The recent Montana Supreme Court hearing in Bozeman contained the following claim by an attorney representing James Cox Kennedy in reference to the water in the Ruby River running through his ranch.
His attorney claimed that the landowner not only owns the land under the river but the river itself as well as the air above the river.
He was immediately challenged by one of the justices who asked if he believed that the definition of water ownership in the Montana Constitution was unconstitutional. He answered, "Yes."
Following is what the Montana Constitution says about the water in our state." All surface, underground, flood and atmospheric water are property of the state for the use of the people."
Anyone acquiring land in Montana should be aware of this proclamation. Basically, water in its natural channel belongs to the public. Only after it is diverted for beneficial use as part of a valid water right does it transfer to private ownership.
Public water runs through private land throughout our state. The Montana Supreme Court saw fit to allow the public to enjoy the use of their water along with their fish by allowing anglers and others to move up and down the stream below the high-water mark. The court applied this to all streams in the state large enough to support water-based recreation. The Legislature of 1985 passed legislation consistent with the court's findings.
Perhaps those who are unhappy with this situation should move to another state.