A buyer from Oregon purchases a Montana ranch and assumes that, as the new surface owner, she automatically owns all water flowing through and adjacent to the property under the same riparian principles used in Oregon. After closing, she attempts to irrigate fields using a stream crossing her property, but the DNRC issues a cease-and-desist order because a downstream neighbor holds a senior appropriation right and the stream cannot satisfy both uses. Which of the following best explains the legal basis for the DNRC's action and the buyer's fundamental misunderstanding?

Question

Practice Of Real EstateState SpecificHARD

A buyer from Oregon purchases a Montana ranch and assumes that, as the new surface owner, she automatically owns all water flowing through and adjacent to the property under the same riparian principles used in Oregon. After closing, she attempts to irrigate fields using a stream crossing her property, but the DNRC issues a cease-and-desist order because a downstream neighbor holds a senior appropriation right and the stream cannot satisfy both uses. Which of the following best explains the legal basis for the DNRC's action and the buyer's fundamental misunderstanding?

Answer Options

A

The DNRC acted incorrectly because surface ownership in Montana always includes unrestricted use of all water on or adjacent to the property

B

The buyer's riparian rights assumption was valid, but she failed to register her riparian claim with the DNRC within 60 days of closing, forfeiting her right to use the water

C

Montana follows prior appropriation, not riparian rights; the buyer holds no water right unless she holds a valid appropriation with a priority date, and the senior downstream appropriator's right takes precedence over her surface ownership

D

The DNRC can only restrict water use on federally designated waterways, and the cease-and-desist was only valid if the stream was classified as a federal navigable water under the Clean Water Act