[WSBARP] Common Well

Fri May 9 12:51:54 PDT 2014

The King County website--under public health--environmental
health--drinking water--has a sample agreement for a class B system, which
is a system of 2-9  users.

It includes the following language, which I have not be able to locate in
the WACs: 

If any party to this Agreement or their heirs, successors, or assigns
fails to comply with the terms of this Agreement, including non-payment of
water bills, within 45 days of the due date, the remaining parties and/or
the Management Authority for the water system may cause corrective action
to be taken.  Corrective action may include:

A)  A lien against the lot in which the non-complying party has an
ownership interest.

B)  Termination of water service with additional charges for disconnect
and reconnect.

C)  Assessment of charges for attorney fees, disconnection, and
reconnection, etc.
Parties not conforming with the provisions of this Agreement shall be
subject to interest charges of          % per annum together with all
collection fees.

The larger private systems here mostly have agreements which include lien
rights that run with the land. Those water systems continue to provide
water even in the case of non-payment and file liens that are almost
always, eventually, paid. 

My limited experience with litigating shut-offs has not been good, because
once the issue gets to court, judges, in my experience, always seem
reluctant to shut off water to a residence.

Margaret L. Koch 
Smith and Koch 
PO Box O 
Vashon, WA 98070 
206-463-9491 
206-463-3405 (fax) 
vashonlaw at aol.com 

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-----Original Message-----
From: Rick Hoss <rhoss at hctc.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Sent: Fri, May 9, 2014 12:06 pm
Subject: RE: [WSBARP] Common Well

Call your local health department and ask for a well specialist – they
will know. 

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com
<mailto:wsbarp-owner at lists.wsbarppt.com?> ] On Behalf Of Josh Grant
Sent: Friday, May 09, 2014 11:57 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Common Well

Thanks.

I have reviewed the headings and several parts of WAC 246-290  and I don't
see any provision that tells a class A water system how much notice they
have to give to a customer (member) before they cut off the water.  I
assume, for example, each town and city probably have their own
regulations.

This client is a class A system.

Josh

----- Original Message ----- 
From: Rick Hoss <mailto:rhoss at hctc.com>  
To: wsbarp at lists.wsbarppt.com 
Sent: Friday, May 09, 2014 11:26 AM
Subject: RE: [WSBARP] Common Well

Look at WAC 246-290-035(4). You may be fine.
Rick

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Friday, May 09, 2014 10:17 AM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] Common Well

I hope this WAC doesn't apply to a community water system.  I have a CWS
who is about to cut off a member for non-payment, and they gave about a 30
day notice.

Joshua F. Grant
Attorney at Law
P.O. Box 619
Wilbur, WA 99185

t 509 647 5578
f 509 647 2734

----- Original Message ----- 
From: Rick Hoss <mailto:rhoss at hctc.com>  
To: wsbarp at lists.wsbarppt.com 
Sent: Thursday, May 08, 2014 9:54 AM
Subject: RE: [WSBARP] Common Well

David –
I agree with John Riley’s merger comment.
Also check the WACs – there is a rule requiring 1 year notice before
disconnecting someone from a well. If you can’t find it I will look.
Rick

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Wednesday, May 07, 2014 1:55 PM
To: wsbarp
Subject: [WSBARP] Common Well

WSBARP,

A potential client has approached me about an ongoing dispute with his
neighbor over a water well located on the potential client's property
serving both properties. A contract for the operation of the well is
recorded with the county, but the chain of title from the two individual
owners who signed the original agreement to the current property owners
passed through a single individual for a period of about four years.

My initial thought is that the contract has automatically become void
because, for a time, both parties to the contract were the same person,
which conflicts with the common law rule against contracting with oneself.
Am I correct that this would also be a reasonable argument to make with
regard to any sort of easement/covenant, if what I am looking at could
properly be called by either name (I'm not sure how to classify this
arrangement because it is unlike anything I am accustomed to seeing in my
[very] young real property practice)?

In the alternative to my void contract theory, my prospective client is
complaining that the neighbor has continuously breached the contract by
failing to pay for their contractual share of the well maintenance and by
negligently allowing conditions to persist that damage the well. Again, my
initial thoughts go to contract law, and material breach. My gut reaction
is to seek an injunction against the neighbor to cease using the well and
a court order terminating the contract. Because this issue concerns real
property, however, I can imagine that additional rules are probably in
play about which I am unaware at this point in time. Any thoughts? What
might limit my client's ability to terminate this contract because it
concerns property rights?

If the contract is void or has been materially breached and nothing bars
having the contract thrown out, should I then look at filing a quiet title
action to eject the neighbor from my prospective client's property
(provided the statutory qualifications for a prescriptive easement have
not been met, if indeed a prescriptive easement might be what I am looking
at here)?

I have searched for case law on point but have not seen anything directly
relevant, at least from the way I have been approaching the matter. Any
advice, pearls of wisdom, or on-point cases would be much appreciated.

Best,
David J. Faber
Faber Feinson PLLC
210 Polk st., ste. 4B
Port Townsend, WA 98368
(360) 379-4110

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