6M // Real Estate & Home Builders Guide // April 2017
By Ilyce Glink
and Samuel J. Tamkin
Tribune Content Agency
Q
: My parents owned land for 40
years. On the property was a home
and a well for water. The property was
sold, but the well did not go with the
property. Later the property was sold
again and everybody knew that the well
did not go with the land.
Eventually the property was lost
to the bank; the bank president was
informed the well did not go with
the property. The bank sent out an
agreement for the well to be signed by
my family. We signed the document, but
the bank did nothing with it. The bank
is now claiming the well.
There is documentation showing
that we used the well and maintained it
for over 40 years. Now bank has given
us until the 1st to either purchase the
property or stop using the well. What
rights do we have rights to the well. Do
we have any adverse possession rights?
: Your question brings up a whole
range of issues relating to land
ownership and water rights. It will be
very hard to address your issues in any
detail in the space of this column. Also,
we have to make some assumptions
based on your question that may not be
correct.
The most basic assumption is that
the well is located on land that is not
owned by your parents but is adjacent to
other land they own or live on. In other
words, to get the water, the water must
travel up a well located on the original
property, then travel by pipe across your
neighbor’s land to your home. Further-
more, the electric power for the well
may come from your land and travel
over the same area as the water supply
pipe down the well to supply power to
the pump at the bottom of the well.
If we were to do that today, we’d need
to go to your neighbor and ask them for
an easement over their land to drill the
well, along with an easement over a strip
of land going from the well to our land to
supply the well with power and bring the
water back to our land.
That brings us to our fi rst question:
Do you have any documentation from
40-odd years ago giving you the right
to put the well in and to use a portion of
the land to supply your property with the
water forever? Wells can be expensive to
install along with the other infrastructure
needed to then supply water from the
well to your home. Most people would
not go to the trouble of investing that
A
WHOSE
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much money without putting something
down in writing. And, if not, when the
property was sold for the fi rst time, did
an easement giving your family the right
to use the water get fi led along with the
deed?
You may just fi nd that something if
you look hard enough. Try paying a visit
to the recorder’s offi ce or land records
offi ce in your area and see if there is a
document recorded against the land in
which the well is located that documents
these rights. If you fi nd something, you
would have found the document that
should give you the right to continue to
use the well and bring that document to
the bank’s attention.
(There’s also the question of what was
the paper that your parents signed. If
they signed over ownership of the water
rights or gave up the easement that they
had, then they may be out of luck.)
If 40 years ago everything was
done with a handshake between the
neighbors, you get into a murkier area
of proving your claims. While you have
used the well for over 40 years and
can prove it, the issue then depends on
whether you can prove that you have an
easement or a license with the neighbor.
The difference between these two is
quite large: An easement would and
could be permanent, while the license
agreement might be temporary and
revocable.
If drilling for a well on your land was
impossible back then, it would likely
mean that the parties intended for the
well to benefi t the neighboring land for
quite some time as the neighbor’s need
and requirement for water might only
be satisfi ed through the use of this one
well. We don’t know that, but we are
thinking about different scenarios that
might have been going on 40 years ago.
We came across a parcel of land in
North Carolina some years ago and that
land had various wells. Those wells
supplied water to the home where the
well was located along with homes on
adjacent lands. In that property, the wells
were all located on this specifi c parcel
of land due to the problem in drilling for
wells on adjacent properties. It appeared
that this one property had the only or
best location for the wells. Granted,
the well use and other rights were well
documented, but it does indicate how
owners will go to great lengths to get
water and keep their water.
Some states have specifi c laws
relating to the drilling of a well and
have extensive legal case law on this
issue. We’d suggest you talk to a real
estate attorney in your area that has
experience with water rights to see if
there is any law in your state that would
help your case. If there are specifi c laws
or cases in your state that advance your
position, your attorney can advocate
those positions for you. Eventually it
would be wise to put it all on paper and
record the rights that you have to the
well and the rights to get the water.
That said, you might ultimately be
OK even if you can’t fi nd paperwork.
We mentioned that an easement is
generally a right that burdens one parcel
of land and benefi ts a different parcel of
land. Under certain circumstances, you
can create an easement even when one
was not created in writing.
The classic example is when an
owner divides his land into two parcels:
one in the front of the property and one
in the rear. The parties forget to create
an easement, but the only way to get
access from the road to the rear parcel is
through the existing road going through
the front parcel. If the well that you are
discussing was part of a parcel division
and the only way for you to get your
water was to continue to get it from the
well to your home, you might have an
easement.
However, if we go back 40 years ago
and the owner pf the land on which the
well is situated indicated that you could
keep the well in place but he could
notify you at any time to abandon the
well and remove your piping, you would
have received a revocable license and
might be in trouble trying to keep the
well and its use.
We can think of quite a number more
examples like these on both sides of
the coin, so we’d like you to talk to an
attorney about your issue. Let us know
what happens.