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Be wary of unused water rights on a property

A water right can be a key element associated with many Montana properties. It grants the owner the legal right to take a certain amount of water from a specific source, for a prescribed use across a defined section of land. Some water rights have persisted for more than a century, surviving generations of change.

A water right doesn’t simply exist forever though. The owner of a water right can lose it if they’re not careful – creating a potentially unfavorable scenario for a property owner.

Use it or lose it

Water rights operate under a “use it or lose it” doctrine. This means the water right holder must put the water to beneficial use in order to retain the right. If they don’t, then it could be subject to abandonment. When might that happen? It could occur if:

  • The water right holder doesn’t use the water for years
  • Water is available from the defined source
  • There are no signs the water right holder intends to use the water

For example, if a water right holder is allowed to pump 8 cubic feet of water per second in order to irrigate a 100-acre field, but the fields have been untouched for many years and no irrigation equipment is actually set up to deploy the water, that may be grounds for abandonment.

Consider water rights when buying a property

If you own water rights, it’s important to make sure the water is being used the way it is stated with the Montana Department of Natural Resources and Conservation. Having someone challenge your water right can be quite a hassle, and you may lose a valuable right that affects the desirability of your property.

Similarly, if you’re considering buying new property in Montana, you will want to inspect any associated water rights thoroughly, potentially with the help of an attorney. You’ll want to not only see what the water right allows for, but also ensure it is being used – and not in danger of abandonment.

You wouldn’t want to purchase some land along with a water right, only to find out the water right is on the verge of being yanked away because it hasn’t been put to beneficial use.

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