary, Mutual Ditch Co.

-Secretary, New First Chance Ditch Co.

Secretary, New Granite Ditch Co.

. Secretary, New Prosperity Ditch Co.

H. M. Rae

Mrs. Hilda Columbus

Mrs. Opal Reinhardt.

William Niemi .._

Vernon Zook

John W. Sherman

J. R. Daugherty

Mrs. Bertha Andrew.

-Secretary. Pleasant Valley Canal Co., Inc.

Secretary, Pryde Ditch Co.

Secretary, Riverview Ditch Co.

Rocky Point Ditch Co.

„ Secretary, Rock Creek-
Clear Creek Ditch Co.

Secretary, Rock Creek Water

Users Association

_.____„__ Secretary, Shoshone Project-

Frannie Division

Secretary, Weast Irrigation Ditch, Inc.

Secretary, West Fork Irrigation Co.

Secretary, White Horse Canal Co.

Secretary, Wills Canal Co.

Secretary, Youst Ditch Co.




Surface Water — „___ _ 1

Ground Water — ^ — ■ 4

Method of Survey _. 8

Part I

History and Organization — ____ __ — _- 10

Climate — — H

Soils - 14

Crops and Livestock ^— — — — ~— 15

Snow Surveys ~ 16

Stream Gaging Stations 17

Economic Mineral Deposits — 22

Soil and Water Conservation Districts—. _ 25

Fish and Game — — 27

Custer National Forest . ___-_ —_ — 29

Summary of Irrigated Land by River Basins

Counties Completed to Date . „-^ — 32

Carbon County 33

Irrigation Projects

Antelope Basin Ditch „— . 36

Bailey Ditch Company . ___ 36

Bartlett Canal Company 37

Bridger Ditch Company 38

Clarks Fork and Silver Tip Ditch Company„_„^ 39

Clear Creek Ditch Company 40

Consolidated Ditch Company _„-_— _ 41

Danford Irrigation District 43

Dry Creek Canal and Irrigation Company „__ 44

Elbow Ditch Company 44

Including New Granite, New Prosperity, and
Granite-Prosperity Ditch Extension Companies

Finn Ditch Company 47

Glennwood Ditch Company 48

Golden Ditch Company 49


Grove Creek Canal Company„„_

Haara Ditch Company ^, „„

Highline Ditch Company.,^

Holland Ditch Company

Inter-State Irrigating & Mining Ditch Company _

Joliet Irrigation Company,

Last Chance Ditch Company

Including the Carbon Canal Extension

Mutual Ditch Company _._

New First Chance Ditch Company

Orchard Canal Company.,

Edgar Canal-Extension of Orchard

Orchard Ditch Company

Pleasant Valley Canal Company, Inc

Pryde Ditch Company

Red Lodge-Rock Creek Project .

State Water Conservation Board

Riverview Ditch Company

Rock Creek-Clear Creek Ditch Company.
Rocky Point Ditch Company



Sand Creek Canal Company

Including Fromberg, Lincoln, and Lynne Ditches

Shoshone Project — Frannie Division . „_

Weast Irrigation Ditch, Inc _^

West Fork Irrigation Company

White Horse Canal Company

Wills Canal Company ^,__

Youst Ditch Company ^_

Water Right Data

Appropriations and Decrees by Streams

Part II





Maps Showing Irrigated Areas in Colors
Designating Sources of Supply




Our concern over surface water rights in Montana is nearly a century old. When the first
Territorial Legislature, meeting in Bannack, adopted the common law of England on Jaunary
11, 1865, the Territory's legal profession assumed that it had adopted the Doctrine of Ri-
parian Rights. This doctrine had evolved in England and in the eastern United States where
the annual rainfall is generally more than twenty inches. It gave the owners of land border-
ing a stream the right to have that stream flow past their land undiminished in quantity
and unaltered in quality and to use it for household and livestock purposes. The law restricted
the use of water to riparian owners and forbade them to reduce appreciably the stream
flow, but the early miners and ranchers in Montana favored the Doctrine of Prior Appro-
priation which permitted diversion and diminution of the streams. Consequently, the next
day the legislature enacted another law which permitted diversion by both riparian and
non-riparian owners. Whether or not this action provided Montana with one or two defini-
tions of water rights was not settled until 1921 when the Montana Supreme Court in the
Mettler vs. Ames Realty case declared the Doctrine of Prior Appropriation to be the valid
Montana water right law. "Our conclusion," it said, "is that the common law doctrine of ri-
parian rights has never prevailed in Montana since the enactment of the Bannack Statutes
in 1865 and that it is unsulted to the conditions here . . ."

The appropriation right which originated in California was used by the forty-niners to
divert water from the streams to placer mine gold. They applied to the water the same
rules that they applied to their mining claims — first in time, first in right and limitation
of the right by beneficial use. Those who came to the Montana gulches brought with them
these rules, applying them to agriculture as well as to mining.

The main points of consideration under the Doctrine of Prior Appropriation are:

1. The use of water may be acquired by both riparian and non-riparian landowners.

2. It allows diversion of water regardless of the reduction of the water supply in the


3. The value of the right is determined by the priority of the appropriation; i.e., first in

time is first in right.

4. The right is limited to the use of the water. Stream waters in Montana are the prop-

erty of the State and the appropriator acquires only a right to their use. Moreover,
this use must be beneficial.

5. A right to the use of water is considered property only in the sense that it can be bought
or sold; its owner may not be deprived of it except by due process of law.

The State Legislature has provided methods for the acquisition, determination of prior-
ity and administration of the right. No right may be acquired on a stream without diver-
sion of water and its application to a beneficial use. On unadjudicated streams, the Statutes
stipulate that the diversion must be preceded by posting a notice at a point of intended
diversion and by filing a copy of it within 20 days in the county clerk's office of the county

in which the appropriation is being made. Construction of the means of diversion must
begin within 40 days of the posting and continue with reasonable dihgence to completion.
However, the Montana Supreme Court has ruled that an appropriator who fails to comply
with the Statutes may still acquire a right merely by digging a ditch and putting the water
to beneficial use.

To obtain a water right on an adjudicated stream one must petition the District Court hav-
ing jurisdiction over the stream for permission to make an appropriation. If the other ap-
propriators do not object, the court gives its consent and issues a supplementary decree
granting the right subject to the rights of the prior appropriators.

Inasmuch as the Montana Laws do not require water users to file official records of the
completion of their appropriations, it becomes advisable as soon as the demand for the
waters of a stream becomes greater than its supply, to determine the rights and priorities
of each user by means of an adjudication or water right suit. This action may be initiated by
one or more of the appropriators who may make all the other claimants parties to the suit.
Thereupon the Judge of the District Court examines the claims of all the claimants and is-
sues a decree establishing priority of the right of each water user and the amount of water he is
entitled to use. The court decree becomes in effect the deed of the appropriator to his water

Whenever scarcity of water in an adjudicated stream requires an allocation of the supply
according to the priority of rights, the Judge, upon petition of the owners of at least 15
percent of the water rights affected, must appoint a water commissioner to distribute the
water. Chapter No. 231, Montana Session Laws 1963, Senate Bill 55 amended Section 89-
1001 R.C.M. 1947, to provide that a water commissioner be appointed to distribute decreed
water rights by application of fifteen percent (157o) of the owners of the water rights
affected, or, under certain circumstances at the discretion of the Judge of the District Court
— "provided that when petitioners make proper showing they are not able to obtain the
application of the ow^ners of at least fifteen percent (15%) of the water rights affected, and
they are unable to obtain the water to which they are entitled, the Judge of the District Court
having jurisdiction may, in his discretion, appoint a water commissioner." After the Com-
missioner has been appointed the Judge gives him instructions on how the water is to be
apportioned and distributed in accordance with the full terms of the decree.

The recording of appropriations in local courthouses provides an incomplete record of
the water rights on unadjudicated streams. In fact, the county records often bear little re-
lation to the existing situation. Since the law places no restriction on the number or ex-
tent of the filings which may be made on an unadjudicated stream, the total amount of water
claimed is frequently many times the available flow. There are numerous examples of
streams becoming over appropriated. Once, six appropriators each claimed all the water
in Lyman Creek near Bozeman. Before the adjudication of claims to the waters of Prickley
Pear Creek, 68 parties claimed thirty times its average flow of about 50 cfs. Today, the Big
Hole River with an average flow of about 1,000 cfs. has filings totaling 173,912 cfs. A per-
son is unable to distinguish in the county courthouses the perfected rights from the unper-
fected ones since the law requires no official recordation of the completion of an appropria-
tion. Recognition by the courts of unrecorded appropriations adds to the incompleteness of
these records. To further complicate the situation, appropriators have used different names
for the same stream in their filings. In Montana many of the streams flow through several
counties; consequently, water right filings on these inter-county streams are found dis-


tributed in two or more county courthouses. Anyone desirous of determining appropria-
tions on a certain river or creek finds it difficult and expensive to examine records in
several places. In addition, the records are sometimes scattered because the original nine
counties of 1865 have now increased to 56. As the original counties have been divided and
subdivided, the water right filings have frequently not been transcribed from the records
of one county to the other. Thus, a record of an early appropriation in what is at present
Powell County may be found in the courthouse of the original Deer Lodge County.

It can readily be seen that this system of recording offers little protection to rights in
the use of water until they are determined by an adjudication. In other words, an appro-
priator does not gain clear title to his water right until after adjudication and then the title
may not be clear because the Montana system of determining rights is also faulty. In the
first place, adjudications are costly, sometimes very costly when they are prolonged for
years. It is estimated that litigation over the Beaverhead River, which has lasted more
than twenty years, has cost the residents of the valley nearly one-half million dollars. In
the second place, unless the court seeks the advice of a compent irrigation engineer, the ad-
judication may be based upon inaccurate evidence. In the third place, if some claimant has
been inadvertently left out of the action, the decree is not final and may be reopened for
consideration by the aggreived party. Another difficulty arises in determining the owner-
ship of a water right when land under an adjudicated stream becomes subdivided in later
years and the water is not apportioned to the land by deed or otherwise. There is no pro-
vision made by law requiring the recording of specific water right ownership on deeds and

The Legislative Session of 1957 passed Chapter 114 providing for the policing of water
released from storage to be transmitted through a natural stream bed to the place of use. The
owner of the storage must petition the court for the right to have the water policed from
the storage reservoir to his place of use. If there are no objections, the court may issue the
right and appoint a water commissioner to distribute the water in accordance therewith.
This law applies only to unadjudicated streams.

Administration of water on adjudicated streams is done by the District Court, but it has
its drawbacks. The appointment of a water commissioner is often delayed until the short-
age of water is acute and the court frequently finds it difficult to obtain a competent man
for a position so temporary. The present administration of adjudicated streams which cross
the county boundaries of judicial districts creates problems. Many of the water decrees
stipulate head gates and measuring devices for proper water distribution, but in many in-
stances the stipulation is not enforced, causing disagreement among water users.

Since a water right is considered property and may be bought and sold, the nature of
water requires certain limitations in its use. One of the major faults affecting a stream after
an adjudication is the failure of the District Court to have some definite control over the
transfer of water rights from their designated places of use. The sale and leasing of water
is becoming a common practice on many adjudicated streams and has created serious com-
plications. By changing the water use to a different location, many of the remaining rights
along the stream are disrupted, resulting in a complete breakdown of the purpose in-
tended by the adjudication. To correct this situation, legal action must be initiated by the
injured parties as it is their responsibility and not the Court's.

At one time or another all of the Western Reclamation States have used similar meth-


ods of local regulation of water rights. Now all of them except Montana have more or less
abandoned these practices and replaced them by a system of centralized state control
such as the one adopted by the State of Wyoming. The key characteristics of the Wyoming
system are the registration of both the initiation and completion of an appropriation in
the State Engineer's Office, the determination of rights and administration by a State
Board of Control headed by the State Engineer. These methods give the Wyoming water
users titles to the use of water as definite and defensible as those which they have to their

When Montana began to negotiate the Yellowstone River Compact with Wyoming and
North Dakota in 1939, the need for some definite information concerning our water and its
use became apparent. The Legislature in 1939 passed a bill (Ch. 185) authorizing the col-
lection of data pertaining to our uses of water and it is under this authority that the Water
Resources Survey is being carried on. The purpose of this survey is six fold: (1) to catalogue
by counties in the office of the State Water Conservation Board, all recorded, appropriated,
and decreed water rights including the use rights as they are found; (2) to map the lands
upon which the water is being used; (3) to provide the public with pertinent water right
information on any stream, thereby assisting in any transaction where water is involved;
(4) to help State and Federal agencies in pertinent matters; (5) to eliminate unnecessary
court action in water right disputes; (6) and to have a complete inventory of our perfected
water rights in case we need to defend these rights against the encroachments of lower
states, or Wyoming or Canada.


Ground water and surface water are often intimately related. In fact, it is difficult in some
cases to consider one without the other. In times of heavy precipitation and surface runoff,
water seeps below the land surface to recharge underground reservoirs which, in turn, dis-
charge ground water to streams and maintains their flow during dry periods. The amount
of water stored underground is far greater than the amount of surface water in Montana,
and, without seepage from underground sources, it is probable that nearly all the streams
in the state would cease to flow during dry periods.

It is believed that Montana's ground-water resources are vast and only partly developed.
Yet this resource is now undergoing an accelerated development as the need for its use in-
creases and economical energy for pumping becomes available. Continued rapid develop-
ment without some regulation of its use would cause a depletion of ground water in areas
where the recharge is less than the withdrawal. Experience in other states has shown that
once overuse of ground water in a specific area has started, it is nearly impossible to stop,
and may result in painful economic readjustments for the inhabitants of the area concerned.

Practical steps aimed at conserving ground-water resources as well as correcting related
deficiencies in surface water laws became necessary in Montana. Prior to the Legislative
Session of 1961, there was no legal method of appropriating ground water. Proposed ground-
water codes were introduced and rejected by four sessions of the Montana Legislative Assem-
bly in 1951, 1953, 1955, and 1959.

In 1961, during the 37th Legislative Session, a bill was introduced and passed which cre-
ated a Ground-Water Code in Montana. (Chapter 237, Revised Codes of Montana, 1961.) This
bill became effective as a law on January 1. 1962, with the State Water Conservation Board
designated as "Administrator" to carry out provisions of the Act.

Some of the important provisions contained in Montana's New Ground- Water Law are;

(a) "Ground- Water" means any fresh water under the surface of the land including the
water under the bed of any stream, lake, reservoir, or other body of surface water. Fresh
water shall be deemed to be the water fit for domestic, livestock, or agricultural use. The

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Online LibraryMontana State Water Conservation BoardWater resources survey, Carbon County, Montana: [resurvey] (Volume 1966) → online text (page 1 of 11)