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Know the Law on Waterway Rights

Water in Idaho and many of the western states is managed under the Prior Appropriation Doctrine. This doctrine follows the principle of “first in time is first in right.” That is, a priority is established for water rights where water was first diverted and put to beneficial use.

“Diverting” water and delivering it to landowners is the business of irrigation dictricts. While many irrigation districts own canals and deliver water through those canals, myriads of lateral ditchs are privately owned by the landowners who use those ditches to deliver water from the canal to the property being irrigated.

Idaho law recognizes that a landowner may claim a right-of-way across the land of another for purposes of obtaining water for irrigation. Idaho Code § 42-1102. The right-of-way is for purposes of building a canal, ditch or conduit to deliver water to the land being irrigated.

The right-of-way includes the right to enter upon the land across which the right-of-way extends for the purpose of “cleaning, maintaining and repairing the ditch, canal or conduit.” Idaho Code § 42-1102. The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal in order to clean or maintain it.

The existence of a visible ditch, canal or conduit is notice to the owner of the land that his or her neighbor has a right-of-way for purposes of irrigation. Idaho Code § 42-1102.

The owner of a water right will typically negotiate with his neighbors as to the installation of a ditch or canal. However, in case a landowner refuses, Idaho law gives the person who desires a right-of-way the right to proceed in eminant domain so as to condemn adjoining property and obtain a right-of-way for purposes of a ditch, canal or conduit capable of delivering water.

In short, the owner of a water right has the ability under Idaho law to claim a right-of-way across his neighbor’s property in order to build a ditch, canal or conduit so as to be able to deliver water to his property. Water is the lifeblood of Idaho agriculture. Canals, ditchs and conduits are the means whereby water is delivered and is protected by Idaho law.

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