Two neighbours have shared a headgate arrangement since their fathers agreed it. It works, it is efficient, it suits both operations, and it exists nowhere except in the understanding of two families.
One of them sells to somebody from out of state. Within a season the arrangement is in dispute, and neither party is behaving badly.
Nothing in this entry is legal advice. Water rights, delivery obligations, easements, and the effect of long practice on any of them are technical questions that belong with counsel who knows your district and your basin.
Why the informal version worked
Not because the parties were more reasonable than people are now. Because they shared a large body of unstated agreement.
What counted as fair. What everybody already knew about the history. How a dispute would be settled if one arose, and who would settle it. And a shared expectation that both families would still be there in thirty years, which made short-term advantage unattractive to both.
That last element is doing more work than anything else. An informal arrangement is enforced by the prospect of a continuing relationship, and it is stable exactly as long as both parties expect one.
What a new party actually lacks
Not goodwill, usually. Information and the same time horizon.
They do not know why the arrangement is structured as it is, what was traded to arrive at it, or what the practice has been in a dry year as opposed to an ordinary one. They cannot acquire any of that by observation, because none of it is visible.
They also may not expect to be there in thirty years, which removes the mechanism that made the arrangement self-enforcing.
Which means the failure is structural. An unwritten understanding has no defence against a party who was not present when it was made, and the number of such parties in this state is increasing.
Recording it does not mean litigating it
The objection raised against writing these down is that formalising invites dispute, and there is something to it — reducing an understanding to writing can surface a disagreement about what it was.
That disagreement exists either way. Discovered while both original parties are present and cooperative, it is a conversation. Discovered when one has sold and the other has died, it is a dispute with no one able to say what was intended.
There is also a considerable distance between a memorandum of what the parties understand the practice to be and a formal instrument. Which of those is appropriate, and what effect either has, is exactly the question to put to counsel — and the reason to put it while the answer can still be shaped rather than determined.
What the district can do
Individual users will not initiate this. A district board can, and it is among the more valuable things such a board does.
Identify them. Ask the watermaster, the ditchrider, and the long-serving secretary which arrangements in the district rest on nothing written. They will be able to list them, and nobody has ever asked.
Record the district’s own understanding. Not adjudicating between parties, which is not the board’s role. Simply noting what the practice has been and since when, which is information rather than a determination.
Brief new owners. A short account of how delivery works here, what the practice is, and who to ask. Given to somebody in their first month rather than after their first mistake.
That last item is nearly free and prevents a substantial share of the disputes that reach the board.
Explaining rather than asserting
When a new owner asks why something works the way it does, the answer determines whether the next five years are cooperative.
That is how it has always been done is true and functions as a refusal. It confirms a suspicion that the arrangement is arbitrary and that they are outside something.
The history, briefly and specifically, does the opposite. This follows from what was agreed when the lateral was rebuilt in the seventies, and here is what that means for your parcel.
Which requires somebody to know the history well enough to state it, and returns to the point running through this entire chapter. The people who hold that knowledge are largely of one generation, and nobody has asked them for it.
The general principle
What applies to headgates applies to every unwritten arrangement in an institution operating in a place that is changing.
Informal understandings are efficient, they are the accumulated product of people who knew each other, and they are the first thing to fail when the parties change. They are also, for that reason, exactly what an institution should be recording while the people who made them are still available to explain what they meant.
An arrangement that has held for fifty years is not durable. It is untested, and the test is arriving.
Edited by Patrick J. Wolf, PhD