Water Easements

November 5, 2014

A common document for which I have not see a standard form is the water easement.  The laws of the various states different in the treatment of these easements but nonetheless there are some common technical issues that the drafter should consider.  The term “water easement” commonly means one of two things.  First, it might transfer the right to draw water from a site.  The phrase is also used to describe the right to convey water by pipe or trough across or beneath the land of another.  A water easement of either sort should also contain an access easement and auxiliary rights related to the maintenance, repair, replacement and possibly construction of improvements.

The easement may either be given to the owner of land so that the easement rights pass automatically with the transfer of title to the land or given to a person or entity.  The first type of easement is called an appurtenant easement, even though in Washington the two parcels are not necessarily required to have a common boundary.  The second mentioned type of easement is somewhat awkwardly called an easement in gross.  (American law is derived from English law but easements in gross are not recognized in England.  This concept is derived from Roman law.) It should be clear which of these alternatives is intended and if the easement is intended to benefit a person or entity, then the drafter has to be concerned that the easement is valid under state law.

If the intention is merely to give a person permission to draw water or convey it across land, then consideration should be given to calling the right a license, rather than an easement.  Licenses are less formal and less likely to impact title.  They are also usually revocable.  An irrevocable license requires consideration and is best treated with the formality of a commercial easement in gross.

In any case the instrument should always contain all intended conditions on the use.  For example, there might a set duration, a limit on amount of water, limitations on access, size of pipe, licensing, type of use, who may use the easement, a condition related to the land owner’s use of the property.  From the land owner’s perspective rather than having a long list of conditions, it might be best to use a nonassignable, revocable license.

Easements should contain the legal description of the land that is subject to the easement and should in most cases be recorded. Easements appurtenant should also describe the benefitted land.  It is prudent to specify the amount of water that is authorized to be taken from the source, permitted use and sometimes the depth of a well.  Remember that in Washington the land owner will be required to sign a covenant that prohibits use within one hundred feet of a well used for drinking water.

If the easement is given for future development it is best to make it immediately effective, not effective whenever the development occurs to avoid creating a voidable future interest.

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Water law

June 16, 2008

You probably read last week the the King County Superior Court struck down portions of the Washington State legislature’s 2003 water rights law. This was just a local reverberation of a pressing national issue, one that you will be hearing more and more about. There is a shrinking supply of water, as demand increases. The apportionment of water pits various private interests against each other and private interests andaginst public interest. It does not seem fair that we should have so little sun and still experience issues about the availability of water. But in King County homes on wells have had to be abandoned because the well runs dry. In Pierce County the there is a lot of talk about the contamination of wells by salt water.

Surprisingly (to me) this has become a partisan issue. Washington is a politically odd state in a number of different ways. Owing to the population imbalance between east and west, Washington is generally speaking progressive in political orientation. There is a wide cleft though between the sentiments of the citizens and the actions of their legislature. Perhaps because of citizen indifference, the legislature here is driven by special interests so that our laws on the whole are far from progressive.

Nonetheless it is interesting to see how water rights issues are being fought out in other states.  A number of states are attempting to expand the the public trust doctrine to include potable water from any source.  Historically this doctrine has been limited by the courts of navigable waterways, which are deemed to be held in trust for the public, giving a high degree of accountability to public officials who manage them.  Courts generally have been resistant to expanding the doctrine.  Most battles over the extension of this doctrine are now being waged in the various state legislatures.