[WSBARP] Common Well

Wed May 7 15:11:07 PDT 2014

Your issue may not be a straight real property question so much as a
County regulatory one. Most Counties regulate the delivery of drinking
water. I really think that you should check the county regulations for
multi party water systems. King County, (and more recently Washington
State) requires a well use agreement with a provision restricting shutting
off water. If this is an approved system, your client needs to conform to
the County requirements. Even if this is not an approved system, I have
found the courts very reluctant to shut off water, particularly to a
dwelling.

Also, typically, an interest in a shared well or a water system runs with
the land and not to individual parties.

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: John M. Riley III <JMR at witherspoonkelley.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Cc: John M. Riley III <JMR at witherspoonkelley.com>
Sent: Wed, May 7, 2014 2:46 pm
Subject: RE: [WSBARP] Common Well

On the first issue, look at "merger" court cases, starting with Coast
Storage.   Merger is not favored and courts have found ways to avoid it.  

John M. Riley, III	 
Principal | Witherspoon • Kelley	 
jmr at witherspoonkelley.com | Attorney Profile | vCard	 

	 422 W. Riverside Ave, Ste 1100
Spokane, WA 99201 
(509) 624-5265 (office)
(509) 458-2728 (fax)
witherspoonkelley.com 

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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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