Water Rights and Homesteading in Western States

      I find it unsettling to read recommendations encouraging people to purchase land for a bug out retreat or for homesteading in some of the Western states, including Idaho, without any discussion or warnings about water law and, in particular, the right to use water for domestic purposes, irrigation, watering livestock, and so on.

Owyhee River in Oregon

       Disclaimer: I'm not your attorney and this is not legal advice. If you want legal advice, hire your own attorney.

      Most of the states in the United States apply the common law rule of riparian rights to water that flows alongside or through one's property, or bodies of water on or adjoining one's land. As the Virginia Court of Appeals quaintly put it:

The well settled general rule on this point is that each riparian proprietor has ex jure naturae an equal right to the reasonable use of the water running in a natural course through or by his land for every useful purpose to which it can be applied, whether domestic, agricultural or manufacturing, provided it continues to run, after such use, as it is wont to do, without material diminution or alteration and without pollution; but he cannot diminish its quantity materially or exhaust it (except perhaps for domestic purposes and in the watering of cattle) to the prejudice of the lower proprietors, unless he has acquired a right to do so by grant, prescription or license.‘

Town of Purcellville v. Potts, 179 Va. 514, 520–21, 19 S.E.2d 700, 702–03 (1942) (emphasis in original). Basically, and without nuances that the law might otherwise provide, this means that if you have a stream or pond on your property, you have a legal right to use the water for your house and other domestic purposes. But you don't naturally have a right to use water from a stream or pond on a neighbor's property. Generally speaking, under the common law of correlative rights, the landowner also has a right to natural springs on his property or to develop and use water under his property, such as through digging or sinking a well.

      In many of the drier Western states, however, the scarcity of water gave rise to the doctrine or rule of prior appropriation. Prior appropriation is used in Alaska, Arizona, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming. Texas, California and, to a more limited respect, Oregon use a combination of riparian rights and prior appropriation. The doctrine or rule of prior appropriation is succinctly described by the phrase: "first in time, first in right."

     Essentially, under prior appropriation, a person acquires a water right by putting water to some beneficial use (e.g., for household purposes, watering crops or livestock, etc.) and registering that right with the state. Similarly, if someone stops using the water for a beneficial use, he can lose his water right.

      The date on which a right arises is important under prior appropriation, however, because a person that has an older (senior) right has priority over a younger (junior) water right to use the water. This is where the "first in time, first in right" comes into use. Thus, for example, if A has an older water right than B, and there is a shortage of water, A will have first right to the water up to the amount of his full share, even if that means that B gets less water than normal, or even none.

Wheel line irrigation in Idaho

     Prior appropriation does away with correlative rights and riparian rights to water in most of the states that adopted the doctrine,* so that there is no natural right to use water that flows across one's land or that lies under one's land . For instance, you could purchase property abutting a river or pond, have a creek crossing the property, or even have runoff across your property from rain and snow, and have absolutely no right to consume that water.  Prior appropriation also extends to subsurface waters. So, similarly, you may not have a right to drill a well to access water, or make use of a natural spring on your property.

       Because persons or entities might develop and obtain a right to use water far away from their property, a property owner may, in fact, have to tolerate canals, ditches, or pipelines across his property. Moreover, the people that own or manage those canals, ditches and such will also have a right to reasonably enter onto someone's property to maintain or repair those water works. In Idaho, water works, such as canals and ditches, are often incorporated into water districts or owned by canal companies, which will schedule amounts and times that water is available to the different users, and a "ditch master" or "ditch rider" may enter different properties to open or shut off the flow of water into various ditches. This is something to keep in mind when considering securing your property against trespassers or for operational security--you may have to allow reasonable access to your property.

      Most important for someone looking to purchase property is that water rights are independent of the right to possess the property, meaning that someone could sell you real property, but keep the water rights for himself or sell it to someone else. So, you need to be careful to make sure that the water rights are included in a purchase. Don't assume that just because there is a pond, spring, creek, ditch or canal on or across the property you are considering on buying that you will be able to use that water if you purchase the property. And don't assume that you will legally be able to dig a pond to impound water runoff across your property, or install a well. While it generally should not be too difficult to obtain a right to use a de minimus amount of water for household purposes, larger amounts necessary for farming or raising livestock commercially may be an entirely different matter.

* Note: there are other rights associated with water, such as the right to access the water for sporting purposes or navigation, such as swimming or boating, as well as rules as to who owns the banks or beds of rivers, streams, lakes and ponds, and so forth, that are beyond the scope of this article.