[WSBARP] Prescriptive Easement for a Well?

[Eric Nelsen]

David--I typically analyze the water right and the prescriptive easement rights separately. In a "domestic" context using less than 5,000 gallons per day (so a water permit isn't required), a groundwater water right is acquired simply by appropriating water for beneficial use. See WSBA Real Property Deskbook Vol. 6, Ch. 11 (4th ed. 2012). To me, that means once you have your well in the ground and are pumping it to your house, you've acquired the right to the water.

Then the question becomes, what's your right to maintain the well pump and the pipeline on somebody else's property? That's prescriptive easement, so if it's in place for 10 years, I think it's easily provable as continuous, and assuming at least the pump is above ground I think open & notorious, and certainly hostile to the neighbor's title since it's pulling water from underneath their land.

So the sticking point is what everyone is identifying--was the original installation permissive, and given the usual near-complete lack of evidence one way or the other, which way do the presumptions favor. And the recent activity in case law under the "neighborly accommodation" concept is shifting the argument that I used to make with more confidence: that the burden of proof to show permission is on the defendant, because it's a defense to plaintiff's element of hostility. I would argue that a prescriptive easement case Plaintiff's evidence of hostility is generally the same that shows open & notorious; I don't think they are really very clearly separable. The mere fact that one is openly using someone else's land is pretty clearly hostile to that other person's title.

For your PC, if s/he doesn't want to mess with resolving the situation by paying the neighbor, I'd just suggest disclosing to potential buyers the existence and location of the well and pipeline, disclose how long it has been in place, and leave it at that. The buyer can evaluate if it's a problem to them.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040



From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Thursday, April 16, 2015 1:59 PM
To: wsbarp
Subject: [WSBARP] Prescriptive Easement for a Well?

I have a prospective client up here in Jefferson County who owns a parcel which is fed water from a neighboring parcel. The PC has owned the parcel for 15 years and has used that well for the full 15 years. Now, the PC wants to sell the property but there is no recorded well agreement or easement to the benefit of the PC's property. The neighbor is now demanding $10,000.00 from PC to sign a well agreement.

My question: does Washington State recognize a prescriptive right to access a well? Any alternative routes that members of this listserv can think of?

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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