In Re the Adjudication of the Existing Rights to the Use of All the Water

delivered the Opinion of the Court.

¶1 The Montana Department of Fish Wildlife and Parks (DFWP) appeals a ruling by the Chief Water Judge on five pre-1973 water rights claims in the Missouri River basin. The five claims are based on diversions of water for purposes of fish, wildlife or recreation. The Water Court ruling refers to In the Matter of Dearborn Drainage Area *330(1988), 234 Mont. 331, 766 P.2d 228 (Bean Lake) in remarking on the potential invalidity of the claims. This Court invited submission of amicus curiae briefs and received briefs from: Estate of Eva S. DePuy; Montana State Council of Trout Unlimited; Montana Stockgrowers Association; Senator Lorents Grosfield; and the United States. Only DFWP can represent citizen interests in the adjudication process and, in light of our decision in Bean Lake, DFWP presently asserts only those fish, wildlife and recreation claims that involve diversions. To provide guidance to the Water Court, we must resolve the Bean Lake confusion and address not only the question of whether fish, wildlife and recreation uses are recognized as beneficial uses for appropriation purposes, but also whether a diversion is required for appropriation purposes.

¶2 We restate the issues as follows:

I. Was Bean Lake correct in its holding that “under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute?”

II. Does the Water Court’s use of the “Bean Lake remark” violate the Supreme Court’s Water Right Claim Examination Rules 5.II and 5.IV(l)(a)?

Jurisdictional Issues

¶3 The Water Court asserts that the DFWP’s appeal is procedurally defective. The Water Court points out that a Master’s Report was issued with regard to the five DFWP claims involved. The Master’s Report denied the DFWP’s requests, and after the ten-day objection period provided for in Rule 53(e), M.R.Civ.P., and Claim Examination Rule 1.11(4) lapsed, without any objection from DFWP, the Chief Water Judge adopted the Master’s Report. The Chief Water Judge correctly points out that when objections are filed, the Water Court researches the issues raised and issues an extensive written opinion which, in turn, facilitates review by the appellate court. Accordingly, the Water Court urges this Court to dismiss this appeal or, in the alternative, convert the appeal to a petition for declaratory relief or supervisory control. DFWP asserts that strict compliance with Rule 1.11(4) of the Claim Examination Rules is not necessary here since it has consistently and repeatedly objected to the Water Court’s insertion of its Bean Lake remark and that the Water Court has adopted an unwavering policy of rejecting DFWP’s arguments concerning this policy even when DFWP has filed objections to the master’s reports. Nonetheless, DFWP indicates that it has no objection to the Court’s *331reclassifying this appeal as a petition for declaratory relief or supervisory control.

¶4 While we agree with the Water Court that compliance with Rule 1.11(4) of the Claim Examination Rules is critical to effective appellate review, we determine, given that our decision in Bean Lake is the genesis of the alleged confusion which the parties seek to resolve, it is appropriate that we treat this matter as a continuation of the 1988 Bean Lake controversy wherein we exercised supervisory control. Accordingly, as we did in Bean Lake, we accept jurisdiction and exercise our power of general supervisory control over the Water Court, pursuant to Article VII, Section 2(2), of the Montana Constitution and Rule 17, M.R.App.P. Taking jurisdiction now on these purely legal issues will resolve confusion in our case law, promote judicial economy, expedite determination of existing water rights and assist in avoiding protracted litigation. McDonald v. State (1986), 220 Mont. 519, 524, 722 P.2d 598, 601.

Facts and Procedure

¶5 This case involves five pre-July 1, 1973, water appropriation claims in the Missouri River basin. DFWP filed the five claims based on diversions for fish, wildlife and recreation purposes for adjudication in the Water Court. The Water Court inserted in the abstracts for the claims a remark (hereafter “Bean Lake remark”) stating:

There is a question as to the validity of this claimed right. In the Matter of the Dearborn Drainage Area, 234 Mont. 343 (1988) (the Bean Lake case) the Montana Supreme Court stated: “It is clear therefore that Tinder Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute.”

¶6 Without ruling on any issue, the Water Court’s remark highlights the conflict in our case law regarding whether appropriations of water for fish, wildlife and recreation purposes are valid under the prior appropriation doctrine before 1973.

¶7 DFWP objected to the insertion of the remark and requested that the Water Court remove the remark from the abstracts of the five claims. Following submission of briefs and a hearing, the Water Court denied DFWP’s objections and retained the Bean Lake remark. The Water Master issued a “Report and Memorandum and Order” finding that the five claims fell within the parameters of the Bean Lake decision and that therefore the insertion of the Bean Lake remark was appropriate. DFWP did not object to this Report, and the Chief Water *332Judge subsequently adopted the Master’s Report.

¶8 After repeatedly objecting to the insertion of Bean Lake remarks and receiving consistent denials in the Water Court, DFWP appealed to this Court for resolution of the conflict in our case law as to whether appropriations for fish, wildlife and recreation uses are valid water rights under prior appropriation law. The Water Court objected to appearing as respondent in this case, and this Court issued an order that the Water Court, as author of the Bean Lake remark, was a proper respondent in these proceedings. Given the on-going and statewide significance of the issue, we invited all interested parties to submit amicus curiae briefs.

DISCUSSION

I. Was Bean Lake correct in its holding that “under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute?”

Water Law in the American West: The Doctrine of Prior Appropriation

¶9 Miners in California developed a water use system as an alternative to the riparian water system prevalent in England and the eastern United States. While riparians allowed owners of land abutting the water source to control it, the more arid climes of the American West required a different approach. Prior appropriation, adapting flexibly to the needs of a developing society, allowed diversion to a distant location and simply required use of the water for a beneficial purpose. Western states adopted the miners’ customs through both court decisions and codification, and the doctrine of prior appropriation became the law of the western states. A. Stone, Selected Aspects of Montana Water Law 7 (1978); Christine A. Klein, The Constitutional Mythology of Western Water Law, 14 Va. Envtl. L. J. 343, 347-48 (1995).

¶10 The common law elements of a valid appropriation are intent, notice, diversion and application to beneficial use. However, in Montana, as in many western states, the flexibility of the prior appropriation doctrine has allowed acquisition of the right to use a specific amount of water through application of the water to a beneficial use. A. Stone, Montana Water Law (1994). Judicial opinions and scholarly commentators have repeatedly stated the rule that application to a beneficial use is the touchstone of the appropriation doctrine. See, e.g., A. Stone, Selected Aspects of Montana Water Law 30 (1978); Thomas v. Guiraud (1883), 6 Colo. 530, 533 (“[t]he true test of *333appropriation of water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same, or making such application, is immaterial”).

Bean Lake

¶11 Bean Lake involved a claim for inlake water rights for fish, wildlife and recreation purposes in a natural pothole lake. In Bean Lake this Court stated, “[i]t is clear therefore that under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife, except through a Murphy right statute.”1 Bean Lake, 234 Mont, at 343, 766 P.2d at 236.

¶12 The Bean Lake decision appears to be inconsistent with earlier case law in which the Court recognized appropriations for fish, wildlife and recreation. See, e.g., Osnes Livestock Co. v. Warren (1936), 103 Mont. 284, 62 P.2d 206, and Paradise Rainbows v. Fish and Game Commission (1966), 148 Mont. 412, 421 P.2d 717. In holding that no appropriation right was recognized for fish, wildlife and recreation, the Bean Lake Court ignored Osnes and misread Paradise Rainbows. The Osnes Court ruled that an earlier diversion of water, even if used only to maintain a swimming pool or fish pond, had priority over a later appropriation and stated, “it is not clear that such a use [swimming pool or fish pond] would not be a beneficial use and hence the basis of a valid appropriation.” Osnes, 103 Mont, at 302, 62 P.2d at 214. The Bean Lake Court neglected to discuss or acknowledge the Osnes precedent.

¶13 In Paradise Rainbows, the Court again recognized the diversion of water for fish ponds as a valid appropriation of water. The Paradise Rainbows holding explicitly validated a diversionary appropriation for fish. In Bean Lake, however, the Court concentrated solely on the Paradise Rainbows Court’s unwillingness, under the peculiar facts of that case, to protect an instream fish and recreation right and, consequently, overlooked the fact that in Paradise Rainbows the Court upheld a diversionary appropriation of water for fish.

¶14 The majority of briefs submitted in this case concur that the Bean Lake decision is fraught with internal inconsistencies. In Bean Lake, the Court acknowledged that beneficial use is the touchstone of a valid appropriation right. Bean Lake, 234 Mont, at 340,766 P.2d at 234. The Court noted that Article IX, Section 3, of the 1972 Montana *334Constitution recognized recreation as a beneficial use and accepted “as given that the activities of the DFWP in stocking Bean Lake, maintaining the fishery resource... coupled with the general public use of Bean Lake for the purpose of recreation, wildlife and fishing constituted a beneficial use of the waters within the meaning of the appropriation doctrine.” Bean Lake, 234 Mont, at 339,766 P.2d at 233.

¶15 In seeming conflict with these findings that (1) beneficial use is the test of a valid right, and (2) fish, wildlife and recreation uses are beneficial uses, the Court concluded that “no Montana legal authority, deriving from common law or statute, acknowledged that recreational, fish or wildlife uses, even though beneficial, gave rise to any water rights by appropriation under Montana law” and therefore “under Montana law before 1973, no appropriation right was recognized for recreation, fish and wildlife ....” Bean Lake, 234 Mont, at 340, 343, 766 P.2d at 234, 236.

A. Did the Bean Lake Court correctly hold that prior to 1973 Montana did not recognize water rights for recreation, fish and wildlife purposes under the appropriation doctrine?

¶16 In Bean Lake, the Court cited and discussed Paradise Rainbows, in which this Court specifically recognized as a valid appropriation a diversion of water for fish propagation. There is no hint in the Bean Lake decision of an intent to overrule Paradise Rainbows. Bean Lake is no model of clarity, ignores Osnes altogether, fails to appreciate the ultimate holding in Paradise Rainbows precedent and incorrectly states Montana law. Prior to 1973, Montana explicitly recognized water rights for fish, wildlife and recreation uses. Montana was not alone in recognizing as beneficial the use of water for fish, wildlife and recreation purposes. See, e.g., Faden v. Hubbell (Colo. 1933), 28 P.2d 247, 250-51 (“[i]t is self-evident that water diverted and employed for the propagation of fish is devoted to a useful purpose, and all of the parties completed their appropriations of water by its application to the beneficial use designed”); State ex rel. State Game Commission v. Red River Valley Co. (N. M. 1945), 182 P.2d 421, 428 (“we are unable to find authority, or justification in reason, to support the claim that the ‘beneficial use’ to which public waters, as defined in this and other jurisdictions, may be put, does not include uses for recreation and fishing”).

¶17 To the extent Bean Lake suggests that fish, wildlife and recreation are not beneficial uses, it simply misstates Montana precedent and is hereby overruled. We next address whether Bean Lake correctly held that non-diversionary water rights for fish, wildlife *335and recreation purposes were not recognized in Montana under the doctrine of prior appropriation.

B. Does Bean Lake correctly hold that claims for the non-diversionary use of water for fish, wildlife and recreation are not recognized in Montana law under the prior appropriation doctrine?

¶18 In arguing this matter to the Court, DFWP has strenuously contended that, since the five water right claims which are the subject of the Department’s appeal all involve diversions of water, the Court should correct the language in Bean Lake as it applies to diversionary rights but should leave the Bean Lake holding in tact as it applies to non-diversionary claims. The dissent also argues that the Court, in addressing non-diversionary uses, is going outside the issues and should confine itself to diversionary rights. We determine that such a restricted clarification would be inconsistent with the fact that the Bean Lake remark which has given rise to this appeal is being applied by the Water Court to both diversionary and non-diversionary pre- July 1, 1973, claims, and that the Bean Lake decision itself arose out of DFWP’s claim for an instream, non-diversionary claim to the water in a natural pothole lake. Finally, in the Bean Lake paragraph which is the primary source of the present confusion, the Court specifically eschewed any reliance on a distinction between diversionary and non-diversionary claims when it concluded “[w]hatever the merits of the lack of diversion argument, the DFWP and the public could not have intended an appropriation where none was recognized by law, and for the same reason, adverse appropriators could not have had notice of such a claim.”2 Bean Lake, 234 Mont, at 343, 766 P.2d at 236. Thus, given the facts of Bean Lake, the language of the Bean Lake decision and the broad application of the resulting Bean Lake remark, it is necessary that we address the question of whether the Bean Lake *336decision correctly holds that claims for the non-diversionary use of water for fish, wildlife and recreation are not recognized in Montana law under the prior appropriation doctrine.

¶19 After the Bean Lake Court concluded that prior to 1973, Montana did not allow appropriation of water for fish, wildlife and recreation purposes, the Court essentially skipped the traditional appropriation analysis. Rather than evaluating whether DFWP had intended to appropriate water and whether DFWP provided notice of its intent, the Court simply stated that because Montana did not recognize water rights for fish, wildlife and recreation purposes, DFWP could not have intended to appropriate water for those purposes, and thus adverse water users could not have had notice of any such intent. It is unclear from the opinion itself, whether the Court denied the appropriation for Bean Lake because there was no diversion or because it found there was no notice of intent to appropriate. To resolve the confusion engendered by Bean Lake, we now determine whether a valid appropriation of water'may be established without a diversion where no diversion is physically necessary for the intended use.

¶20 While most traditional uses necessitated a diversion of water for application to beneficial use, the appropriation doctrine’s history of flexibility and practicality support a holding that a diversion is not required where the application to beneficial use does not physically require a diversion. Common sense rebels against a rigid diversion requirement that would refuse to recognize an acknowledged beneficial use simply because application to the use does not require removal from and depletion of the water source. In accordance with the doctrine’s flexibility, we find that a diversion is not a requisite element of an appropriation when it is not a physical necessity for application to a beneficial use.

¶21 More than one commentator has warned against the strict adherence to traditional elements, such as diversion, when the element no longer serves its original purpose. These scholars also note that beneficial use is the only essential element of a valid appropriation. See, e.g., Tarlock, Appropriation For Instream Flow Maintenance: A Progress Report on “New” Public Western Water Rights, 1978 Utah L. Rev. 211, 221 (“Most western water experts agree that the actual diversion requirement serves no function that cannot be served by other water law doctrines and statutory procedures. Thus the real issue is whether these uses are beneficial”); Christine A. Klein, The Constitutional Mythology of Western Water Law, 14 Va. Envtl. L. J. 343, 351 (1995) (“Rigid adherence to the diversion requirement has *337increasingly restricted the traditional flexibility of the ideas of beneficial use and waste. Although appropriation to beneficial use is the true measure of a water right, diversion has frequently been substituted as the constitutional requirement”).

¶22 Under prior appropriation, a diversion traditionally served dual purposes-providing notice of a user’s intent to appropriate water, and defining the extent of the use. In Wheat v. Cameron (1922), 64 Mont. 494,210 P. 761, this Court explained that intent to appropriate is to be determined from the specific facts and circumstances pertaining.

It is argued by defendants’ learned counsel that no intent to make an appropriation from Mill Creek on the part of [plaintiffs’ predecessors] is shown, and therefore the adjudication is not warranted. ... Intent to appropriate will be presumed from these facts, showing, as they do, diversion and use of Mill Creek waters for irrigating purposes. A claimant’s intent at the time of appropriation must be determined by his act and by surrounding circumstances, its actual and contemplated use, and the purpose thereof. (Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396.) Actual diversion and beneficial use existing or in contemplation constitute an appropriation [citations omitted], and from this evidence it is plain that water from Mill Creek was in fact appropriated in the spring of 1867 by [plaintiffs’ predecessors], as found by the court. And the change in the point of diversion or place of use did not affect the appropriation.

Wheat, 64 Mont, at 501, 210 P. at 763 (emphasis added).

¶23 In accordance with the historical flexibility of the doctrine of prior appropriation, the Wheat Court held that although intent could be presumed from actual diversion, intent could be proven through other facts and surrounding circumstances. Similarly, in Bean Lake, the Court noted that diversion could provide notice or proof of an intent to appropriate. Bean Lake, 234 Mont, at 339, 766 P.2d at 233. These decisions do not require a diversion for proof of intent. To the contrary, the opinions suggest that although a diversion may provide proof, intent is the essential element and may be proven through means other than a diversion. In other words, a diversion, although sufficient to prove intent, is not necessary.

¶24 Decisions from this Court have not consistently required diversions for water appropriations. Indeed, despite the fact that most traditional beneficial uses of water, such as mining and irrigation, could not occur without a diversion, Montana has specifically recognized appropriations of water without diversions where no *338diversion was required for the intended beneficial use. See, e.g., Donich v. Johnson (1926), 77 Mont. 229,250 P. 963 (appropriation recognized for instream reservoir); Axtell v. M.S. Consulting, 1998 MT 64, 288 Mont. 150, 955 P.2d 1362 (domestic use recognized without a diversion). Those cases that do suggest that a diversion is an essential element of an appropriation involve uses that, of practical necessity, require a diversion for the application to beneficial use. See, e.g., Warren v. Senecal (1924), 71 Mont. 210, 220, 228 P. 71, 75 (diversion by ditch for use in mining and irrigation); Sherlock v. Greaves (1938), 106 Mont. 206, 216, 76 P.2d 87,89 (diversion by pipes and flumes from ditch for irrigation and domestic use).

¶25 Justice Rice in his dissent states that, in recognizing instream uses prior to 1973, we are rewriting Montana history. Justice Rice’s protestations to the contrary, Montana has a legendary history of cattle and sheep ranching. No doubt Montana’s stockgrowers would be surprised to learn, as the dissent suggests, that Montana law would not have recognized a right to water stock directly from a stream, lake, pond or slough without a man-made diversion. Justice Rice’s assertion that Montana law is “monolithic” and absolute in requiring a diversion as a prerequisite element for all pre-1973 water appropriation claims is belied by the fact the Montana Legislature recognized that pre-1973 claims for stock use and individual use based upon instream flow were valid. Such non-diversionary, instream claims were exempted from the mandatory filing requirement of Title 85, Chapter 2. (“Every person... asserting a claim to an existing right to the use of water arising prior to July 1,1973, is ordered to file a statement of claim to that right with the department no later than June 30, 1983. Claims for stock and individual as opposed to municipal domestic uses based upon instream flow or ground water sources are exempt from this requirement; however, claims for such uses may be voluntarily filed.” Section 85-2-212, MCA (emphasis added)).

¶26 The fact that there are no Montana decisions establishing such an instream right merely reflects the fact that that issue was not litigated, not that such a right was beyond the pale of Montana prior appropriation doctrine. See Wilhite v. Billings etc. Power Co. (1909), 39 Mont. 1, 101 P. 168, in which Wilhite brought a nuisance action against the maintenance of a dam on the Yellowstone River which caused the river to overflow some of Wilhite’s land making it “almost impossible for plaintiff to reach the river and water his livestock or to obtain water for household purposes ....” Wilhite, 39 Mont, at 4, 101 P. at 168. This Court affirmed the injunctive relief but remanded for a *339narrowing of the terms of the injunction. In Bean Lake, we acknowledged, “[i]t cannot be disputed ... that there were beneficial uses for which appropriation rights could be obtained which would not require diversion of the waters.” 234 Mont, at 340, 766 P.2d at 233. Given our history, there is every reason to believe that had the issue arisen, Montana would have followed the lead of Nevada and held that no ditch, dam reservoir or other artificial means was necessary for watering cattle. If there must be a diversion with intent to apply water to a beneficial use, then “the drinking by cattle constitutes a diversion, [and] the necessary intent must be that of the cattle.” Steptoe Live Stock Co. v. Gulley (Nev. 1931), 295 P. 772, 775.

¶27 The non-recognition of instream uses prior to 1973 would likewise have been a shock to Montana’s early loggers and railroaders who used Montana stream flows to float logs and railroad ties. See Montana Coalition for Stream Access v. Curran (1984), 210 Mont. 38, 44, 682 P.2d 163,166, where we recognized that the Dearborn River was used in 1887, two years before Montana statehood, to float approximately 100,000 railroad ties. Then in 1888 and 1889, there were one or two log drives per year down the Dearborn thus satisfying the federal test for navigability for title purposes. The Court then proceeded to analyze whether public recreational use and fishing make a stream navigable for “use” as opposed to title. We quoted extensively from an 1893 decision from Minnesota which reasoned that navigability for use should not be limited to commercial usage. Rather, the concept must include noncommercial uses such as “boating and sailing for pleasure.”

Many, if not the most, of the meandered lakes of this state, are not adapted to, and probably will never be used to any great extent for, commercial navigation; but they are used-and as population increases, and towns and cities are built up in their vicinity, will be still more used-by the people for sailing, rowing, fishing, fowling, bathing, skating, taking water for domestic, agricultural, and even city purposes, cutting ice, and other public purposes which cannot now be enumerated or even anticipated. To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated....

Lamprey v. State (Metcalf) (Minn.1893), 53 N.W. 1139, 1143.

¶28 We also quoted from a Wyoming decision as to the public’s use of state waters.

Irrespective of the ownership of the bed or channel of waters, *340and irrespective of their navigability, the public has the right to use public waters of this State for floating usable craft and that use may not be interfered with or curtailed by any landowner. It is also the right of the public while so lawfully floating in the State’s waters to lawfully hunt or fish or do any and all other things which are not otherwise made unlawful.

Day v. Armstrong (Wyo. 1961), 362 P.2d 137, 147, quoted in Montana Coalition, 210 Mont, at 51-52, 682 P.2d at 170.

¶29 Having noted with approval the Minnesota and Wyoming precedent, we quoted Article IX, Section 3(3), of the Montana Constitution, which states that all waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law. Relying on this constitutional provision and on the public trust doctrine dating back to statehood, the Court concluded that navigability for purposes of determining public “use” rights is determined by the capability of use of the water for recreational purposes.

In sum, we hold that, under the public trust doctrine and the 1972 Montana Constitution, any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability for nonrecreational purposes.

Montana Coalition, 210 Mont, at 53, 682 P.2d at 171.

¶30 The dissent queries “how this 1984 decision, interpreting the 1972 Constitution could have established in-stream water rights for prior years.” The dissent conveniently ignores the fact that the Court, in Montana Coalition, interpreted not only the 1972 Constitution, but also the public trust doctrine which dates back to Montana’s statehood. Under the Constitution and the public trust doctrine, the public has an instream, non-diversionary right to the recreational use of the State’s navigable surface waters. This holding, of course, allays the concerns that the Court expressed in Paradise Rainbows where the Fish and Game Commission contended that the public had a prior right to the use of the stream since the public had used the creek as a fishing stream and natural fish hatchery. The Court stated that it could not yield to this contention since “[s]uch a public right has never been declared in the case law of this state.” Paradise Rainbows, 148 Mont, at 419, 421 P.2d at 721. The Court in Montana Coalition filled that void and declared that the public does have a right to recreational use of the State’s navigable waters.

¶31 The dissent quotes Montana Coalition as recognizing that *341landowner Curran had no right to control the use of the surface waters of the Dearborn River to the exclusion of the public, “except to the extent of his prior appropriation of part of the water for irrigation purposes . .. .” Montana Coalition, 210 Mont, at 52, 682 P.2d at 170. Justice Rice accuses the Court of ignoring the qualifying clause (quoted above). The referenced clause from Montana Coalition merely recognizes the principle of prior appropriation: that first in time is first in right. Meine v. Ferris (1952), 126 Mont. 210, 216, 247 P.2d 195, 198; § 85-2-401, MCA. In adjudicating individual claims for pre-1973 recreation, fish and wildlife, the Water Court will have to determine the validity of each claim, and as to those claims it finds valid, it will have to assign a priority date. Section 85-2-234(6)(c), MCA.

¶32 Ample case law depicting the evolution of the prior appropriation doctrine, and emerging from throughout the west, supports a conclusion that the doctrine should not rigidly demand a diversion where unnecessary to achieve the intended beneficial use. See, e.g., Empire Water & Power Co. v. Cascade Town Co. (8th Cir. 1913), 205 F. 123, 129 (“[i]f nature accomplishes a result which is recognized and utilized, a change of process by man would seem unnecessary’); In re Water Rights in Silvies River (Or. 1925), 237 P. 322, 336 “[wjhen no ‘ditch, canal, or other structure’ is necessary to divert the water from its natural channel, the law does not vainly require such works, prior to an appropriation”); Town of Genoa v. Westfall (Colo. 1960), 349 P.2d 370,378 (“It is not necessary in every case for an appropriator of water to construct ditches or artificial ways through which the water might be taken from the stream in order that a valid appropriation be made. The only indispensable requirements are that the appropriator intends to use the waters for a beneficial purpose and actually applies them to that use”); State, Dept. of Parks v. Idaho Dept. of Water Admin. (Idaho 1974), 530 P.2d 924, 933 (Bakes, J., concurring) (“[wjhere an appropriative water right does not require a diversion to make it effective and beneficial, in the absence of a statute requiring a diversion there appears to be no practical reason why a diversion should be required”).

¶33 The issue of whether Montana recognizes instream water rights prior to 1973 was again addressed by this Court in State ex rel. Greely v. Confederated Salish and Kootenai (1985), 219 Mont. 76, 712 P.2d 754. In Greely, the issue was whether Montana’s Water Use Act was adequate to adjudicate federal and Indian reserved water rights which pre-dated 1973. Addressing Indian water rights, we noted that Montana’s Water Use Act permits the Water Court to treat Indian *342reserved rights differently from state appropriated rights in terms of the filing of claims and contents of preliminary and final decrees.3 We then noted that the Act recognizes and confirms “existing rights to the use of any waters for an