Policies of the BBWA
Water Rights
The Montana Constitutional Convention of 1972 reserved all water rights to ownership of the State of Montana. It further decreed that individuals may file for a use right based on historical or filed usage. In 1979, the Montana Legislature passed Senate bill 76, a law authorizing a process to adjudicate claims of existing water rights. BBWA has filed for the association’s historical use and continues to be involved in the adjudication process. The water usage right is filed in the name of BBWA. Stockholders of BBWA have a proportional share of the usage right held by BBWA, their individual share is defined by our bylaws as proportional to the quantity of capitol stock held on the basis of one cubic foot of water per second of time for each one hundred acres (one share = one acre) of land. Additional amounts up to three cubic feet per second per 100 acres are allowed by the bylaws.
The board of directors is authorized to determine from time to time if there is water in the company’s ditch, which is in excess of that required by the stockholders then using water. If they determine that there is any excess of such water, they may enter into contracts with persons in control of nearby lands for the sales to them of such excess water to be removed from the company’s ditch by pump or by gravity flow. The amount which shall be charged for such water may be from time to time fixed by directors and such charges may be based, among other things, upon the amount which is to be used by the purchaser, the difficulty of apportioning or delivering it to the particular buyer and the probability that the wasting of such water might cause damage to the company’s ditch. All such contracts shall specifically provide that such sale is subordinate to the use of water by the stockholders of this company and that whenever the stockholders have need for such water, the use by the purchaser will be limited, suspended or terminated at the discretion of the BBWA.
The purchasers of excess water from this company may include other ditch companies as well as individuals.
5/30/91 Requests for Water rentals, stock purchase, and requests for transfer of shares from Treasury stock may be submitted to the board at their next regular board meeting.
IRRIGABLE LAND
No land shall be classed as non-irrigable on which irrigation water is applied by any means whatsoever for the purpose of growing crops, pasture, or supplying water for livestock or other beneficial use. No deductions shall be made for the rights-of-way of country roads or irrigation canals or ditches.
That where fractional shares of stock are issued and the total holding of stock by any one stockholder is less than one share; such fractional share shall be treated as one whole share for assessment purposes.
05/31/2005 – We do not sell shares on land that was not historically irrigated in 1974, the time we installed the Lateral Measuring Devices.
3/31/92- Small tracts of land that has not previously had shares and lays above the main canal or laterals should be put on a “Water Rental “ basis; however, it is left to the discretion of the board of directors’ of BBWA.
MEASURING WATER
1/31/74: A special committee recommended to the Board of Directors: Water delivered from the main canal to the laterals is measured and an accurate record is kept of water delivery. This record is to be made available to any stockholder upon request at BBWA office.
The measurement of the water provided in each company lateral is measured by the use of permanently installed Parshall Flumes. The amount of water provided to each lateral is based on 2 c.f.s. per one hundred acres of land
If a group of water users, under one lateral, wish to measure water on an individual basis, within their group, they may purchase the necessary equipment themselves. No portion of this cost will be borne by BBWA. Any installation of a permanent nature must be installed in such a manner that it will not interfere with cleaning and maintenance of the ditch. No structure should impede the flow of water. Final approval of any permanent installation in a BBWA ditch would rest with the Board of directors.
POINT OF DELIVERY
The By-laws refer to the Point of Delivery. The basic concept is that it is the Association’s responsibility to provide the Stockholder’s Share of water to the “Original Point of Delivery”. It then is the Stockholder’s responsibility to use the water for the intended purpose including maintaining and controlling appurtenances and guide the excess water to suitable natural drains, drain ditches or back into the company system, whichever is the most practical. The stockholder is prohibited from allowing waste to run off on Contiguous land, nor to spread out in the low places or in any manner to run to unnecessary waste.
The Point of Delivery is under BBWA’s absolute control. The control structure may be opened, closed or adjusted by BBWA and may be locked by BBWA in any position allowed by our By-Laws and this Policy Statement.
The Original Point of Delivery is defined in the by-laws as the point on the main canal or a company maintained branch or lateral thereof, as the Directors may deem most practical for the irrigation of the lands belonging to the stockholder. It has generally been accepted that this was the high point of a 40 acre or larger tract of land, on which there are 40 shares or more in good standing with the Company. If at any time there are less than 40 shares, the Company will no longer be obligated to maintain that ditch; it then becomes landowner’s responsibility. (Clarified by the Board of Directors on 4/28/2015)
HEADGATE: BBWA will install and maintain established head gates serving users off the main canal and company laterals to original point of delivery, and the responsibility of the Association will cease at that point. If a Stockholder wishes additional turnouts or wishes to relocate the established turnout, the request must be considered by the Board and if the board approves, will be completed at the cost of the Stockholder.
The association shall not be required to build or maintain any delivery box or other equipment for the delivery of water by pumping or other means than a gravity flow, from the established elevation of aforesaid box.
The purchaser shall without expense to the Company, construct necessary ditches to convey any surplus or wastewater to some lateral of the above mentioned irrigation system, which may be reached by a gravity flow from the land hereinabove described. But the purchaser shall not be required to construct such waste ditch or ditches for a greater distance than one half mile.
SHUT OFF VALVES: Meeting 10/26/89 – Some water users on the main canal did not have shut off valves on the pipes from the main canal and if one broke during the irrigation season we would have to turn the water off in the main canal in order to avoid damages. Board moved that we inform all users that they must have shut off valves on any pipe serving their property whether water is delivered by gravity flow or by siphon.
5-25-1999. Tom Plath stated that some water users put in gated pipe in lieu of open ditches so they can get more head pressure, and they want BBWA to put in a check. He felt we should set a policy that we will not put in checks at our expense when a stockholder puts in pipe. The board concurred. Review of Company Policy was looked at – BM 7/30/2019 – Tom wanted to also add that if adding a check, party then becomes responsible for run over and damages done by doing so. Josh Smith motioned this addition and Tom Plath seconded. Motion carried.
12/12/2003 – DITCHES INSTALLED TOO CLOSE TO RIGHT OF WAY OF OUR LATERALS. We should negotiate with them and inform them that we need a blade’s width for access to the ditch for maintenance purposes and if we fill the ditches that are directly adjacent to our ditch, we will not pull their ditches if we fill them.
1/15/2005 – RUN-OFF WATER DRAINING INTO CANAL: We are not part of the City storm drain system. They should design their project so that it doesn’t run on us. We should never willingly accept run-off water into the canal.
1/14/2006 – WATER RENTALS: Criteria for granting any rental request would depend on what lateral they are on. Depending on the location of the lateral, and if there is a continuous flow, we may grant the permit.
RESPONSIBILITY WHEN A FARM IS SUBDIVIDED
If a farm unit for which a delivery point has been established is subsequently subdivided into smaller units by the owner or owners of the farm unit, the following provisions apply:
(1). A plat or map of the subdivision must be recorded with the County and a copy filed with the irrigation company. The plat or map must show how the irrigation water is to be delivered to the irrigable acres in the subdivision.
(2) No further extensions or alterations in the company’s system will be provided to serve the subdivided units, except as agreed to by the district and at the landowner’s expense.
(3) Any additional construction necessary to deliver irrigation water to these units must be mutually worked out between the original owner of the farm units and the new owners of the subdivided unit at their expense.
(4) The BBWA will not bear any responsibility for the operation and maintenance of such internal systems, or the division of irrigation water after it is delivered to the original point of delivery.
(5) When land is subdivided into small tracts, the Association delivers water to the original point of delivery, and the responsibility of the Association ceases at that point. Whenever two or more persons take water from any distributing lateral beyond this point of delivery, to be conveyed to their respective premises for any distance through the same lateral or distributing ditch, the users must furnish labor, material and money necessary for the proper repair and maintenance of such lateral as is deemed necessary for the proper distribution of water among the several users. The cost of such repair and maintenance shall be apportioned among the several water users on the basis of benefits derived. The Association may withhold water from the lateral or distribution ditch if it is reasonably apparent that harm may occur if the lateral is not repaired. In the event repairs and maintenance work are not properly performed, BBWA has the right to shut off water to the lateral.
If the maintenance work contemplated has nothing to do with a dangerous condition in the lateral, it simply has to do with the good delivery of water, then in that event, the ditch company may continue to deliver water in quantities that will not create a danger. It is up to the user to make the repairs and to perform the maintenance. Statutory law indicates that they have the right to do so and such needs may be taken to court. The court may then order the landowner to allow the repair and maintenance.
a) 8/4/1960- Since provisions showing easements for irrigation ditches on plats for subdivisions, had not previously been made, the Secretary of the City-County Planning Board discussed solutions to be worked out cooperatively with the owner of the subdivision and the irrigation company. The following plan was adopted:
(a) That the engineers be required to show the centerline of all existing ditches on the plats.
(b) That the plat shows we have an easement for the
operation and maintenance on all these ditches.
(c) If the Subdivider desires to alter any existing ditches, he must contact the Water Association, and after reviewing the change, would grant the permission as long as it does not interfere with any other water user. A note should be attached to the plat showing the changes made.
7-27-1998- Board affirmed that our policy for water users is that our responsibility ceases at the original point of delivery and when a user within a subdivision has a problem with flooding, the rider should shut the gate off and the members within the subdivision should take care of the problem.
2-29-2000 – Water distribution within a subdivision. The board set a policy that “Whenever a new diversion is required, it should be installed behind a head gate and pump out of a stilling well. This will give us control of the gate. The pump should not exceed the capacity of the original pump for the total acreage. They must work with their neighbors and regulate the water among the users as our responsibility would cease at the original point of delivery.”
REQUEST FOR WATER: (By-Laws- Article VIII, Section 6)
Whenever any stockholder desires his head of water from the company’s canal, said stockholder shall give the superintendent or the ditch rider ample notice (to be determined by the board of directors of the company), of his desire in order to give the superintendent or ditch rider ample time to properly regulate the flow of water in the main canal or lateral. When the said stockholder desires to discontinue the use of his head of water, said stockholder shall give the superintendent or a ditch rider ample notice, (to be determined by the board of directors of the company), of his desire to so discontinue the use of his head of water in order that the superintendent or ditch shall have ample time to properly regulate the flow of water in the main canal or lateral. (Determined time is 24 hours).
The ditch rider should document “Orders for water” (date ordered, date delivered, and date completed. This record should be kept on file in the office.
WASTE WATER
(a) No stockholder shall permit wastewater to run upon contiguous land nor water to run to unnecessary waste. Anyone allowing it to waste will be subject to having water shut off and the head gate locked. The ditch rider or the board of directors will take whatever action is necessary to enforce rules and regulations.
(b) If water is discovered escaping from any lateral ditch, which is supplied from the company’s canal, by reason of any break or overflow, the Supt. or any rider shall either completely shut off the flow of water into said laterals or reduce the volume of water in said lateral so as to prevent waste. Irrigators and those in charge of private ditches shall be requested to have all ditches in use in good order and repair so that there will be no excessive waste water. In case of a scarcity of water in the canal, it will be divided pro-rata among all persons entitled to the same. The placing of sand bags or any other kind of obstruction in the canal or interference in any way whatsoever with the canal or its appurtenances of with locked gates on the outlets of the canal are positively forbidden except to the officers and directors of the company.
MAINTENANCE FEES
When needed, the directors shall levy assessments upon the stock of the association sufficient to defray the costs of the Association. The following charges apply as of the date of this revision (January 2024). Water Rates & Assessments shall be set in accordance with Montana Law.
New Stock – per Share $200.00
Per User Fees (Fee Initiated Jan 14, 1937) $125.00
Per unit of Stock $30.00
Excess Water by acre – First Acre $300.00 ($36.50 if a stockholder)
Excess Water By Acre – additional acre $36.50
Stock Transfer Fee $15.00
Lost Certificate Fee $35.00
NSF *returned check fee $15.00
Credit Card Fee $8.00 admin fee + 3.29% + .10 FIB fee.
DUE DATE FOR WATER RENTAL FEES –
4/21/1983- Payments should be made by April 1st of each year as per Water Rental Agreement.
TRANSFER OF TREASURY STOCK
By BBWA’s Articles of Incorporation, the stock is appurtenant to the land described in the Stock Certificate. Stock is transferable by endorsement by the owner thereof, and the Company shall recognize no transfer of stock unless or until the certificate shall be surrendered to the Secretary and cancelled. The Secretary will issue a new stock Certificate to the new stockholder. Property Tax records will be verified.
Board Meeting 4/25/91: Transfers may be subject to restrictions regarding the delivery point and the method of irrigation at the discretion of BBWA.
Subdivision Provisions:
When land is subdivided, a stock certificate for each lot should be written which shows specifically the lot number, and the owner of the lot. If there is not enough shares to transfer one share per acre (depending on how many acres are in each lot) then any additional shares as needed must be purchased from the BBWA. If this is not complied with, then the company may withhold water to that particular lot.
Transfer of Stock to New owner when Shares are Delinquent:
(Annual Meeting – 2-12-91)
(1) Not withstanding the restriction against transferability for failure to pay assessment, the board of directors may, at its discretion notwithstanding prior actions to transfers of other stock from treasury stock when the following conditions have been satisfied:
(2) A determination is made that the transferee of stock is not the original owner or an entity owned directly or indirectly by the original owner of said stock.
(3) Transferee obtains fee simple title or equitable title to the land through a contract for deed through a benefit arm’s length transaction for market consideration upon the water, the subject of the stock transfer is to be used, on or before the date upon which the stock is transferred to the transferee.
(4) When the accumulated amount due on unpaid assessments, plus penalty and interest, exceeds the cost of the purchase of new shares, the board may determine it to be fair and reasonable to sell shares from the treasury stock on that particular piece of property, and cancel the delinquency charges and the old stock is retired.
(5) The original owner of stock or his heirs and assigns must assign the original shares of stock to BBWA.
POLICY FOR PICKING UP DELINQUENT SHARES AND NEW WATER RENTAL REQUESTS:
4/29/ 2003: In 1974 measuring devices were installed in the system. Acreage’s irrigated were computed from maps and the SCS set up a measuring system so the water could be distributed proportionally to the users from the laterals. These gauges determined the amount of water delivered to the laterals and included all users who were current on their assessments. After a discussion, Gary Davis moved that the board set the following new policy:
“If at the board’s discretion, they can determine that water can be delivered to delinquent property using the following baseline for determining the availability:
1. If any water assessments were paid after 1974.
2. The point of delivery must be at the lateral.
3. The company must approve the method of dispersal from the lateral.
4. The owner must obtain the necessary easements to get the water to their property.
5. The owner must provide adequate ditches for waste or drainage water so it will not affect the landowner below. “
1/02/2007 – Board established a policy not to reinstate abandoned shares on property within the outlining area of the City limits. They could issue “Water Rental Permits” at their discretion.
ASSOCIATIONS
5/22/86: Associations were formed when a subdivision formed a unit for BBWA to deliver water to and bill as one unit. This unit then charged the landowners in the unit for the water and associated delivery costs. Effective 5/22/1986 BBWA no longer will sell water to new Associations. Each landowner must be represented by a stock in the company. The number of shares of stock cannot exceed the number of original Shares.
Beginning January 1, 2022 Rates for ALL Associations within the Billings Bench Water Association will be raised to stay in line with all members of BBWA. (The equalization/user fee will be applied to all shares in each association who haven’t distributed their shares to the landowners within. IE: Association has 63 shares/ 113 users – they will be charged 63 equalization/user fees.)
SEEP
BBWA acknowledges that irrigation ditches by their nature do seep and an irrigation project does contribute to groundwater levels. Our predecessors realized that seep may have potential impact on landowners within the project boundaries and addressed seep in all the Water Deeds and the Land and Water Deeds issued to new landowners within our boundaries. Montana Code Annotated (85-7-2212) also addresses seep. The policy of BBWA is consistent with those documents that we are not liable for seep.
FENCES
BBWA has the right-of-way for ditches through lands covered under the land and water deed. This easement also gives BBWA a secondary easement which allows them to as much land on either side of the ditch as may be required to make all necessary repairs and to clean out the ditch at all reasonable times. Fences should be off BBWA right-of-ways. Gates must be provided to allow BBWA and its equipment access to the ditches on its right-of-ways – BEFORE INSTALLING EITHER PLEASE SPEAK TO THE SUPERINTENDENT.
In the operation and maintenance of ditches, BBWA will not repair or replace fences that were torn down so BBWA would have access to the ditch if gates have not previously been provided for, or if the fence was installed without the approval of BBWA. If the landowner does not comply with fencing regulations, the fences will be removed by BBWA.
TREES
BBWA has the right to operate and maintain our main canal and lateral systems. At times trees interfere with the flow of water or weaken our banks. At times a tree may block our access for maintenance or interfere with our efforts to maintain our system. When trees interfere with our operations or interfere with the safe delivery of water to our users, BBWA has the right to trim or remove the tree. If a tree poses a potential danger to individuals or property it is the obligation of the property owner to resolve the issue even if the tree is within our easement or right of way.
TAKING WATER WITHOUT AUTHORIZATION
It is illegal for unauthorized persons to use irrigation water.
It not only is unjust to other members of the association who have the right to have water regulated so that it can be distributed equitably to all of the water users, but it also constitutes a crime under Montana Law.
“Every person who shall, without authority of the owner or managing agent, and with intent to defraud, take water from any canal, ditch, flume or reservoir, used for the purpose of holding or conveying water for manufacturing, agriculture, mining or domestic uses, or who, without like authority, shall raise, lower, or otherwise disturb any gate or other appurtenance thereof used for the control or measurement of water, is guilty of a misdemeanor.
Penalty for violation is a fine of not less than $50.00 or more than $100.00 or imprisonment in the county jail or not more than six months or both such fine and imprisonment.
DAMAGES TO DITCH
STOCK destroying ditches –It is the duty as well as the right of BBWA to maintain the laterals, as well as to take such measures as may be necessary to prevent the ditches from being damaged to the extent that it interferes with the delivery of water. Both the law generally, as well as the by-laws and rules of BBWA, provide for our doing such repair work as may be necessary and assessing the land owner for damages caused by livestock grazing on ditch right-of-ways.
There is also a provision in the Montana law by which a person may be charged with a misdemeanor crime, for obstructing or interfering with the flow of water in an established ditch.
CLEANING DITCHES
Minutes of board meeting 3/10/1916; The Association maintains all the main laterals under the system. The term “main lateral” is intended to cover the entire lateral to the point where the last diversion is made, unless it is used by the Association as a waste way beyond that point, in which case the Association must maintain said waste way.
(Land and Water Deed – Paragraph “F”) –That the Purchaser shall use the water to be supplied by the Company to irrigate the lands hereinabove described, and for stock and domestic purposes incident thereto and for no other purpose whatsoever, and that said water shall not be permitted by the Purchaser to be used on any land except the land hereinabove described nor permitted to run off on contiguous land, nor to spread out in the low places of the land hereinabove described nor in any manner to run to unnecessary waste.
5/30/2006 – CULVERTS: Culverts are installed in lieu of open ditches for the landowners benefit. It is the landowner’s responsibility to clean and maintain all culverts placed in ditches. BBWA may, but has no duty to, repair, replace, or clean any structure and assess the landowner for the cost.
TRESPASSING ON RIGHT-OF-WAY
No trespassing is allowed on ditch right-of-ways in the city or the county-other than those authorized water users who must turn the water on and off! Violators, juvenile or otherwise, will be ticketed for misdemeanor criminal trespass and given a notice to appear in City court.
THROWING DEBRIS IN DITCHES
Any person who shall empty or place, or cause to be emptied or placed, into any such canal, ditch, flume, or reservoir, any rubbish, filth, or obstruction to the free flow of water, is guilty of a misdemeanor.
PONDS
5/30/2006 Water users at end of ditch allow spill water to dump into ponds. The landowner must apply to DNRC for a permit. The ponds must be structured to handle our wastewater.
PERMITS FOR CANAL AND LATERAL CROSSINGS
3/28/85- Any person who wants to place any facility, including utility lines, pipes, pipelines, culverts, bridges, buildings, etc. over, across, under, on or through BBWA’s canal, laterals and right-of-way and embankment thereof, or any person who encroaches or otherwise impairs BBWA’s canal, laterals, and embankment thereof, MUST FIRST OBTAIN A PERMIT FROM THE BBWA AND PAY A FEE FOR SUCH PERMIT.There are several purposes for the BBWA’s implementing this permit system including:
(a) The BBWA has primary and secondary easements for its canal, lateral, and embankments thereof, which easements are a property right of BBWA, which cannot be disturbed or taken, or used without just compensation and approval of BBWA. Montana law, Section 70-17-1112 MCA, provides that a ditch company has a secondary easement to enter, inspect, repair, and maintain a canal or ditch. Montana law also provides that no person may encroach or otherwise impair any such easement for a canal or ditch. Montana law also provides that any encroachment or impairment of the BBWA’s canal, laterals, and embankment, and easements thereof, require prior written consent of the ditch company.
(b) The BBWA must have control over its ditches, laterals, and embankments, and right-of-way in order to insure the safe, and efficient operation and maintenance thereof, Because the City of Billings and surrounding area has, and is growing, around the BBWA’s canals and laterals, BBWA believes it is necessary to strenuously implement and enforce this permit system in order to maintain proper control over its canal.
(c) The BBWA believes that it is necessary to strenuously implement this permit system in order to establish and standardize its record of any and all encroachments and disturbances, for the future safe and efficient operation of the canal.
(d) The BBWA has found that with the increasing number of encroachments, disturbances, and facilities, on, over, across, through, or near its canal, laterals, and embankment, and right-of-way thereof, it has greatly increased BBWA’s time, expense, and exposure to problems. This permit system is designed to mitigate and compensate for such time, expenses, and problems.
11/23/2004 – If crossing is a replacement – we require a permit and waive the fee (except recording fee)
5/30/2006 – FEE FOR PERMITS CHANGED: Board will consider each application on a case-by-case basis. For permits within subdivisions and within City limits where liability is greater, the fee would be $500.00 plus recording for lateral crossings and $1,500.00 plus recording fees for crossings on the main canal. We could modify the fee for landowners outside the city limits.
2/8/2005 –SUSPENDING WATER DELIVERY: When cost of delivering or defending the right to deliver water to the affected shares becomes excessive and causes an undue financial burden to the Corporation. (See amendments to By-Laws per annual meeting of Stockholders – 2/8/2005)
2/10/2004 – REQUIRING A BOND: Information regarding requiring a bond from contractors for any encroachment on BBWA properties. The permit would require
1. The permittee enter into a written contract with the contractor responsible for performing the work.
2. That the contractor provides a performance, labor and material payment bond.
3. The bond must specifically list BBWA, as a dual oblige in conjunction with the permittee.
4. The bond must include a one-year warranty from the time of completion of the project.
5. That prior to commencing work, BBWA must be provided with signed originals of the contract and bonds.
ALTERNATIVE: We require an insurance binder listing BBWA as named insured for a period of two years with a fixed amount of the damages. (An estimate of the amount required to remedy the problem).
3-28-2000 –BURIED FIBER OPTIC CONDUITS WITHIN THE RIGHT OF WAY EASEMENT OF BBWA. The line should be located so it is at least 15’ (fifteen feet) horizontally away from the water edge or at least 8’ (eight feet) under the bottom of the canal. A $1,000.00 crossing fee will be charged plus $1.00 for each additional lineal foot over 7700 sq. ft.
9/24/2002 – DISTURBANCES TO MAIN CANAL AND EMBANKMENTS – Shall be reclaimed by pouring a concrete slab three inches thick in the disturbed area, plus ten feet up-stream and ten feet down-stream from the disturbed area and one foot above the high water line. On bridges and foot-bridges BBWA requires that a concrete slab be poured under the bridges a distance of the length of the bridge, plus ten feet up-stream and ten feet down-stream from the structure to a foot above the high water line.
11/26/2002 – Concrete to be at least 3” thick.
DONATIONS
1/30/2001 –We do not donate to any program since we are a non-profit organization and feel we do not have the authority to use the stockholders money for these purposes. The stockholders should make any donations individually.
ATTORNEY’S OPINIONS
Attorney’s opinion regarding SELLING SHARES ABOVE CANAL:
12-20-94-“Any future above grade water user be given lease rights only, subject to the rights of below grade users and any other competing rights which take a priority as determined by a court of law. By doing so, we basically provide water to the extent we have it, and as long as we have it without creating long lasting legal rights. (Atty opinion attached to minutes of meeting 12-20-94)
TAX EXEMPT STATUS:
Attorney’s opinion regarding tax-exempt status. (See letter attached to meeting 12-23-94)
“BBWA is not a district created under Montana law. It is a corporate association created under Montana law. Therefore, it does not qualify for tax exemption under Section 15-6-201 or Section 85-7-2011, MCA. As a consequence, BBWA is not privileged to have the broad tax exemptions of Section 15-6-201 and 85-7-2011, MCA, but instead is limited to having only irrigation facilities exempt from taxation under Section 15-6-201, MCA.”
3-28-00 –REGARDING MAINTAINING CULVERTS UNDER ROADS WHERE THE DITCHES EXISTED PRIOR TO THE ROADS.
Attorney General’s opinion dated 1979. “When a city street is dedicated and opened to public use after the construction of an irrigation ditch that crosses the street, it is the duty of the county commissioners, pursuant to section 7-14-2204 (1) MCA to build and maintain any bridge or culvert necessary to the opening of the street over the ditch.” If we have a problem getting the County or City to maintain the culverts, we will inform them of this opinion and proceed as necessary to get them to do it.
12/12/2003 – Attorney wrote “In 1972 Montana Constitution provides that a local government unit adopting a self-government charter may exercise any power not prohibited by the constitution, by-laws, or by charter. The Courts will have to decide if their ordinance encroaches on our position that we are not responsible for these crossings. Our choice would be to rip up the road and install an open ditch. “
ABANDONING DITCHES 8/27/2002 –– Attorney’s opinion – Use form “Extinguishment of Servitude” as a procedure to release our easements. He questioned whether the by-laws allowed for the release of easements, and suggested that the servient estate return all water shares/stock concerning that portion of the ditch to BBWA.