YC Properties v. Connolly

11/04/2026 DA 25-0661 Case Number: DA 25-0661 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 261 YC PROPERTIES LLC, Claimant and Appellant, v. SHARON CONNOLLY; BERNARD J. SPAAN; and PATRICK O. CONNELL, Objectors and Appellees. APPEAL FROM: Montana Water Court, Case No. 76HF-6002-P-2023, Honorable Stephen R. Brown, Chief Water Judge COUNSEL OF RECORD: For Appellant: Rick C. Tappan, Connlan W. Whyte, Tappan Law Firm, PLLC, Helena, Montana For Appellees Sharon Connolly and Bernard J. Spaan: Kyle J. Workman, Workman Law, PLLC, Hamilton, Montana For Appellee Patrick O. Connell: Patrick O. Connell, Self-Represented, Hamilton, Montana Submitted on Briefs: May 20, 2026 Decided: November 4, 2026 Filed: __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court. ¶1 Claimant and Appellant YC Properties, LLC (YC Properties) appeals the August 19, 2025 Order on Motions for Summary Judgment entered by the Water Court of the State of Montana, which granted the motions of Sharon Connolly (Connolly), Bernard J. Spaan (Spaan), and Patrick O. Connell (Connell) (together, Objectors or Appellees), for summary judgment. We address the following issues: 1. Whether the Water Court erred by considering post-1973 conduct to make its determination of abandonment. 2. Whether the Water Court erred by concluding unauthorized water use is the functional equivalent of an intent to abandon a water right. ¶2 We reverse and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Landowners Charles E. and Alma R. Vining (together the Vinings) filed Statement of Claim 76H 147812-00 with the Montana Department of Natural Resources (DNRC) on March 30, 1982. The statement of claim was for two groundwater wells on the Vinings’ property in Ravalli County for the stated purpose of “commercial beaver pens.” Notably, the property owned by the Vinings also contained a pond. ¶4 In January 1994, and prior to the entry of a preliminary decree, a claims examiner from the DNRC met with Alma Vining to discuss claim 76H 147812-00. After this meeting, the DNRC generated an implied claim for the second well in the statement of claim. This implied claim was identified as 76H 214439-00. Neither claim 76H 147812- 00 nor implied claim 76H 214439-00 included the pond on the property. 2 ¶5 Prior to the Vinings’ ownership, the property and claimed water rights were held by Sam A. Downing (Downing). Downing’s declaration of vested water right was recorded on December 31, 1963, which identified the wells and described their beneficial use as “domestic, stock water, and irrigation.” These wells would become the sources of the two claims at issue. ¶6 The Water Court issued the Preliminary Decree on January 14, 1998, which included claims 76H 147812-00 and 76H 214439-00 in the West Subbasin of the Bitterroot River 76HF (Basin 76HF). The Preliminary Decree recognized both of the Vinings’ claims as beneficially used for commercial beaver pens. With respect to claim 76H 214439-00, the Preliminary Decree described the flow rate as 100.00 gallons per minute (gpm) and the volume as 161.30 acre-feet per year (AF)1 with a point of diversion in the SWNWSE of Section 35, T6N, R21W, Ravalli County. With respect to claim 76H 147812-00, the Preliminary Decree noted that the point of diversion was located in the SENWSE of Section 35, T6N, R21W, Ravalli County and listed the flow rate as 100.00 gpm with the volume of 162.22 AF. The Preliminary Decree referenced the “feasible volume” for claim 76H 147812-00 was limited to 161.74 AF.2 One individual objected to a potential volume issue, but later withdrew his objection. 1 Section 85-20-1101(2), MCA, defines acre-feet as “the amount of water necessary to cover 1 acre to a depth of 1 foot and is equivalent to 43,560 cubic feet of water.” 2 An issue remark on the decree abstract for Claim 76H 147812-00 stated: THE CLAIMED VOLUME EXCEEDS MAXIMUM FEASIBLE VOLUME BASED ON THE FLOW RATE AND PERIOD OF USE, THE MAXIMUM VOLUME POSSIBLE IS 161.74 ACRE-FEET PER YEAR. 3 ¶7 To resolve the issue remark, the Water Court consolidated 76H 147812-00 into case 76HF-660. On January 28, 2005, Alma Vining filed an affidavit requesting that the volume be reduced from 162.22 AF to 39.77 AF. A Master’s Report and an order adopting the Master’s Report were entered in February of 2005, changing the volume to 39.77 AF. ¶8 Sometime in the 1990s, the Vinings stopped using the wells for beaver pens and instead started using the water for livestock and irrigation purposes. In 1995, the Vinings leased the property to a third party for the purpose of maintaining livestock. The Vinings did not apply for nor receive a permit or authorization from the DNRC to change the use of the appropriation rights from commercial beaver pens to irrigation and livestock. The Vinings sold the property with both wells to YC Properties in 2020. The DNRC water rights database thus lists YC Properties as the owner of both claim 76H 147812-00 and claim 76H 214439-00. ¶9 On February 15, 2023, YC Properties filed a motion with the Water Court to amend both claims, stating, “[t]he purpose of this motion is to add a historic groundwater pond (0.68 surface acres and 10 feet deep, capacity of 2.72 AF) that is part of the historical use of these wells[.]” The motion offered that water was historically pumped from the wells to the pond and aerial photos taken in 1954 confirm the pond’s historic existence. Accompanying the motion to amend was an affidavit from Alma Vining’s son, Robert Vining, which stated the pond had existed for many years and had been used in the beaver pen system. He further stated that “I remember that it would stay relatively full without water from the wells, but water from the wells was needed to provide enough flow to supply the down-gradient beaver pens.” 4 ¶10 Notice of the motion to amend the claims was published and, in response, Appellees filed objections. The Water Court issued a scheduling order on December 7, 2023, and on April 24, 2024, Objector Connell moved for a preliminary injunction seeking to prevent “any and all uses of water” under 76H 148812-00 and 76H 214439-00 or from the pond, alleging the claims had been abandoned. YC Properties moved to dismiss Connell from the case, arguing he lacked standing to object. The Water Court issued an order denying both pending motions. In the meantime, discovery was conducted and witness and exhibit lists were exchanged. ¶11 Connell then moved for summary judgment, arguing that “YC Properties LLC water rights 76H 147812-00 and 76H 214439-00 [were] abandoned under 85-2-404(2), MCA[.]” YC Properties opposed the motion and filed a cross-motion for summary judgment. In response to Connell’s motion, YC Properties argued that because no final decree had yet been entered on Basin 76HF, the abandonment provisions of § 85-2-404(2), MCA, were not applicable.3 In its own motion for summary judgment, YC Properties argued that “there is no dispute as to the pre-1973 existence of YC’s storage pond and the undisputed facts show that YC or its predecessors did not abandon its water rights.” Objectors Spaan and Connolly also filed a joint motion requesting summary judgment, arguing there was no genuine issue of material fact regarding whether YC Properties had abandoned its water rights. 3 Subsections (1) and (2) of the statute, addressing abandonment, “do not apply to existing rights until they have been finally determined in accordance with part 2 of this chapter.” Section 85-2-404(6), MCA. 5 ¶12 The Water Court issued its Order on Motions for Summary Judgment (Order) on August 19, 2025. The Water Court noted that Connell had incorrectly relied upon § 85-2-404, MCA, for his abandonment objection, but that the Water Court nonetheless had jurisdiction to adjudicate the abandonment challenge under § 85-2-227, MCA, and the common law. Under that authority, the Water Court found that YC Properties and its predecessors had not used the water rights for thirty years because they ceased using the water for commercial beaver pen operations in the mid-1990s, thus constituting “non-use” of the water and triggering a rebuttable presumption of an intent to abandon the water rights. Rejecting YC Properties’ argument that its beneficial uses of irrigation and livestock care could not constitute “non-use,” the Water Court reasoned that because YC Properties and its predecessors did not file a statement of claim for either livestock or irrigation use and did not apply for nor receive a permit or authorization from the DNRC to change the purpose of the water rights from commercial use to stock or irrigation use, any use of the water for those purposes was “unauthorized.” The Water Court reasoned that, “when unauthorized water use occurs for a sufficiently long period of time, the unauthorized use becomes the functional equivalent of intent to abandon a water right.” (Emphasis added.) The Water Court stated that YC Properties had “offer[ed] no evidence of commercial water use after the mid-1990s,” that is, for commercial beaver pens, and therefore did not rebut the presumption that it intended to abandon its water rights. Thus, the Water Court held that YC Properties had abandoned its water rights and granted summary judgment in favor of Appellees, dismissing YC Properties’ water claims. ¶13 YC Properties appeals. 6  STANDARD OF REVIEW ¶14 “This Court applies the same standards of review to decisions of the Water Court as it does to decisions of a district court.” In re Crow Water Compact, 2015 MT 217, ¶ 19, 380 Mont. 168, 354 P.3d 1217 (citation omitted). “We review the Water Court’s conclusions of law de novo for correctness and its findings of fact to determine whether they are clearly erroneous.” E. Bench Irrigation Dist. v. Open a Ranch, Inc., 2021 MT 319, ¶ 29, 406 Mont. 502, 501 P.3d 380 (citation omitted). ¶15 “This Court reviews de novo a district court’s grant of summary judgment, using the same standards applied by the district court under M. R. Civ. P. 56.” Mont. Trout Unltd. v. Mont. Dep’t of Nat. Res. & Conservation, 2025 MT 1, ¶ 13, 420 Mont. 85, 561 P.3d 995 (citing Smith v. BNSF Ry., 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639). Summary judgment is appropriate where there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). DISCUSSION ¶16 1. Whether the Water Court erred in considering post-1973 conduct to make its determination of abandonment. ¶17 YC Properties contends the Water Court erred by considering its failure to obtain authorization from the DNRC to change its water rights usage as evidence of abandonment “because [the Water Court] lacked jurisdiction to adjudicate or enforce alleged post-1973 changes under the Montana Water Use Act” (MWUA). YC Properties argues the DNRC holds the authority to adjudicate post-1973 changes to water rights, including whether YC Properties was eligible to change the use of its rights from commercial beaver pens to 7 irrigation and stock use pursuant to § 85-2-302, MCA. YC Properties thus contends the Water Court impermissibly acted as the enforcing entity of the MWUA. ¶18 Appellees Connolly and Spaan answer that “YC improperly conflates DNRC[’]s jurisdiction to enforce the MWUA to a prohibition against the Water Court’s reliance on compliance with the Act as evidence of abandonment.” Citing § 85-2-227(2), MCA (“[r]elevant evidence under this part may include admissible evidence arising before or after July 1, 1973”), Connolly and Spaan argue that “[t]he Water Court is statutorily authorized to consider all admissible evidence arising after July 1, 1973 in abandonment cases.” ¶19 The Water Court has exclusive jurisdiction over matters concerning the “determination and interpretation of existing water rights.” Section 3-7-501, MCA. An “existing water right means a right to the use of water that would be protected under the law as it existed prior to July 1, 1973.” Section 85-2-102(13), MCA; see also Heavirland v. State, 2013 MT 313, ¶¶ 17-27, 372 Mont. 300, 311 P.3d 813 (holding the protection of existing water rights does not preclude applying post-1973 judicial precedent). “The determination and interpretation of existing water rights includes, without limitation, the adjudication of total or partial abandonment of existing water rights occurring at any time before the entry of the final decree.” Section 3-7-501(4), MCA (emphasis added). ¶20 Importantly, whether a water right has been abandoned is a question of fact that depends on “‘the evidence of the conduct, acts, and intent of the parties claiming the usufruct of the water.’” Heavirland, ¶ 31 (quoting Power v. Switzer, 21 Mont. 523, 529, 55 P. 32, 34 (1898)). Thus, § 85-2-227(3), MCA, authorizes the Water Court to “determine 8 all or part of an existing water right to be abandoned based on a consideration of all admissible evidence that is relevant, including, without limitation, evidence relating to acts or intent occurring in whole or in part after July 1, 1973.” ¶21 As the exclusive authority on the determination of existing water rights, the Water Court was well within its jurisdiction when it entertained relevant evidence of post-1973 conduct in its consideration of whether the water claims 76H 147812-00 and 76H 214439- 00 had been abandoned. While YC Properties is correct to the extent that it argues the Water Court is not, as a matter of law, authorized to decide whether YC Properties violated the MWUA, the Water Court recognized this limitation, noting that “[t]he [c]ourt’s jurisdiction limits its determination of [the] motion to amend based on the water rights as they existed as of July 1, 1973. The authority to address post-1973 changes to a water right is outside the Water Court’s jurisdiction, as is fashioning a remedy for alleged illegal water use.” The Water Court stated that it “analyzes Connell’s argument under the authority of § 85-2-227, MCA[,]” and thereby properly exercised its exclusive jurisdiction pursuant to § 3-7-501(4), MCA. ¶22 In its task of determining whether YC Properties or the Vinings had abandoned the claims, the Water Court was permitted to consider all the relevant facts. Section 85-2-227(3), MCA. Without limitation, such record facts here included: the statement of claim indicated the purpose of 76H 147812-00 and 76H 214439-00 as for commercial beaver pens; the Vinings ceased using both claims for beaver pens in the mid- 1990s; the Vinings subsequently began using water pursuant to both claims for livestock and irrigation; the Vinings did not file a statement of claim for livestock and irrigation 9 purposes; and neither YC Properties nor the Vinings applied to the DNRC for the authority to change the use from commercial beaver pens to irrigation and livestock. In other words, the Water Court was permitted to admit evidence about post-1973 conduct into the factual record and, pursuant to usual evidentiary rules and considerations, rely on that evidence to determine the issue of abandonment. ¶23 Therefore, we hold the Water Court did not err by considering the post-1973 conduct of YC Properties and its predecessors in adjudicating the issue of abandonment. ¶24 2. Whether the Water Court erred by concluding unauthorized water use is the functional equivalent of an intent to abandon a water right. ¶25 Appellees ask that we affirm the Water Court’s order and hold that “sufficiently long periods of unauthorized use, without change authorization, is the functional equivalent of nonuse, triggering the rebuttable presumption that the unauthorized user intended to abandon it[s] water rights.” Their argument relies heavily on the order entered by the Water Court in In re Zier, No. 43N-3, 2016 Mont. Water LEXIS 5 (Mont. Water Ct. Nov. 22, 2016). ¶26 YC Properties contends the Water Court’s ruling sets a dangerous precedent that “fundamentally expand[s] abandonment doctrine,” which will “create[] a chilling policy where abandonment could be found when use and intent are present but complete regulatory compliance is not.” YC Properties suggests that if courts can infer non-use from these circumstances, “any technical noncompliance would silently morph into forfeiture, even while water is actively being used[.]” 10 ¶27 For a water right to be abandoned, two concurrent elements must be present: (1) non-use and (2) an intent to abandon. Twin Creeks Farm & Ranch, LLC v. Petrolia Irrigation Dist., 2020 MT 80, ¶ 14, 399 Mont. 431, 461 P.3d 91 (citation omitted). Determining whether a water right has been abandoned “requires weighing all the relevant factual circumstances of the case.” Heavirland, ¶ 32. ¶28 Consistent with the requisite elements, we have recognized that non-use of water alone does not constitute abandonment. 79 Ranch v. Pitsch, 204 Mont. 426, 432, 666 P.2d 215, 218 (1983) (“In determining the abandonment of a water right, this Court has often recognized the rule that mere nonuse of the water does not constitute abandonment.”). Rather, it must also be proven that the claimant intended to abandon his or her water right. 79 Ranch, 204 Mont. at 432, 666 P.2d at 218 (“To prove abandonment, one has to prove the other party intended to abandon his water right.”) (citations omitted). An intent to abandon “need not be proved directly, but may be inferred from all the circumstances of the case.” Skelton Ranch, Inc. v. Pondera Cnty. Canal & Reservoir Co., 2014 MT 167, ¶ 52, 375 Mont. 327, 328 P.3d 644 (citation and internal quotations omitted). “The circumstances must be such as to justify an inference of intention to abandon; in other words, to leave the property to be taken by any other person who chooses to do so.” Featherman v. Hennessy, 42 Mont. 535, 540-41, 113 P. 751, 753 (1911). ¶29 While not conclusive, non-use of water can be evidence of an intention to abandon and give rise to a presumption of abandonment. 79 Ranch, 204 Mont. at 432, 666 P.2d at 218. Specifically, “a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the 11 reasons for nonuse.” 79 Ranch, 204 Mont. at 432-33, 666 P.2d at 218. As the Water Court noted, the period of non-use that is necessary to raise the rebuttable presumption has been developed by case law. See Holmstrom Land Co. v. Meagher Cnty. Newlan Creek Water Dist., 185 Mont. 409, 424, 605 P.2d 1060, 1069 (1979) (stating 75 years of non-use is “clear evidence” of abandonment); 79 Ranch, 204 Mont. at 431, 666 P.2d at 217 (stating 40 years of non-use “is strong evidence of an intent to abandon a water right, and, in effect, raises a rebuttable presumption of abandonment”); In re Adjudication of Water Rights of Clark Fork River, 254 Mont. 11, 16, 833 P.2d 1120, 1123 (1992) (approximately 23 years of non-use raised a rebuttable presumption of abandonment); Skelton Ranch, ¶ 56 (a period of non-use ranging from 18 to 29 years was sufficient to raise a presumption of abandonment); and Smith v. Hope Mining Co., 18 Mont. 432, 438, 45 P. 632, 634 (1896) (stating 9 years of non-use is “certainly very potent evidence, if it stood alone, of an intention to abandon”). ¶30 In an abandonment dispute, “[t]he objector bears the initial burden of showing a long period of continuous non-use of the claimed water right.” Skelton Ranch, ¶ 53 (citation omitted). Once non-use has been factually established, the burden shifts to the claimant to provide evidence explaining or excusing the prolonged non-use of the particular water rights. 79 Ranch, 204 Mont. at 432-33, 666 P.2d at 218 (“In effect, such a long period of continuous nonuse raises the rebuttable presumption of an intention to abandon, and shifts the burden of proof onto the nonuser to explain the reasons for nonuse.”); see also In re Musselshell River Drainage Area, 255 Mont. 43, 51, 840 P.2d 577, 582 (1992). “To rebut the presumption of abandonment, the claimant must establish 12 some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire reflecting a gleam-in-the-eye philosophy regarding future use of the water.” Heavirland, ¶ 19 (citations and internal quotations omitted). ¶31 YC Properties argued to the Water Court that because its water rights had been continuously used for the recognized beneficial purposes of livestock care and irrigation, the Appellees could not prove prolonged non-use, and it maintains this position on appeal, arguing “Montana law is clear that changing the beneficial use of a right does not constitute abandonment so long as the appropriator continues to put the water to a ‘beneficial use.’” Connell answers that this Court should affirm the Water Court because “YC Properties, and its predecessor property owners either disregarded, or ignored Montana Law[,]” resulting in abandonment. Connolly and Spaan answer that “compliance with the [MWUA] is a requirement for continued beneficial use of water when determining abandonment.” They proffer that “the Court has the opportunity to establish a clear rule that a water user’s unauthorized use, without change authorization, subjects that user to the same risk of abandoning its right as if it did not use the water at all.” ¶32 Under the common law, when the owner of the water right abandons or ceases to use the water for its beneficial use, the right ceases. 79 Ranch, 204 Mont. at 431, 666 P.2d at 217 (citation omitted). It has been restated over the years that “application to a beneficial use is the touchstone of the appropriation doctrine.” In re Adjudication of Existing Rights to the Use of all Water, 2002 MT 216, ¶ 10, 311 Mont. 327, 55 P.3d 396 (citation omitted). “This fundamental principal has long governed the determination of water rights in Montana.” 79 Ranch, 204 Mont. at 431, 666 P.2d at 217 (citing Power, 21 Mont. at 529, 13 55 P. at 35). We have further held that “beneficial use shall be the basis, the measure and the limit of all rights to the use of water.” McDonald v. State, 220 Mont. 519, 530, 722 P.2d 598, 605 (1986) (emphasis in original). “Water rights have therefore been limited to the amount of water actually put to beneficial use, despite the amount of water diverted or claimed under the notice of appropriation.” 79 Ranch, 204 Mont. at 432, 666 P.3d at 218 (citing Conrow v. Huffine, 48 Mont. 437, 138 P. 1094 (1914); Peck v. Simon, 101 Mont. 12, 52 P.2d 164 (1935); Galiger v. McNulty, 80 Mont. 339, 260 P. 401 (1927)). One of the statutory definitions of “beneficial use” is “a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural, stock water, . . . [and] irrigation . . . .” Section 85-2-102(5)(a), MCA. ¶33 In reliance on its reading of Zier, the Water Court rejected YC Properties’ beneficial use argument. It reasoned that the use of the water for irrigation and livestock purposes by YC Properties and its predecessors was impermissible because they failed to apply for and obtain authority from the DNRC to change the water’s use from commercial beaver pens. Consequently, because the original statement of claim did not authorize irrigation and livestock, and because YC Properties or the Vinings did not amend the statement of claim to authorize irrigation and livestock use, such uses were “unauthorized.” Thus, the Water Court concluded that, “when unauthorized water use occurs for a sufficiently long period of time, the unauthorized use becomes the functional equivalent of intent to abandon a water right.” In essence, the Water Court held that a long period of water use inconsistent with the statement of claim, or which has not been authorized by the DNRC, constitutes, 14 or raises a presumption of, intentional non-use of the water as a matter of law, without considering other evidence. ¶34 We disagree with aspects of the Water Court’s reasoning, as well as the congruent argument made by Connolly and Spaan that we should adopt a new rule declaring “a water user’s unauthorized use, without change authorization, subjects that user to the same risk of abandoning its right as if it did not use the water at all.” This rendering of “non-use” is too narrow under the common law. Not using water in accordance with an existing statement of claim is not factually the same thing as not using the water at all, and the common law’s expansive inquiry into the circumstances requires consideration of both of these facts for purposes of determining whether an existing right has been abandoned. “To constitute abandonment there must be a concurrence of act and intent—the relinquishment of possession and the intent not to resume it for a beneficial use.” Thomas v. Ball, 66 Mont. 161, 167, 213 P. 597, 599 (1923) (citations omitted). “Abandonment is always a voluntary act, and it is a principle, quite uniformly recognized, that when once an appropriation of water has been completed, the courts will not lightly decree an abandonment of a property so valuable in a semi-arid region such as this.” Thomas, 66 Mont. at 167, 213 P. at 599 (citation omitted). Consequently, the Water Court erred by holding, as a matter of law, that “unauthorized” use of water is the functional equivalent to an intention to abandon the water which precludes consideration of the other circumstances.4 4 The Water Court also stated that the failure to file a statement of claim establishes a “conclusive presumption of abandonment of that right” pursuant to § 85-2-226, MCA. However, the conclusive presumption under § 85-2-226, MCA, arises when there is a “failure to file a claim of an existing right under 85-2-221(1).” Section 85-2-226, MCA. In turn, § 85-2-221(1), MCA, 15 ¶35 Our decision here is consistent with a full reading of Zier. There, Clarance Parker (Parker) was the predecessor of Betty Jean Zier and David Zier (the Ziers). Zier, at *1. Parker held claim 43N 20238-00 for irrigation use of wastewater generated from the north of his property by Allen Ranch’s flood irrigation system. Zier, at *1. Allen Ranch diverted water from Sage Creek to irrigate its land. Zier, at *1. Parker also held a second irrigation claim for groundwater from a pond. Zier, at *1. In the 1970s the Allen Ranch changed from flood irrigation to sprinkler irrigation, and this affected the physical availability of water for both of Parker’s claims, leaving him with insufficient water to irrigate. Zier, at *1-2. Consequently, Parker and Allen Ranch agreed to cooperatively divert water for irrigation of Parker’s property directly from Sage Creek. Zier, at *2. However, this practice ended in the early 2000s and no irrigation thereafter occurred on Parker’s property. Zier, at *2. The Water Court recognized two separate periods of “non-use” that it found to be sufficient to raise a presumption of an intent to abandon: (1) the period beginning in the late 1970s when Parker was diverting water from Sage Creek and the original sources of water were not used, and (2) a 15-year period after the 2000s when no irrigation occurred on the property at all. Zier, at *4. From these, the Water Court concluded the Ziers did requires “[a] person claiming an existing right . . . shall file with the department no later than June 30, 1983, a statement of claim for each water right . . . .” This subsection is thus addressing the failure to file the original statement of claim for an existing right prior to the statutory deadline. YC Properties’ predecessors filed such an original statement of claim for their two wells, from which, upon review by the DNRC, an implied statement of claim was generated for the second well, and therefore the statutory conclusive presumption of abandonment under § 85-2-226, MCA, does not apply here. 16 not overcome the presumption and therefore had intended to abandon their water rights. Zier, at *6. ¶36 Notably, non-use was not a contested issue in Zier; the Ziers conceded non-use of the water during both periods, including the years of actual non-use. Zier, at *1. In contrast, non-use in the present case is highly contested (YC Properties contends that it and its predecessors continued to use the water for a beneficial use and cannot be considered non-use, while Appellees argue unauthorized use cannot constitute a beneficial use and therefore must be a form of non-use). Further, the Zier Court did exactly what we are requiring here—it weighed the evidence supporting or inferring an intent to abandon against the evidence inferring no intent to abandon, including the Ziers’ assertion that they did not intend to abandon their rights. The Zier Court considered the Ziers’ failure to obtain a change authorization, reasoning that “[w]ithout an approved change application, Parker had no legal right to divert water from Sage Creek. The failure to comply with applicable law is evidence of intent to abandon a water right because Parker took no action to secure a lawful and permanent alternate supply once his primary sources became unavailable.” Zier, at *4 (emphasis added). Thus, the failure to obtain a change authorization was an evidentiary consideration for the abandonment determination in Zier, not a mandate of law. Further, important in Zier was that, during the period Parker was drawing water from Sage Creek to irrigate his land, he did not use the water assigned by his statements of claim at all, and thus the Water Court’s abandonment determination rested upon both the evidence of Parker’s failure to obtain a change authorization and his actual failure to physically use the water, including the subsequent 15-year period of non-use. Zier, at *5 (“Even if the 17 period of non-use was shortened when the claimants used an alternative source, there was still a 15-year period of non-use.”). Other evidence included the “sale or disposal of irrigation equipment, failure to replace an inoperable pump, failure to maintain existing ditches, failure to pursue a meaningful and permanent solution to address the inability to irrigate, and the lack of plan to resume irrigation in the future.” Zier, at *5. Zier thus supports this Court’s long held position that “intent, or lack of intent, can be drawn from the actions and inactions of the claimants and their predecessors.” Zier, at *4. Appellees omit from their arguments the full record evidence in Zier. Thus, even if Zier was binding precedent, a governing principle that “unauthorized use is the functional equivalent of nonuse” could not be properly drawn from its facts and holding. ¶37 Montana has a long historical common law governing water rights. “In Montana, the common law is the rule of decision ‘so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or statutes of Montana[.]’” Phipps v. Old Republic Nat’l Title Ins. Co., 2021 MT 152, ¶ 20, 404 Mont. 336, 489 P.3d 507 (quoting Haker v. Sw. R.R., 176 Mont. 364, 368-69, 578 P.2d 724, 727 (1978)). “The common law ‘does not control . . . where the law is declared by statute.’” Phipps, ¶ 20 (citation omitted). The Legislature has acted on occasion to revise the common law of water, and here, as noted above, it has enacted statutes that will apply different abandonment principles to claims that are finally determined and for which a final decree has been entered. See § 85-2-404(6), MCA. Included therein is a provision that will consider an appropriation right to be abandoned “if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not 18 complying with those terms and conditions,” thus narrowing for that purpose the common law abandonment inquiry. Section 85-2-404(1), MCA. That law is not effective for purposes of the rights at issue here because there has been no final decree. ¶38 We do not intend by our holding to excuse the unauthorized use of water and thereby incentivize or reward parties who fail to comply with the statutory obligation to obtain a change authorization when their water use changes. Rather, our holding is required by the common law and simply reaffirms two fundamental principles thereunder. First, abandonment of a water right remains a question of fact. See, e.g., § 89-802, Revised Codes of Montana, 1947. Second, “an appropriation of a right to the use of running water flowing in the creeks must be for some useful or beneficial purpose, and when the appropriator, or his successor in interest, abandons and ceases to use the water for such purpose, the right ceases.” Power, 21 Mont. at 529, 55 P. at 35. Therefore, in determining whether a claimant has abandoned its water rights, the Water Court must consider all the facts and circumstances of the case, as discussed above, including whether the claimant used the water in an unauthorized manner and whether the claimant continuously applied the water to a beneficial purpose. By reaching its conclusion regard the intent to abandon as a matter of law, and failing to consider evidence of YC Properties’ continuing beneficial use for the water, the Water Court erred in granting summary judgment in favor of Appellees. ¶39 We reverse the entry of summary judgment and remand this matter for such further proceedings as necessary to properly determine the abandonment question, and resolve any remaining objections filed herein, in accordance with this decision. 19  /S/ JIM RICE We Concur: /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON 20