The Water Right My Grandmother Left Me
Chapter 6
I called the state water office first, because I wanted to do this right before I did it loud. A water commissioner named by the state oversees Spring Creek, a man whose job is to see that the oldest rights are satisfied first, every season, the way the law says.
He was slow to call me back. When he did, he was careful with his words, the way a man is careful when he knows there is money on the other side listening.
He confirmed the decree. He confirmed the priority date. And then he said the sentence I had been afraid of.
“The trouble, Mrs. Dunmore, is that the company’s attorneys are claiming your right was abandoned. They say the ditch hasn’t carried its full decreed amount in years, and under the law, if you don’t use a water right, you can lose it. Use it or lose it. They’re going to argue you abandoned most of it a long time ago.”
I felt the floor tilt. It was a clever thing, and a cruel one, and it was aimed exactly at a widow my age, because it turned my whole careful life against me.
It was true that I had never run the full decreed flow. Why would I? I ran a stock operation, not a hay factory. I took what my cattle needed and I let the rest go down the creek to my neighbors, the way my father and my grandmother had, because that is what a decent water user does.
The commissioner explained it the way a careful man explains a thing he does not want to be quoted on. The law in dry country does say use it or lose it. A right you never exercise can be declared abandoned, and once it is gone it is gone, and the next right in line moves up to take its place. The company’s lawyers had seized on that, he said, and they would argue that I had let most of my 1921 right lapse decades ago by only ever running a stock ditch.
“I’m not telling you they’re right, Mrs. Dunmore,” he said. “I’m telling you that’s the fight they’ve picked. And a fight like that, on paper, with their lawyers, takes years.”
The company wanted to call forty years of neighborly restraint an abandonment. They wanted to punish my family for never being greedy.
Garrett came back out to the ranch two days later. He had heard I had been to the courthouse. He was not unfriendly. That was the strange thing about Garrett. He was never cruel to my face. He believed, all the way down, that he was helping me.
“Hazel, I’ll be straight with you,” he said, leaning on my corral. “You found an old paper. That’s fine. But the company’s got six lawyers and you’ve got a photocopy and a dead creek. They’ll tie that decree up in hearings for three years, and you don’t have three years. You’ve got cattle dying this week.”
He let that sit.
“The offer’s still good. I even got them to bump it. Three ten, and we close before you lose the rest of the herd. I’m trying to get you a win here before this turns into something that breaks you.”
He meant it. I could see he meant it. In Garrett’s mind, a widow with a dying herd and a paper the lawyers would eat alive was a woman he could still save, and he wanted to save me, as long as saving me meant the company got the creek.
I thought about the abandonment claim the whole next day while I hauled water.
And somewhere between the second load and the third, hauling four hundred gallons up a county road to a hundred and forty thirsty cattle, I understood how to beat it.
They said I had abandoned the right because I had not used my full flow. The way you answer a claim that you have abandoned your water is not with a lawyer. It is by using it. In front of everyone. By opening the headgate my grandmother dug and taking the water that the oldest decree on the creek said was mine.
You cannot call a thing abandoned while a woman is standing in it with her hand on the wheel.