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MailTribune.com
  • Digging into the Ditches

  • "Whiskey's for drinkin' and water's for fightin'."
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  • "Whiskey's for drinkin' and water's for fightin'."
    That old saying certainly rang true in the early days of Rogue Valley settlement, when the fightin' often ended with the blast from a shotgun.
    But it wasn't always that way.
    Before the pioneers and miners began to settle here, the local American Indian tribes had all the water they needed and, early on, even the settlers didn't have much to complain about. As long as you had enough to drink, sprinkle on your garden or fill up the horse trough, everything was OK.
    The idea was to settle near a creek or river and then dig a ditch from the water's edge to somewhere near your homestead.
    Jackson County soon had a lot of ditches, from small ones for the single farmer to large versions serving multiple families.
    Jacob Wagner is usually given credit as the first person in Jackson County to establish a water right for his ditch in 1852, although court documents from 1919 show that Hugh Barron dug his ditch in 1851. Perhaps Wagner was lucky enough to get his claim filed before Barron. After all, Jackson County wasn't even established by the Territorial Legislature until 1852.
    At first, farmers and ranchers didn't argue much amongst themselves about water. They left that to the miners, who kept a shotgun watch not only on their claims but on their water, too.
    It didn't take too many knife and gun fights before some of the boys got together and formulated a few rules, and when it came to water rights, it was he who got there first who got the rights. It didn't stop all the murders and drunken arguments, but it was a start.
    As the population increased and the old pioneers began to die, property was divided and divided again. The question became, "Who has the rights to the water?"
    For the first 50 years of statehood, Oregon courts were constantly being asked to make the final decision, often without any verifiable facts. Claims generally were filed with the county, if at all, but the law was vague and the situation chaotic.
    In February 1909, the Oregon Legislature decided public water decisions would be made by the state, and it adopted the Oregon Water Code. It was similar to the laws in other Western states, except it added a citizen's right to take water disputes to court. That was something new in water law, and it became known as the "Oregon System."
    Now, water belonged to the public. An older water right always trumped a later claim, and to decide whose claim was valid, the law created a state water board.
    The water board began its task by taking applications from claimants living along Oregon's waterways. For most of the state the process was relatively simple, but not along the Rogue River.
    Covering nearly 170,000 acres, this was the most complicated and important decision the board would make. The area included 315 streams, at least 314 water ditches and a minimum of 1,125 claimants.
    The hope had been that once rights were given, there would be fewer disputes and court cases, but that turned out to be a fanciful dream.
    In Jackson County, the Circuit Court studied facts and took testimony on disputed claims that had been decided by the state water board. On April 26, 1919, the court issued its final decree — 73 pages of owners' names and the locations of valid water rights. Each listing included a priority date: the date the water right began.
    The decree didn't end all disputes, but it finally brought order to Oregon's water decisions. Even today in Jackson County, when a question of water rights arises, the courts still consult that 92-year-old decision.
    These days things are a bit quieter and there's probably more water than whiskey going down, but the fighting? Well, you can lead a horse to water, but "…
    Writer Bill Miller lives in Shady Cove. Reach him at newsmiller@yahoo.com.
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