HomeMy WebLinkAbout1968-04-03-DEED RECORD SEARCH THE. CITY OF BOZEMAN
d 11 E. MAIN ST. PHONE (406) 586-2368
BOZEMAN, MONTANA 59715
April 3, 1968
Millington 0. Young, M.D.
312 North Willson Avenue
Bozeman, Montana 59715
Dear,Mr. Young;
Your letter addressed to Oscar Cutting, as City Manager
requesting my opinion of certain water rights in Lyman Creek
has been before me pending a search of the records.
From the deed record search it is apparent that you have
not acquired any water rights out of Lyman Creek for use on
your land in the south half of the southwest quarter of the
northeast quarter of Section 33, Township I South, Range 6
East, M.P.M. On the other hand from the judgment records of
the District Court it appears by a decree entered April 21
1896 that the City of Bozeman is entitled to the use of 23A 3/20
miners inches of the waters of Lyman Creek of which 150 3/20
miners inches has a priority as of September 1, 1864 and 88
inches has a priority as of May 1, 1881. By the same decree
Racheal Creek was awarded 8 6/10 miners inches diverted at the
headgate of the city and 30-4/10 miners inches diverted below
the city's headgate both with the priority date of 1884.
Your reference to the water rights of your neighbor (Huffine)
relates to an agreement between the City of Bozeman and Huffines'
predecessor, Peter 0; and Fanny R. Brenden under date of April
15, 1909, and reflects a possible misunderstanding of its pro-
vision. That agreement you will observe is explicit in recognizing
the prior right of the City of Bozeman to the full, exclusive and
unmolested use of 238 3/20 miners inches of the waters of Lyman
Creek, 'with the exception that in the case the party of the
second part (City of Bozeman) is not using and has no use for all
of said 238 3/20 inches of water during the time, and said first
parties (Huffines predecessors) may be desirous of using waters
from said Lyman Creek for the urpose of irrigation, said first
parties (Huffines predecessors may use the surplus of said
238 3/20 inches not used or needed by said city, for the purposes
of irrigating one time each year for a period not exceeding 14
days in any one year".
From the foregoing quoted paragraph, it is clear that your
neighbor Huffine may use only the "surplus of. said 238 3/20 inches"
at a time when it is "not used or needed by said city" and then
only for a period of not exceeding "14 days in any one year" for
the purpose of"irrigating one time each year".
HOME OF MONTANA STATE UNIVERSITY
GATEWAY TO YELLOWSTONE PARK
Millinggton 0. Young, M.D.
April 3, ' 1968
Page 2
With regard to the relative priority of the Creek and Brenden
rights, referred to above, your attention is also directed to case
numbered 12-4562 in the district court of Gallatin County, Montana
where on October 25, 1912 Peter 0, Brenden was enjoined for inter-
ferring with the prior rights of Racheal E.-Creek to use of the
waters in Lyman Creek, In other words, both the adjudicated
rights of the City of Bozeman and Racheal E. Creek are superior
and prior to any right of Peter 0. Brenden, and his successors,
to the use of the waters of Lyman Creek.
In view of the fact that the city 's water right for municipal
purposes. out of Lyman Creek is an old and established water right,
every effort will be made to protect the city in its continued
enjoyment and use of these waters.
Respectfully submitted
BEN E. BERG, City Attorney
BEB/rm
THIS AGRFFMFNT, made and entered into this fifteenth day .of,
April, 1909, by and between Peter 0. Brendan and "Pranden,
his wife, of Bozeman, Gallatin County, Montana, the,, parties of the -..,. ^
first part, and the CITY OF BOZFMAN, a Municipal corporation of the
State of Montana, the party of .the second part, witnesseth:
a difference has-here taXoro._.exist�� igeen the
parties hereto as to the rights of the respective patiearpto a
portion of the waters of Lyman Creek, being the ,creek near. said
City and in said Gallatin County from which said. second party ' .
obtains its waterssupply for its inhabitants, and both parties
being desirous of definitely and permanently settling all such-
,
differences, and making an exchange of certain -lands for.',,,,
mutual benefit of the parties hereto, and the better protection
of -the water supply of said city, , >
STOW T10M�FORF said first parties for and in.:consideration
of `;the sum of $433.30, lawful money of the United .States .tp them
in hand paid by second party, the receipt,.whereofS �{ hereby ;M
acknowledged, and the conveyance to them by second, party..of
certain portions of the Southeast Quarter of the Northwest ;~ ,:
Quarter, and the Northeast Quarter of the Southwest, Quarter of.
Section Twenty eight (28) Township One (1) South Range, Six East , ,
M.P.M. , in said Gallatin County, agree to convey to ,said :second
and do
party by deed of even date herewith, grant, , bargain,, sell,and -
convey unto said second party certain portions of Lots ,Two and '
Three in Section Twenty eight, Township One, South Range Six East
in said Gallatin. County, and particularly described_in ,said,deedj1.
c4ntaining 34,65 acres,. .,;
And first parties agree with second party, and its succes-
r
stirs and assigns, in consideration of the premises,;„for .,them
selves, their heirs, executors, administrators and assigns,,`,
to recognize and be bound by the water rights of. said -second party.
I
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to the waters of said Lyman Creek, .as fixed in a certain decree
dated 'April 21, 1896, ana entered in the District Court of' the
Ninth Judicial District of the State of Montana, In and for the
County of Gallatin, in a suit entitled Rachel E. Creek v. Bozeman
Water Works Company, which said Bozeman Water Works Company
is the
grantor and predecessor in interest of said second party,
—as _fully. and completely as if said first parties-, and their
grantors and predecessors in interest had been parties to . said-
suit; said first parties hereby recognize the right of second'
party to 238-3/20 inches, statutory measurement of the waters
of said Lyman Creek as the first right to the waters of said
creek, and that second party has the right to convey, all, of said
238-3/20 inches of water thru its pipes, conduits and reservoirs
from said creek to the City of. Bozeman, said 238-3/20 inches ' of
water to be measured at a point in said Lyman Creek about l feet '
up the stream from the present dare maintained by second party
across said Lyman Creek at the point where said second party
diverts the waters of Lyman Creek thru pipes from said creek to ^ "
its reservoir; and first parties agree with second party and its
successors and assigns, for themselves that they will; and their
heirs, executors, administrators and assigns shall, at all times
hereafter, permit said 238-3/20 inches of water to flow down said
Lyman Creek unmolested to said point designated as the place of
measurement, *hen there shall be as much as 238-3/20 inches of,
water flowing in said creek, and that when there is a less quan
tity of water in said creek, than 238-3/20 inches at said point
designated as the place of measurement, that all the waters of
said Lyman„Creek shall flow down the same for- said sec,on4 -party0 s.,:
use as aforesaid, unmolested by said first partA-es, their heirs,
executors, administrators or assigns; with the exception that
in case the said second party is not using and has no use for all.
of said 238-3/20 inches of water during a time , and said first
i
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parties y
be desirous of using water from said Lyman Creek for
the purposes of irrigation, said first parties may. use the
said City,
surplus of said 238-�3/20 inches not used or needed by period .
for the purpose of irrigating one time in each year fora pe .
not exceeding fourteen days in any one year.
_ x In consideration of the premises, sec,Ond party a �
ees
to ay first parties the sum of $433.30, laarful money upon the
p
execution of this agreement and deed from first parties herein
before mentioned, and second party further agrees to convey and
does by deed of even date herewith convey to first parties certain
portions of the Southeast Quarter of the Northwest Quarter, and
p �I
the Northeast Quarter of the Southwest Quarter of Section T�renty
eight,
Township One, South Range Six East, �. 1'• M. .1n said
Gallatin Coun
41.32. acres, and particularly describ-
ty, containing
ed in
said deed, subject to the right reserved to second party
e lines and reconstruct, if neces-
to maintain and repair the pip _
sary,t
or construct additional pipe lines across said 'land s con-
b $eland party, pursuant to said agreement; also subject
veyed y
right reserved to second party to Pass. thru and aver. said
to the gh
last mentioned land with team or other conveyance, for the..,pnrpose
of going to and from the said dam maintained b;*-said 'second
n Creek, for the hauling of material and
party a,c.."oss said Lyraa
d to the said City's
r , other necessary travel, said use to be confine
t in exec
-
use only, and the agents and ser�ralits of second party
such use shall at all times keep properly closed all gates
rising s road
and passageway and confine their travel to the travelled ,
k _
any is `maintained.
IN WITNESS Wj ' 02 the said parties of the first part have
j art has caused its
hereunto signed their names and said second ,p Y t Clerk
name and seal to be affixed hereunto by its Mayor....,
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duly authorized the day and year in this agreement first above
written.
(SEAS,)
i
_. CITY OF B ZED 4�e
By
ATTEST: 7
yor_TT .
ty Gler c.
State of Montana, }
) so.
County of Gallatin, }
On this 15th day of April, 1909, before me ,
X?",
a Notary Public in and for the St to of Montana, personally
appeared Peter 0. Brehden and
{his wife) , known to me to be two of the parties whose names are
subscribed to the within instrument, and acknowledged to me that
they executed the same.
.-IN VyI`CNESS Wi�OF I have hereunto set my hand and
affixed my notarial seal the day and year fir bo .
IT _AT
u is YW and o
My commission expir the State of Montana, residi g
on the / wday of at Bozeman.
State of Montana, }
} 8 s.
County of Gallatin,' }
On this 15th day of April, 1909, before me, Haxx-y A. Bolinger
a Notary Public in and for the State of Montana, personally
appeared Charles P. Manry,_ known to me to be..the Mayor of City
of Nozeman, the municipal corporation that executed the within
instrument, and acknowledged to me that such corporation executed
the same.
Z1� WI` N"ESS WHEREOF I have hereunto set my hand and
affixed--my notarial seal the day and year in this certificate
-first above written.
04. 0otar �1 is iri a54 f
-r the State of Montana,
My commissionk-e22�11
residing at Bozeman.
day of r19 0
LYIMAN CREEK WATER RIGHTS
Attachment Priority Date Amount Case No. of Decree Period of Use
1 Sept. 1, 1864 150 3/20 14I 7-1594 Continuous
2 May 1, 1881 88 MI 7-1594 Continuous
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MI : Montana miner inches.
Case Number is the reference to the decree filing at the Gallatin County Office of
the Clerk of Court.
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-made µand entered into this fifteenth day of
IM
C}9�. by and between Peter 0. Prenden ancluyL�-f-(/'j ?3renden,
his wife , of Rozernan, Gallatin Count y, Montana,, the parties of the
first part, and the CITY OF BO7'r4,TT 7i , a Municipal corporation of the
State of Montana, the party of the second part, witnesseth:
� %11UU'! S a, uiffe-rence: has heretofore existed between the
parties hereto as to the rights of the respective parties to a
portion of the waters of Lyman Creek, being the creek near said
City and in said Gallatin County from which said second party
obtains its waterssupply for its inhabitants, and both parties
being desirous of definitely and permanently settling all such
differences , ard making an exchange of certain lands for the
mutual benefit of the parties hereto , and the better protection
of the water supply of said city;
`TOW TIMM",F0 ,' said first parties for a?!d in con sideration
of the sum of 8433. 30 , lawful money of the United States to them
in 'hand paid bsr second party, the receipt whereof is hereby
acknowledged, and the conveyance to them by second party of
certain portions of the Southeast Quarter of the 2Yorthwest
Quarter , and the Northeast Quarter of the Southwest Quarter of
Section Twenty eight (28) Township One (1) South Range Six last ,
in said Gallatin County, agree to convey to said second
and do
party by deed o1 even date herewith, grant , bargain, sell and
convey unto said second party certain portions of Lots Two and
Three in Section Twenty eight , Township One , South Range Six East
in said Gallatin County, ano. particularly described in said deed,
containing 34. 65 acres;
And first parties agree: with second Marty, ana its succes-
ors and assigns, in consideration of the premises , for ther2-
selves , their heirs, executors , administrators and asgiCrio ,
to recognize and be bound by the crater riFahts of said second party
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to the waters of said Lyman Creek, as fixed in a certain decree
dated April 21, 1896, an,_L entered in the District Court of the
Ninth Judicial District of the State of Tiontana, in and for the
County of Gallatin, in a suit entitled Rachel E. Creek v. Bozeman
Water Works Company, which said Bozerlan Water Works Company
is the grantor and predecessor in interest of said second party,
-- as ..fully and Completely as if said first parties , and their
grantors and predecessors in interest had been parties to said
suit; said first parties hereby recognize the right of second
party to 238.43/20 inches , statutory measurement of the graters
of said Lyman Creek as thf, first right to the. waters of said
creek, and that second party has the right to convey all. of said
238-3/20 inches of water thru its pipes ,' conduits and reservoirs
from said creek to the City of Bozeman, said 238-3,/20 inches of
water to be measured at a point in said T,yman Creek about 150 feet
up the strearl from the present dan maintained by second party
across said LZn-un Creek at the point where said second party
diverts the waters of 7,vma.n Creek thru pipes from said creek to
its reservoir; and first parties agree with second party and its
successors and assir;ns , for themselves that tfiey wi.1:12- and their
heirs , executors , adriiniotratorfi and as.sigris shale , at all times
hereafter permit oaid 238--3A0 inches of rater to flow down said
Lyrian Creek unmolested to said point designated as the place of
measurement , trhen there shall be as much as E 38-3f�;0 inches of
water flowing in said creek, and that when there is a leso quan-
tity of water in said creek, than 238-3/20 inches at said point
designated as the place of measurement , that all the waters of
said Lyman Creek shall flow down the same for said second partir's
use as aforesaid, unmolested by said first parties , their heirs ,
executors, administrators or asBigns; with the exception that
in case the said second party ii; not using and has no use for all
of said 238-3/20 inches of water during a time , and said first
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parties may be desirous of using water from said Lyman Creek for
the purposes of irrigation, said first parties may use the
surplus of said 238-3/20 inches not used or needed by said City,
for the purpose of irrigating one time in each year for a period
not exceeding fourteen days in any one year.
� In;:consideration of the premises, second party agrees
to pay first parties the sum of N433. 30, lawful. money, upon the
execution of this agreement and deed from first parties herein-
before mentioned, and second part;" further agrees to convey and
does by deed of even date herewith convey to firet parties certain
portions of the Sout.lieast Quarter of the Northwest Quarter, and
the Northeast Quarter of the Southwest Quarter of Section Twenty-
eight, Township One , South Range Six East , 11. P. 11. in said
Gallatin County, containing; 41. 34 acres, and particularly describ-
ed in said deed, subject to the right reserved to second party
to maintain and repair the pipe lines and reconstruct, if neces-
sary, or construct additional pipe lines across said lands con-
veyed by second party, pursuant to said agrecrient; also subject
to the right reserved to ;second party to pars thru and over s .id
last mentioned land with team or other conveyance for the purpose
of going to and from the said dam maintained by said second
party across said LyMan Creek, for the hauling; of material and
other necessary travel , said use to be confined to the said City' s
use only, and the agents and servants of second party in exer-
cising such use shall at all. times keep properly closed all grates
and passageways and confine their travel to the travelled .road,
if any is maintained.
IN WITIMSS W EKBOF the said parties of the first part have
hereunto signed their names and said second party has caused its
name and seal to be affixed hereunto by its T.tayor ant City Clerk