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WATER DELIVERY

In This Issue: CANALS, DITCHES, AND PIPELINES

THE LAW OF EASEMENTS IN IDAHO, OREGON, AND WASHINGTON

Easements &

by David E. Filippi (Portland, OR); Michael O Connell (Seattle, WA);

Rights-of-Way

& Kevin Beaton (Boise, ID) (Stoel Rives LLP)

INTRODUCTION

Supreme Court

Delivery of water for irrigation in Idaho, Oregon, and Washington depends on

Limits ESA

complex systems developed over many years. The canals, laterals, ditches, and pipes

that make up these systems often cross land owned by many persons other than those

providing or receiving water. To build, operate, and maintain their water delivery systems,

Texas Groundwater water users must secure and maintain the right to use the property of affected landowners.

Markets Without the necessary easements and rights-of-way, water suppliers cannot ful ll their

function of delivering water to their end users.

Water delivery systems are currently threatened from within and without. The

external threats include encroachments by new development and restrictive environmental

regulations. There are also internal threats arising from water users own failure to

adequately understand and maintain the legal rights provided by their easements. This

article provides an outline of the potential issues facing water suppliers easements for

Water Briefs 24 irrigation in Idaho, Oregon, and Washington.

Calendar 29 OVERVIEW OF CANAL, DITCH, AND PIPELINE RIGHTS

To protect the right to use canals, ditches, and pipelines to deliver water for irrigation

purposes, it is important to understand what an easement or right-of-way is, and what it is

not. Landowners have a possessory interest in land; they are entitled to exclude others from

it. In contrast, most easements only authorize the use of property for speci c purposes.

Upcoming Stories: The underlying land, and any related right not conveyed in the easement, belongs to

someone else.

Easements and Rights-of-Way

TMDLs & Numeric

An easement is a nonpossessory interest in the land of another that entitles the owner

Nutrient Endpoints of the easement to limited use of another s land without interference. The land crossed by

the easement is referred to as the servient estate because it is burdened by the easement.

Interstate Allocations The land that bene ts from the easement, such as land irrigated from a ditch easement, is

know as the dominant estate. Because an easement is an interest in land, to be binding

it must generally be in writing. See IC 9-503; ORS 93.020; RCW 64.04.010. Frequently,

Tribal Instream however, irrigation ditch easements are not memorialized by a written agreement (see

Claims discussion below).

Quanti cation A right-of-way is a speci c type of easement that allows the holder of the right-of-way

to pass over, through, or across another s land. Most easements for canals, ditches, and

pipelines are rights-of-way. In some cases, the easement authorizes such broad use of the

& More! land that all other uses are excluded. In these situations, the holder of the easement may

actually be the owner of the land itself and maintain the right to exclude others completely.

Early irrigation developers sometimes acquired full fee simple title (i.e. title to the land)

Issue #41 July 15, 2007

The Water Report

Issue #41

rather than an easement (i.e. rights-to-use only) for major canals. When there is any doubt, however, ditch

and canal rights are interpreted to be mere easements, not fee estates. See Hall v. Meyer, 270 Or 335, 527

Easements

P2d 722 (1974); Little-Wetzel Co. v. Lincoln, 101 Wash 435, 172 P 746 (1918).

Ditches were not always developed by any formal written agreement between the parties. Sometimes

either an oral agreement or an informal letter authorizing a neighbor to use another s land for his or her

Infomal personal purposes were employed. For example, in Shaw v. Prof tt, 57 Or 192, 109 P 584 (1910), Shaw

Agreements wrote a letter to Failing asking for an irrigation right-of-way across Failing s land. Failing wrote back,

saying, go ahead, the more ditches you build the better it will suit me. 57 Or at 197. In a subsequent suit

by the buyer of Failing s property, the court held that Failing s letter had granted Shaw a legal right-of-way.

Generally, a license acquired by one individual to transport water across another s property is personal

to the individual who received it and is not transferable. However, over time, ditches created by oral

Transfers

agreement or license have sometimes become part of a broader, regional delivery system. In Oregon and

Idaho these licenses may become irrevocable and transferable if a substantial amount of money and labor

is spent to improve them. See McReynolds v. Harrigfeld, 26 Idaho 26, 140 P 1096 (1914) (court refused to

quiet title [i.e. settle scope-of-rights] to an irrigation ditch built pursuant to landowner s permission when

the ditch builder failed to show any investment dependent upon landowner s permission); Shaw, 57 Or 192.

Under these conditions, the licenses are essentially treated as easements.

In Washington, however, a parol (i.e. oral, unwritten) license does not become irrevocable even if the

licensee invests a substantial amount of money on improvements. Rhoades v. Barnes, 54 Wash 145, 102

License P 884 (1909). In this case, Barnes had received permission to lay 300 feet of pipe across Hornibrook s

Revocable property in order to tap a preexisting pipeline. Hornibrook later sold his property to Rhoades, and when

water supplies were insuf cient, Rhoades stopped the ow of water to Barnes. Barnes then sued for

injunctive relief, but the court rejected his claim, holding that a parol license may be revoked by the

licensor at any time, irrespective of the performance of acts under the license, or the expenditure of money

in reliance thereon. 54 Wash at 147-48.

Easements: Appurtenant and In Gross

An appurtenant easement is one that bene ts a speci c parcel of land. In such cases, the easement is

inseparable from the land to which it appurtains. Typical examples of appurtenant easements are easements

Conveyance for driveways and utilities, and for conveying water to a speci c place of use such as a house or farm.

The right to use the appurtenant easement is conveyed when the bene ted property itself is conveyed.

Appurtenant easements bene t all the landowners in an irrigation district, for example, and the right to the

The Water Report use of the system is conveyed when the land itself is conveyed. Easements in gross, on the other hand, are

easements unrelated to possession or ownership of any particular parcel of property. Irrigation easements

(ISSN pending) is published

are typically appurtenant, but those granted directly to an irrigation district may be in gross. See, e.g.,

monthly by

Abbott v. Nampa School District No. 131, 119 Idaho 544, 808 P2d 1289 (1991).

Envirotech Publications, Inc.

The characterization of an easement as appurtenant or in gross is important because easements in gross

260 North Polk Street,

Eugene, OR 97402 often cannot be assigned. The courts generally construe easements as appurtenant, but ultimately the intent

of the parties controls the interpretation of the type of easement created. Nelson v. Johnson, 106 Idaho 385,

Editors: David Light

679 P2d 662 (1984) (easement appurtenant in nature because the parties clearly intended for the easement

David Moon

to bene t cattle ranch); Tone v. Tillamook City, 58 Or 382, 114 P 938 (1911) (pipeline right-of-way was

appurtenant easement); Pioneer Sand & Gravel Co. v. Seattle Constr. & Dry Dock Co., 102 Wash 608, 618,

Phone: 541/ 343-8504

Cellular: 541/ 517-****-*** P 508, 511 (1918) ( It is well settled in law that easements in gross are not favored; and a very strong

Fax: 541/ 683-8279 presumption exists in favor of construing easements as appurtenant. ).

email:

Hall, 270 Or 335, provides an example of a situation in which the use of an irrigation easement turned

abpn20@r.postjobfree.com

on whether it was appurtenant or in gross. In that case, Peterson sold the west portion of his property to

website:

Meyer, but reserved for himself an easement for a pipeline to convey water from a spring on the west parcel

www.TheWaterReport.com

to the east parcel. Peterson later sold the east parcel and the easement to Markham. Markham kept the

Subscription Rates: land but sold the easement to Gibson, who owned a parcel directly to the south. Hall bought Gibson s land

$249 per year

and the easement, and extended the pipeline to bring water to the south parcel. Meyer then cut the pipeline.

Multiple subscription rates

Hall sued and lost. The Oregon Supreme Court held that the easement language was not speci c enough to

available.

create an easement in gross that could be transferred from the east parcel to Gibson s land to the south,

Postmaster: Please send which Hall had purchased. 270 Or at 339. Instead, it was an easement appurtenant to the east parcel

address corrections to owned by Markham and could be used only to convey water to that parcel. Id.

The Water Report,

Creating Easements

260 North Polk Street,

Numerous federal and state laws allow easements to be granted by the federal government, state

Eugene, OR 97402

governments, and private parties. Easements granted under different laws often differ in the scope of the

Publications, Incorporated the scope of rights for each class.

The Water Report

July 15, 2007

Federal Law

Most of the easement rights held by irrigation districts derive from federal grants. The variety of

Easements

federal statutes authorizing easements and rights-of-way can be divided into those relating to public land

law and those relating to reclamation law.

Public Land Law

In the second half of the 19th century, the United States (US) recognized that much of the land west of

the 100th meridian would not be valuable without irrigation and that developing irrigation systems required

Reserved rights-of-way for water delivery systems. For this reason, most deeds from the US (called patents )

Rights-of-Way reserved rights-of-way for irrigation. The reserved rights-of-way were held by the US until otherwise

conveyed. The conveyance of the irrigation easement to water users was often made automatically by

statute to any person whose rights to use the water had been legally established (i.e. vested ).

RS 2339 Rights-of-Way

During early western settlement, persons desiring to appropriate water from the public domain and

to construct ditches for its conveyance simply did so. Although the US Supreme Court relatively quickly

1866 Act

recognized the property rights of these early water users, it was not until 1866 that Congress enacted a law

formally granting the right to water conveyance easements across the public domain.

THE 1886 STATUTE, AS AMENDED, PROVIDES:

Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing,

or other purposes, have vested and accrued, and the same are recognized and acknowledged by the

local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall

be maintained and protected in the same; and the right of way for the construction of ditches and canals

for the purposes herein speci ed is acknowledged and con rmed; but whenever any person, in the

Vested Rights

construction of any ditch or canal, injures or damages the possession of any settler on the public domain,

the party committing such injury or damage shall be liable to the party injured for such injury or damage.

All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued

water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have

been acquired under or recognized by this section. 43 USC 661.

The effect of this statute was to grant an easement across federal land to the holder of any vested water

right. The public domain remained open for this use until the United States conveyed or otherwise reserved

federal lands. Any patent of the land was made subject to these ditch and canal easements, which are now

referred to as RS 2339 rights-of-way. The language of reservation in the patent typically reads, Subject to

Patent any vested and accrued water rights, for mining, agriculture, manufacturing, or other purposes, and rights to

ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged

Reservation

by the local customs, laws, and decisions of courts. See, e.g., Uhrig v. Crane Creek Irr. Dist., 44 Idaho

779, 260 P 428 (1927). Once the land was patented, no new ditches and canals were authorized, but all

existing ones were effectively grandfathered.

General Right of Way Act of 1891

A quarter-century after RS 2339, Congress enacted a slightly more detailed law regarding easements

across the public domain. The General Right of Way Act of 1891 (1891 Act) gave broader and better-

1891 Act de ned rights, and required reporting to the government.

THE 1891 ACT S KEY PROVISION READS AS FOLLOWS:

The right of way through the public lands and reservations of the United States is hereby granted to any

canal ditch company, irrigation or drainage district formed for the purpose of irrigation or drainage, and

duly organized under the laws of any State or Territory, and which shall have led, or may hereafter le,

with the Secretary of the Interior a copy of its articles of incorporation or, if not a private corporation,

a copy of the law under which the same is formed and due proof of its organization under the same, to

Rights

the extent of the ground occupied by the water of any reservoir and of any canals and laterals, and fty

Granted

feet on each side of the marginal limits thereof, and, upon presentation of satisfactory showing by the

applicant, such additional right-of-way as the Secretary of the Interior may deem necessary for the proper

operation and maintenance of said reservoirs, canals, and laterals; also the right to take from the public

lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction

of such canal or ditch: Provided, That no such right-of-way shall be so located as to interfere with the

proper occupation by the Government of any such reservation, and all maps of location shall be subject

to the approval of the department of the Government having jurisdiction of such reservation; and the

privilege herein granted shall not be construed to interfere with the control of water for irrigation and

other purposes under authority of the respective States or Territories. 43 USC 946.

The effect of this provision was to grant to duly organized ditch and canal companies rights-of-way

Purposes

across public lands and reservations. The sole authorized purpose of such rights-of-way was at rst

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Issue #41

irrigation, but the 1891 Act was subsequently amended to include a number of subsidiary purposes, such

as domestic uses, transportation, and water power.

Easements

THE 1891 ACT ALSO REQUIRED THE MAPPING OF EASEMENTS:

Any canal or ditch company desiring to secure the bene ts of sections 946 to 949 of this title shall,

within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and

Mapping if upon unsurveyed lands, within twelve months after the survey thereof by the United States, le with

Requirement the of cer, as the Secretary of the Interior may designate, of the land of ce for the district where such

land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of

the Interior the same shall be noted upon the plats in said of ce, and thereafter all such lands over which

such rights-of-way shall pass shall be disposed of subject to such right-of-way. Whenever any person

or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of

any settler on the public domain, the party committing such injury or damage shall be liable to the party

injured for such injury or damage. 43 USC 947.

Because of this requirement, even today the master title plats maintained by the Bureau of Land

BLM Plats

Management (BLM) have clearer information on easements under the 1891 Act than on those created under

RS 2339. It is important to remember, however, that failure to comply with this ling requirement does not

necessarily invalidate the easement. Roth v. United States, 326 F Supp 2d 1163, 1174 (D Mont 2003) held

that the 1891 Act easement across unsurveyed land vests upon construction.

Federal Land Policy and Management Act

With the exception of the reclamation laws, which are discussed below, no statute departed from

Construction the basic framework of RS 2339 and the 1891 Act until Congress passed the Federal Land Policy and

Management Act (FLPMA) in 1976. The fundamental difference between FLPMA and the earlier acts

is that the earlier acts were direct grants from the federal government to those using the public domain,

whereas FLPMA only authorizes the Executive Department to make such grants if, in its discretion, it

FLPMA Permits

determines that is the appropriate course of action. With FLPMA, Congress repealed RS 2339 and the

(1976)

1891 Act and transitioned to a permit-based system.

AS IT RELATES TO WATER DELIVERY, FLPMA PROVIDES:

The Secretary [of the Interior], with respect to the public lands, and the Secretary of Agriculture, with

respect to lands within the National Forest System (except in each case land designated as wilderness),

are authorized to grant, issue, or renew rights-of-way over, upon, under, or through such lands for: (1)

reservoirs, canals, ditches, umes, laterals, pipes, pipelines, tunnels, and other facilities and systems for

the impoundment, storage, transportation, or distribution of water. 43 USC 1761(a).

The US Department of the Interior has issued regulations implementing this provision. See 43 CFR

2800. Today, anyone wishing to acquire an easement across federal lands must complete environmental

New Easements

and other reviews before the government will grant the easement.

Reclamation Law

The policy embodied in RS 2339 and the other public land statutes discussed above was one of

granting easements over unimproved federal land to encourage private development of the land. The

policy underlying the reclamation laws contemplates a different scenario, in which the federal government

Federal Projects builds large, capital-intensive projects to attract whole groups of settlers and thereby develop entire areas of

the arid west. Because of this basic policy difference, the easements based on the reclamation laws involve

a higher degree of federal control than those based on the public land laws.

Unlike public land laws, the reclamation laws do not make outright easement grants. Instead, they

authorize the US Bureau of Reclamation (Reclamation), in its discretion, to reserve to the United States

easement rights across public land needed for reclamation projects (43 USC 417), and to acquire such

rights from private land owners (43 USC 421). Reclamation project works such as water distribution

canals, were often constructed by private or quasi-municipal parties, such as irrigation districts, acting

under federal contracts rather than directly by the United States. Through such partnerships, easements

reserved under 43 USC 417 eventually accrue to the bene t of irrigation districts and their member

landowners.

The reclamation laws also apply to land patented out of the public domain after August 30, 1890.

The act of that date reserves rights-of-way for reclamation project water conveyance systems across lands

patented to private parties under the public land laws: In all patents for lands taken up after August 30,

Federal 1890, under any of the land laws of the United States or on entries or claims validated by this act west

of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent

Reserved Rights

described, a right-of-way thereon for ditches or canals constructed by the authority of the United States. 43

USC 945. Interestingly, this provision was enacted 12 years before the Reclamation Act rst authorized

the construction of ditches and canals for federal projects.

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July 15, 2007

Finally, Reclamation is authorized to grant discretionary rights-of-way for purposes not directly

related to a particular project.

Easements

THESE DISCRETIONARY RIGHTS ARE DESCRIBED AS FOLLOWS:

The Secretary, in his discretion, may (b) grant leases and licenses for periods not to exceed fty years,

and easements or rights-of-way with or without limitation as to period of time affecting lands or interest

in lands withdrawn or acquired and being administered under the Federal reclamation laws in connection

Discretionary with the construction or operation and maintenance of any project: Provided, That, if a water users

Grants organization is under contract obligation for repayment on account of the project or division involved,

easements or rights-of-way for periods in excess of twenty- ve years shall be granted only upon prior

written approval of the governing board of such organization. Such permits or grants shall be made only

when, in the judgment of the Secretary, their exercise will not be incompatible with the purposes for

which the lands or interests in lands are being administered, and shall be on such terms and conditions as

in his judgment will adequately protect the interests of the United States and the project for which said

lands or interests in lands are being administered. 43 USC 387. This provision is implemented by

regulations that set out a detailed application, approval, and payment process to obtain these easements.

See 43 CFR part 429.

State Law

Following the federal government s example, Idaho, Oregon, and Washington all enacted laws

State Laws granting rights-of-way over state lands for ditches and canals to encourage the construction of irrigation

systems. See, e.g., IC 42-1104, 58-601; ORS 273.761, 541.030; RCW 79.36.540. For the most part, these

state laws track federal law. For example, Washington s law provides: A right of way through, over and

across any state lands is hereby granted to any irrigation district, or irrigation company duly organized

under the laws of this state, and to any association, individual, or the United States of America, constructing

or proposing to construct an irrigation ditch or pipe line for irrigation (RCW 79.36.540).

Like the 1891 Act, all three states require the ling of a map or eld notes of a survey, or both, of the

proposed easement. See, e.g., IC 58-601; ORS 273.761(4); RCW 79.36.550. Washington also requires

Requirements

payment of the full market value of the easement, RCW 79.36.560, while Idaho may require reasonable

compensation. IC 58-601.

By Conveyance

The most common way to create an easement is by express grant or reservation. Typically, a

landowner grants an easement to an irrigation district, for example, in a written easement agreement that is

then recorded with the county clerk.

An easement can create or convey full ownership or only a nonpossessory right of use. Conveyance

Written

of a strip of land that does not limit the use in any way may convey full fee title. This type of conveyance

Agreements

would be unusual for irrigation easements, but such easements undoubtedly do exist, especially for main

canals. When there is uncertainty about whether the strip of land is held only as an easement or in full fee

title, courts tend to nd that it is an easement to avoid separating ownership of isolated strips of land.

The extent of the rights granted or reserved by an easement should be carefully described in the

easement agreement. If the terms used in the easement are unambiguous, the words of the easement control

Unambiguous the uses that can be made. See, e.g., Fox v. Miller, 150 F 320 (9th Cir 1906) (because Idaho easement was

Terms for logging purposes, the easement holder was not restricted to transporting logs by road, ume, or tram

and could oat logs down a stream located within easement). Oral testimony contrary to the unambiguous

terms of the easement will not be allowed. See Minto v. Salem Water, Light & Power Co., 120 Or 202, 250

P 722 (1926). Because easements are perpetual and may one day be held by parties not alive today, an oral

agreement on the main points of the easement is insuf cient and could lead to litigation in the future.

In Minto, 120 Or 202, 250 P 722, the water company acquired an easement from Minto authorizing it

to lay city water supply pipes across his property and to build certain ltration cribs and other devices. As

Parol

the city s water needs grew, the water company expanded its operations on Minto s land, building a storage

Evidence

pond above the ltration cribs and constructing certain aboveground facilities. Minto sued in trespass.

The water company acknowledged that the easement document itself did not expressly grant the right to

these expanded operations, but argued that the circumstances surrounding the signing of the easement and

the intentions of the parties at the time showed that the purpose of the easement was to allow the company

to do whatever was necessary to provide clean water to the city. The court held that none of this parol

evidence (i.e. oral, unwritten) could be considered. Focusing on the text of the easement, the court

concluded that the expansion was not allowed and that the water company was liable for trespass.

Washington state law requires easements to be conveyed by deed. RCW 64.04.010. In Kesinger v.

Washington

Logan, 113 Wash 2d 320, 779 P2d 263 (1989), Kesinger, the owner of the servient estate, brought an action

Deed Required

to quiet title to a 20-foot-wide strip of land that an irrigation district claimed was part of its canal easement

The Water Report

Issue #41

across one side of Kesinger s property. The district relied on the terms of the easement contract, which

stated that the easement included the disputed area, and to Kesinger s chain of title, which referenced the

Easements

same contract. The court, however, held that Kesinger could not be estopped from asserting ownership

of the disputed 20-foot-wide area when the easement had not been conveyed by deed pursuant to RCW

64.04.010. Since the property s legal description encompassed the disputed area, the court quieted title

in favor of Kesinger. Courts have, on occasion, quieted title to easements that were not conveyed by

deed (see Kirk v. Tomulty, 66 Wash App 231, 831 P2d 792 (1992) where quiet title was obtained to a road

easement not conveyed by deed, because there had been partial performance by one side and acceptance of

bene t by other). However, water suppliers in Washington should ensure that easements are conveyed by

deed.

Because an easement is an interest in land, the document creating the easement may be recorded

in the county deed records if the document satis es the state s statutory recording requirements. See IC

Constructive

55-801 through 55-818; ORS 93.600-.808; RCW 65.08.030-.180. Recording is crucial because it gives

Notice

constructive notice of the easement to third parties (other parties who are not part of the agreement). After

recording, anyone who deals with the servient estate will be legally held to know that the easement exists,

even if the easement itself is undeveloped.

Private Parties

Irrigation districts in all three states have broad powers to acquire easements and other rights from

private parties by lease, purchase, and eminent domain. See IC 43-304; ORS 545.239; RCW 87.03.010.

Irrigation Idaho, for example, gives irrigation districts the right to acquire, either by purchase, condemnation, or

District Power other legal means all lands and water rights, and other property necessary for the construction, use and

supply, maintenance, repair and improvement of said canal or canals and works. IC 43-304.

By Eminent Domain

If negotiations with private landowners prove unsuccessful, some special districts, such as irrigation

districts, are authorized to acquire easements and other interest through the power of eminent domain. IC

43-304; ORS 545.239; RCW 87.03.140. Oregon s statute provides an example of these three states nearly

identical provisions.

THE OREGON STATUTE PROVIDES:

The board of directors and its agents and employees have the right to enter upon any land in the

Condemnation manner provided by ORS 35.220 to make surveys, and may locate the necessary irrigation or drainage

Power works and the line for any canals and the necessary branches for the works or canals on any lands that

may be considered best for such location. The board also has the right to acquire, by lease, purchase,

condemnation or other legal means, all lands, water, water rights, rights of way, easements and other

property, including canals and works and the whole of irrigation systems or projects constructed or

being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and

improvement of any canals and works proposed to be constructed by the board. The board also has the

Reservoir

right to so acquire lands, and all necessary appurtenances, for reservoirs, and the right to store water in

Storage

constructed reservoirs, for the storage of needful waters, or for any other purposes reasonably necessary

for the purposes of the district. ORS 545.239(1).

All three states have also granted the right of condemnation to individuals in order to secure easements

Individual s for irrigation ditches. IC 42-1106; ORS 772.305; RCW 90.03.040. Idaho, for example, provides that [i]n

Condemnation case of the refusal of the owners or claimants of any lands, through which any ditch, canal or conduit is

proposed to be made or constructed, to allow passage thereof, the person or persons desiring the right of

way may proceed as in the law of eminent domain. IC 42-1106.

Irrigation districts and landowners in these states may also condemn and then use another s canal. IC

42-1102; ORS 772.310; RCW 90.03.040. To secure an easement on another s canal by eminent domain in

Use of Another s

Idaho and Washington, the use of the canal must be necessary. Canyon View Irrigation Co. v. Twin Falls

Ditch

Canal Co., 101 Idaho 604, 619 P2d 122 (1980); State ex rel. Ballard v. Superior Court, Kittitas County,

114 Wash 663, 195 P 1051 (1921). In Ballard, Richards irrigated his land with water from the Richards

ditch, which started at a common point with the Lund ditch, both of which crossed Ballard s property. To

irrigate another part of his property, Richards sought an easement to carry 50 inches of water through the

Lund ditch and extend the Lund ditch nearly 400 feet. Ballard argued that Richards could irrigate the

other part of his property using the existing Richards ditch simply by constructing a 2,000-foot-long ume

elevated 10-to-20 feet above the ground. The court held that because the ume would hardly be feasible

or practicable, a reasonable necessity existed for the easement to be condemned. 114 Wash at 664.

Condemnation suits are instituted in local courts having jurisdiction over the land being condemned.

IC 7-706; ORS 35.245; RCW 8.20.010. The primary issue, assuming the irrigation district s condemnation

authority is not contested, is the determination of just compensation for the needed easement.

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July 15, 2007

By Prescription

It is possible to create easements by prescription. The requirements are similar to those for adverse

Easements

possession. If the prescriptive actions (i.e., use of the property for water delivery) are open, notorious,

and adverse to the rights of the underlying landowner, and continuous and uninterrupted for the statutory

Prescription

period, the owner of the delivery system may acquire an easement. The statutory period in these three

Requirements states differs: Oregon and Washington require 10 years, but Idaho now mandates 20 years. See IC 5-203;

ORS 105.620; RCW 4.16.020.

By Implication

Easements can also be created by implication either through prior use or by necessity. Prior use

Prior Use applies to situations in which a landowner conveys a portion of a tract of land without addressing the

buyer s right to continue to use easements across the portion retained by the seller. When a parcel of land

could not otherwise be physically accessed from a public right-of-way, ways of necessity can be created

Necessity

through a statutory procedure in Oregon and Washington. ORS 376.150-.200; RCW 8.24.010-.050. Idaho

common law similarly allows for the creation of easements by necessity. Cordwell v. Smith, 105 Idaho 71,

Dedication

665 P2d 1081 (Idaho App 1983). Easements may also be implied through the platting of property on which

roads and utility easements are dedicated to the public.

RIGHTS AND DUTIES UNDER EASEMENTS AND RIGHTS-OF-WAY

Exclusivity of Use

Unless the instrument creating an easement expressly creates an exclusive easement, the rights of the

easement holder are nonexclusive. See Hayward v. Mason, 54 Wash 649, 652, 104 P 139, 140 (1909) (ditch

easement was nonexclusive because there was no language in the deed indicating that the right of way

Servient

granted was an exclusive one ). The owner of the underlying land (the servient owner ) may make any

Rights

use of the land that is consistent with and does not unreasonably interfere with the rights of the easement

owner. Reynolds Irr. Dist. v. Sproat, 69 Idaho 315, 206 P2d 774 (1949). In that case, an irrigation district

sought to enjoin the Sproats from using the district s Pyke & Roscoe ditch, which crossed the Sproats

property. The court af rmed the trial court s decision that the district owned the irrigation ditch. On

rehearing the case, however, the court held that this did not prevent the Sproats from using the ditch.

Although the Sproats had not expressly reserved the right to use the ditch in the easement document, they

had the right to use it so long as their use did not interfere with the dominant estate. 69 Idaho at 333.

The rights of the easement holder and the servient owner are relative to each other, not absolute. If the

use by the servient landowner was or should have been contemplated by both parties when the easement

Contemplated

was created, it is considered a type of use that is reasonable and should be allowed. The courts look to the

Uses

express words used in the easement to determine what uses were contemplated.

In Chevron Pipe Line Co. v. De Roest, 122 Or App 440, 858 P2d 164 (1993), modi ed 126 Or App

113 (1994), Chevron owned an easement for an interstate petroleum products pipeline. The pipeline was

buried at depths varying from 1.5 to 3.5 feet. De Roest acquired the servient estate and gradually placed

ll on it until the pipeline was 10.5 to 22.5 feet below ground. De Roest also parked heavy equipment

on the easement. The court noted that a rider to the easement recognized that the servient estate was

Monitor Actions used for a sawmill and that lumber was stored on the easement. In light of this fact, the court refused to

enjoin De Roest s actions even though it increased Chevron s costs, access time, safety risks and liability

exposure. 122 Or App at 446. De Roest s use did not interfere with Chevron s use in any way that was

not contemplated when the easement was granted. One factor that in uenced the court s decision was that

De Roest s in lling of the pipeline took place over a long period of time, during which Chevron did not

complain. Thus one lesson from this case is that easement holders should monitor potential encroachments

and not sleep on their rights.

The lesson that past inaction may inhibit future use of the easement is reinforced by Nampa &

Meridian Irr. Dist. v. Washington Federal Sav., 135 Idaho 518, 20 P3d 702 (2001). In that case, the

irrigation district s historic maintenance practices resulted in the servient owner s expanded use of the

Historic district s easement. The easement document granted the district an easement for a lateral ditch crossing the

Maintenance servient estate and a 40-foot easement for maintenance purposes. As part of Washington Federal s attempt

to subdivide the servient estate, it began constructing a sidewalk and fence along the north side of the

lateral. The district sued to stop construction, arguing that it would interfere with its ability to repair and

maintain the lateral using heavy equipment. The court held that since the district had used only a pickup

truck to maintain the lateral for the past 20 years and could maintain the lateral from the lateral s south side,

the sidewalk and fence would not unreasonably interfere with the district s easement rights.

The Water Report

Issue #41

Duration

Unless expressly limited in time, an easement continues until terminated by abandonment or one of

Easements

the other termination methods discussed below. Water conveyors should make sure when they acquire a

new easement that the written agreement speci cally states that the term is perpetual and that it states, as

Perpetual Term clearly as possible, the types of conditions that would constitute abandonment.

Location of Easement and Changes

When the location of an easement is not speci ed in the document creating it, the location may

be determined by how the parties have used the land since the easement was created. For example, in

White Bros. & Crum Co. v. Watson, 64 Wash 666, 117 P 497 (1911), the White Brothers predecessor had

appropriated the waters of a creek on federal property and carried the water by a ditch and ume to his

property. Watson then acquired his land subject to the White Brothers RS 2339 right-of-way. Five years

Historic

later, a ood destroyed the ditch and ume and made it impossible to divert water from the creek at the

Location

original location. The White Brothers then sought to construct a cement dam and lay a pipeline 76 feet

above the original location. The court refused to permit the White Brothers to proceed, holding that [t]he

manner of diversion, the length and location of the right of way, the means of conveyance of the water

over the right of way in short, the easement became xed and determined by the facts as they existed

when [Watson s] homestead entry was allowed. 64 Wash at 669-70.

A blanket, oating, or roving easement is produced when the instrument creating the easement

Floating simply describes the land that it affects with no attempt to speci cally locate the easement. Reserved

Easement easements in federal patents, such as in White Bros., were always blanket easements. The guiding principle

is that an ambiguous instrument will be interpreted in light of the practical construction given to it by the

parties. Unless the owner of the servient estate locates the easement, the owner of the easement may do

so in a manner that will accomplish the intended purpose with reasonable, minimum levels of damage or

Reasonable

interference to the servient estate. McCue v. Bellingham Bay Water Co., 5 Wash 156, 31 P 461 (1892).

Actions

This principle guided the court in Quinn v. Stone, 75 Idaho 243, 270 P2d 825 (1954). Quinn obtained

an easement from Stone s predecessor in interest to construct two ditches from a pump. Originally, one

ditch was to run in a northerly direction and one was to run in a northwesterly direction. Quinn quickly

built a ditch running to the north, but it was unsatisfactory and was quickly discarded. Quinn then built

a second ditch running to the northeast. Use of this ditch over the years caused sink holes to develop,

rendering it ineffective, so Quinn began building a third ditch running to the northwest, to which Stone

objected, as it would interfere with his farming operations. The court held that a ditch running to the north

and then the west would be feasible and would not unreasonably interfere with Stone s use of the property.

In Spear v. Cook, 8 Or 380 (1880), Spear sold to Cook all the water in Spear Creek, along with an

easement to convey the water across Spear s land. The easement deed gave Cook the right to build,

maintain, and operate all claims, ditches, pipes, aqueducts, or umes necessary and proper for the

Broad Language

conveyance of said water to the premises of [Cook]. Id. at 380. Cook initially built a six-inch wood ume

on small trestles across Spear s property that could carry only a portion of the waters of Spear Creek. Spear

had no problem with this. Three years later, however, Cook built a much larger ume with a walkway wide

enough for people to walk along, nailed in places to Spear s trees. Cook began oating wood down the

new ume. The wood often jammed in the ume, causing water to spill over and damage Spear s property.

Spear sued and lost. On appeal, the Oregon Supreme Court af rmed. The main reason for the court s

decision was the very broad easement language, which contained no limits on the location, type, or use

of the water conveyance. The court held that Spear had to live with the new ume and was entitled to an

award only for actual damage caused to his trees and property.

Idaho gives servient owners the right to change the location of irrigation channels, provided the

Idaho s Right to

change does not impede the ow of the water therein, or...otherwise injure the dominant estate. IC 42-

Change

1207. In Simonson v. Moon, 72 Idaho 39, 237 P2d 93 (1951), the servient owner cut off one lateral ditch

and extended another ditch to the point at which the prior ditch had entered the dominant estate. Because

the newly lengthened ditch lacked the capacity to simultaneously serve both landowners, the court held

that this change impeded the ow of water to the dominant estate and violated the statute authorizing the

servient owner to change the lateral s location.

Another common issue associated with locating easements is determining the width of the easement.

Width Issues If the width is not speci ed, it is constrained by the line of reasonable enjoyment, which is what is

reasonably necessary and convenient for the purpose for which it was created. Everett Water Co. v.

Powers, 37 Wash 143, 152, 79 P 617, 621 (1905). The original width of the easement can be expanded

if the express terms of the easement manifest a clear intention by the original parties to modify the initial

scope based on future demands. Sunnyside Valley Irr. Dist. v. Dickie, 149 Wash 2d 873, 884, 73 P3d 369,

374 (2003) (relying on Patterson v. Chambers Power Co., 81 Or 328, 340-41, 159 P 568, 572 (1916)).

The Water Report

July 15, 2007

Access, Maintenance, and Other Secondary Rights

Irrigation ditch owners typically need to enter the property across which the ditch ows to inspect

Easements

and, if necessary, repair the ditch. Such rights are often referred to as secondary easements and their

nature and scope are generally matters of common law. See Clesson S. Kinney, A Treatise on the Law of

Irrigation and Water Rights 990 at 1750 (2d ed 1912). In Idaho, the common law precept of secondary

Secondary easements for irrigation systems has been codi ed. See IC 42-1204.

Easements The right and duty to maintain and repair an easement generally rests on the party receiving the bene t

from the easement. Unless expressly forbidden, easements are presumed to include the right to enter

the servient landowner s property for purposes of inspection, maintenance, and repair of the easement.

Gorrie v. Wiser Irr. Dist., 28 Idaho 248, 143 P 561 (1915); Carson v. Gentner, 33 Or 512, 52 P 506 (1898);

Baskin v. Livers, 181 Wash 370, 43 P2d 42 (1935). For example in Carson, Carson had taken control of a

ditch across state-owned lands and used it to divert water for mining purposes in 1876. Seven years later,

Gentner settled on the property and subsequently obtained a homestead patent from the state. The patent

did not contain an express reservation of water or ditch rights. In 1892, Gentner refused to let Carson on

Gentner s property to repair the ditch. Carson sued to enjoin Gentner from interfering with Carson s ditch

Repair

rights and won. On appeal, the court held that Carson had a vested ditch right under an Oregon statute

similar to RS 2339, and held that the right to clean

d under different laws often differ in the scope of the

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