M. Twain Knew About Water

Mark Twain is credited with saying, "Whiskey is for drinking . . .water is for fighting over."

Sam and I have been researching the history of irrigation in Montana. You’re thinking, BORING; but it’s not boring. Water used for irrigation accounts for more than 90% percent of water withdrawn from Montana’s streams and rivers and irrigates more than two million acres. But even with 170,000 miles of streams and rivers the state doesn’t always have enough water for everybody who wants to irrigate.

See, my next book is tentatively titled Death of a Ditch Rider. The book is a “whodunit” about a ditch rider who is killed because he discovers evidence implicating a farmer in a crime.

I didn’t even know ditch riders existed until Kathleen’s uncle Jay and aunt Elinore said to me one day that they thought a story about ditch riders would be an interesting subject. That idea stuck with me and since Uncle Jay has passed on I’m going to dedicate Death of a Ditch Rider to him and aunt Elinore.

The Homestead Act of 1862, the Desert Land Act of 1877 and the Carey Land Act of 1894 played major roles in the settlement of Montana and particularly in the development of agriculture there. The Homestead Act required a claimant to settle on and cultivate 160 acres of land for five years in order to obtain the deed to the property. The Desert Land Act allowed a person to acquire an entire section of land - 640 acres - for $1.25 per acre on the condition that they “reclaim” the land by irrigating a portion of it.

It's been reported that 40% of Montana’s irrigated acres are served by privately owned ditches which can cross multiple property lines. This crossing of property lines often raises issues about operation and maintenance and many private users have banded together into water organizations that regulate water usage and carry out maintenance and operations as needed. These organizations hire ditch riders who set priority date limits for water use; maintain close contact with water users to determine the quantity of water they need and to decide the duration of delivery The ditch rider may stay in close communication with a water “commissioner” (commissioned by the Water Court) to coordinate diversions and calls on a river because the water commissioner operates the head gates where the water is diverted from the river into private ditch systems.

The ditch rider has the authority to enter any ditch, canal or other source of water in his assigned area to control and monitor private ditch head gates, pump sites, checks, turnouts and waste ways. He may patrol his assigned area on foot, on horseback or by motor vehicle to detect leaks, breaks, weak areas or obstructions and damage to the irrigation system.

Occasionally, the ditch rider will patrol a canal at night to determine that water is flowing in the prescribed volume into somebody’s field and not being siphoned off by a neighboring land owner or junior user in violation of the senior user’s rights. Montana’s water law is based on the Doctrine of Prior Appropriation – First in Time, First in Right. Water rights are ranked according to the date on which the water was first put to beneficial use. And it’s a use-it-or-lose-it kind of deal.

A farmer’s priority date is critical. Water users with the earliest priority date (or claim) are called senior water right holders and those people can divert the full amount of their claim before later claimants, called junior water right holders. If a water source cannot supply enough water to meet all claims - as when a river’s flow drops during dry periods, senior right holders may place a “call” on any junior water user’s rights, including water from their wells. Junior water users are required to cease diverting water in descending order of their priority dates so senior water rights holders can take their full claim amount. Montana’s law does not mandate that water be shared among claimants during shortages. 

A ditch rider can order anyone within his or her jurisdiction who is violating another person’s water use rights to stop. The ditch rider reports to the District Court and has arrest authority, although use of that authority generally is discouraged.  If user conflicts arise with a ditch rider, water users can petition the District Court to appoint water Commissioner in place of a ditch rider.

Water users who fail to comply with lawful orders of a commissioner or ditch rider can be prosecuted in the Montana Water Court by the County attorney for violation of the Montana Water Use Act.

Now aren’t you glad you read our blog today? Poop on you if you aren’t. Beware; there might be a test later. Hope I got all my facts right. Somebody let me know if I didn’t.