State of Oregon
We have 1893 water rights served by a small irrigation ditch with point of diversion at about mile 10 on the east side of Eagle Creek, tributary of the Powder River, in northeast Oregon. This ditch passes through two private parcels in the first 3/4 mile between the point of diversion and the first point of use on our property.
For purposes of water conservation, we have undertaken to replace this open ditch with 6" pipe. The Oregon State Water Resources Department has begun to enforce more strictly the requirement that water usage be measured at the point of diversion, rather than at the point of use. Water-right holders are thus held accountable for leakage- and evaporation loss occurring in open irrigation ditches. In our case, at times of water shortage, there would be little or no water available for our use, after such loss from the open ditch.
A property owner through whose property our ditch passes objects to the placement of pipe in the ditch, claiming that any prescriptive easement that may exist on the basis of our (and our predecessors') historic use of the ditch does not allow us to lay this pipe in the ditch. In fact he questions our right to access and maintain the ditch as has been done for the past 120 years since the ditch was constructed about 1886.
The question is: what rights may we presume to exercise? Legally speaking, may we effectively be prevented from carrying out the necessary maintenance and improvements to ensure delivery of our water of right (the patent purpose for which the ditch was constructed)?