In the complex world of Oregon property and water rights, few things cause more confusion than a historic ditch running across a property line. There may be no mention of it in your deed, yet for generations, it has been there. This “phantom easement” often has its origins in a 150-year-old federal law: Revised Statute 2339 (RS 2339).
Understanding this law is the first step to protecting your water access and property rights. This guide explains the history and modern-day implications of these powerful, unwritten rights.
The History Behind the Law
Passed as part of the U.S. Mining Act of 1866, RS 2339 was designed to encourage the settlement and development of the West. It granted a right-of-way for the construction of ditches and canals over public lands.
The crucial part of the law is that when these public lands were later transferred (patented) into private ownership, the property was taken subject to any existing, valid RS 2339 ditch rights. In other words, the right-of-way was automatically established and continues to exist today, even if it was never formally recorded in a deed.
How Do You Know If You Have an RS 2339 Ditch?
Because these rights are unwritten, identifying them requires historical investigation. You may have an RS 2339 right-of-way if your water delivery system meets these conditions:
- The Ditch is Historic: The ditch must have been constructed before the land it crosses was transferred from public to private ownership.
- The Land Was Public: The land where the ditch is located must have been in the public domain at the time the ditch was built.
- The Water Was Appropriated: The water carried by the ditch must have been appropriated for a beneficial use in accordance with state law.
Determining these facts requires more than a simple title search; it involves analyzing historic maps, government patent records, and old aerial photographs.
Why It Matters Today
An unwritten RS 2339 right is just as valid as a modern recorded easement. However, its unwritten nature is a common source of conflict. New landowners may be unaware of the right-of-way and may try to block access, fill in the ditch, or prevent necessary maintenance.
For the water user, this threatens their ability to transport water. For the landowner, ignoring a valid RS 2339 right can lead to costly legal disputes.
The First Step: Know Your History
The key to preventing conflict is to understand the history of your land and water systems. Professional research can uncover the necessary evidence to confirm a historic right-of-way, providing the foundation needed to protect your assets.