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WATER and MINERAL RIGHTS IN MONTANA
LANDOWNERS NEED TO BECOME KNOWLEDGEABLE ABOUT WATER AND MINERAL RIGHTS
WATER RIGHTS
Water rights are a very important asset for many Montana landowners. Water rights can include surface irrigation water, spring water for livestock, wells for livestock, wells for irrigation and wells for domestic use. As is inferred by the word “rights”, water rights are actually a right to use the water. It is possible to lose the right to use the water through the process of abandonment.
The following is found in the Montana Constitution.
“All surface, underground, flood, and atmospheric waters within the
boundaries of the state are the property of the state for the use of its people
and are subject to appropriation for beneficial uses as provided by law.”
The key word in this statement is beneficial. An appropriator (aka user) must use the water to some sort of beneficial use and not just divert it from the creek for 10 feet and then put it back in the creek. Beneficial use is a bit of a moving target that is always being modified by the courts and the legislature.
Before purchasing property, a buyer needs to do some investigation on any water rights that may transfer with the property. Even if your property does not have water rights, if may have a ditch running though the property. This ditch may be someone else’s irrigation ditch and they have certain rights to maintain the ditch even though it is on your property. Typically these rights include the ability to clean and maintain the ditch to allow the free flow of water. You need to avoid building permanent structures near these ditches to avoid conflict.
Since the State of Montana owns the water, they are the government agency that keeps track of who owns what water right. The have a web site that you can look up all rights claimed by landowners. I use the word claimed, since not all water rights have gone through the adjudication process. The adjudication process was mandated by the 1976 legislature and is slowing going through the process. It is the responsibility of buyer to insure that the water rights claimed to transfer with the property and that the seller actually transfers the water rights. The state has a good computer database that is available though the internet. This site will inform you on who owns what water rights in a creek and the priority dates. Since Montana water rights are issued on a first in time first in right basis, it is very important to know how your water rights stack up in priority. You may have lots of water righted to you, but if another landowner has a earlier claim, you may run out of water sooner than you had planned. Take the time to visit with other users on the creek to determine when the typical cut off date is.
Bottom line is to learn about water rights, ditch rights, measuring water, and water law. It is very important for your property and to make a sound purchasing decision.
MINERAL RIGHTS
Landowners need to be aware of mineral rights on their property. You may be surprised to find out that someone else owns the right to explore for minerals below the surface. Montana is known as the treasure state, and for good reason. There are many parts of Montana that are rich in mineral resource or methane gas.
Since the homestead days, many title changes have occurred. Sometimes the owners of the property that you now own may have mortgaged their mineral rights to get through a period of tough times or for some other reasons. You deed will spell out who owns the mineral rights and landowners need to be aware that mineral rights take precedence.
Check out the links on this page for more information.
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