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November 17, 2012

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OREGON INSIDER

Issue #***/***

WATER DELIVERY: PIPES VS. DITCHES

Water - RECENT DEVELOPMENTS: PART I

THE LAW OF EASEMENTS

Delivery

by David E. Filippi, Stoel Rives LLP (Portland)

Delivery of water depends on complex delivery 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 receiving water. To build, operate and maintain their water delivery systems, water users must secure

and maintain the right to use the property of affected landowners. Without the necessary easements and

rights-of-way, water suppliers cannot fulfill their function of delivering water to the water s users.

Today water delivery systems are threatened from within and without. The external threats include

Delivery Threats encroachments by new development and restrictive environmental regulations. There are also internal

threats arising from a water user s own failure to adequately understand and maintain the legal rights

provided by its easements.

OVERVIEW OF CANAL, DITCH AND PIPELINE RIGHTS

To protect the right to use their canals, ditches and pipelines to deliver water to their members, 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 specific purposes. The underlying land, and any related right not conveyed

in the easement, belongs to someone else.

Easements and Rights-of-Way

An easement is a nonpossessory interest in the land of another that entitles the owner 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. The land which benefits from the easement,

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 ORS 93.020; ORS 41.580. Frequently,

however, irrigation ditch easements are not memorialized by a written agreement (see discussion below).

A right-of-way is a specific type of easement allowing the holder of the right-of-way to pass over,

Right-of-Way

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 land that no other uses can be made. In these

situations, the holder of the easement may actually own the land totally and may exclude others completely.

Early irrigation developers sometimes acquired full fee simple title (complete ownership) to easements

for main 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 P2d 722 (1974).

Sometimes ditches were developed not by any formal written agreement between the parties, but by

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

personal purposes. In Shaw v. Proffitt, 57 Or 192, 109 P 584 (1910), Shaw wrote a letter to Failing asking

for an irrigation right-of-way across Failing s land in Union County. 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, Proffitt, 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. Over time, ditches created by oral agreement

or license have sometimes become part of a district delivery system. They may become irrevocable and

transferable if a substantial amount of money and labor is spent to improve them. See Shaw, 57 Or 192. In

such cases, the licenses are treated as easements.

Easements: Appurtenant & In Gross

An appurtenant easement is one that benefits a specific parcel of land. In such cases, the easement

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

Easement Types

easements for driveways and utilities and for conveying water to a specific place of use, such as a house or a

farm. The right to use the appurtenant easement is conveyed when the benefited property itself is conveyed.

Virtually all irrigation easements are appurtenant. They benefit all the landowners in an irrigation district,

for example, and the right to the 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.

OREGON INSIDER December 2006

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

gross often cannot be assigned. The courts generally construe easements as appurtenant, but ultimately the

Water intent of the parties controls the interpretation of the type of easement created. Hall, 270 Or 335; Tone v.

Delivery Tillamook City, 58 Or 382, 114 P 938 (1911) (pipeline right-of-waygranted in consideration for free water

service).

In Hall v. Meyer, 270 Or 335, 527 P2d 722 (1974), Peterson sold the west portion of his property

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

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

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

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

pipeline. Hall sued and lost. The Oregon Supreme Court held that the easement language was not specific

enough to create an easement in gross that could be moved from the east parcel to Gibson s land to the

south, which Hall had purchased. 270 Or at 339. Instead, it was an easement appurtenant to the east

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

CREATING EASEMENTS

Almost all easements and rights-of-way have their origins with one of three classes of landowners:

private parties; a state government; or the United States. The following paragraphs briefly describe the

Landowner

means by which a water delivery organization may have acquired an easement from each of these groups.

Types

The precise scope of the rights included with these different forms of easement is a subject discussed in

Part II of this article which will appear in next month s Oregon Insider.

Private Grants

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. Often, irrigation easements on private land were created when the

United States reserved a right-of-way by patenting land to an individual under the public land laws, as

Patenting

discussed further below. This kind of easement must be in writing.

Federal Public Land Law

The land comprising the State of Oregon was once owned by the US government or Indian nations.

Title from the United States was granted to private individuals under a wide variety of public land laws.

The US recognized that much of the land would not be valuable without irrigation and recognized that

developing irrigation systems required rights-of-way for delivery systems. For this reason, most deeds from

the US (called patents ) reserved rights-of-way for irrigation. These reserved rights-of-way were held by

Easement the US until otherwise conveyed. The conveyance of the irrigation easement to water users was often made

Conveyance automatically, by statute, to any person whose rights to use the water had vested under state law.

State Law

Oregon adopted a number of laws paralleling the federal public land laws mentioned above. Under

these laws, water delivery entities may have easements across state school lands, swamp lands or other

Parallel System

state-owned property. In addition, Oregon laws creating irrigation districts give the districts certain powers

to condemn water system easements if they cannot be acquired by negotiation and purchased from affected

landowners. Oregon law also grants the right of condemnation to any person to condemn a right

of way across and upon public, private and corporate lands or other rights of way, for the construction,

maintenance, repair and use of all necessary reservoirs, dams, water gates, canals, ditches, flumes, tunnels,

pipelines or other means of securing, storing and conveying water for irrigation or for drainage, or any other

beneficial purpose, non payment of just compensation therefor. ORS 772.305.

Other Means

PRESCRIPTION: It is possible to create easements by prescription. The requirements are similar to those

for adverse possession. If the prescriptive acts (e.g. use of the property for purposes of water delivery)

continue for a period of 10 years, and if the use is open, notorious and adverse to the rights of the

underlying landowner and is continuous and uninterrupted, the owner of the delivery system may acquire

an easement.

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

involves situations where a landowner conveys a portion of a tract of land without addressing the buyer s

right to continue to use easements across it. Ways of necessity in which a parcel of land could not

otherwise be accessed can be created through a statutory procedure. ORS 376.150-.200. Easements

may also be implied through the platting of property where easements are dedicated to the public.

OREGON INSIDER

Issue #404/405

RIGHTS AND DUTIES UNDER EASEMENTS & RIGHTS-OF-WAY

Water Exclusivity of Use

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

easement holder are nonexclusive. The owner of the underlying land (the servient owner ) may make any

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

Ownership

owner. Ericsson v. Braukman, 111 Or App 57, 62, 824 P2d 1174 (1992) (servient estate owner may place

Limitations

gate across road easement).

The rights of the easement holder and the servient landowner 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

Relative Rights

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

express words used in the easement to determine what respective uses were contemplated. Minto v. Salem

Water, Light & Power Co., 120 Or 202, 250 P 722 (1926) (deed restricted water company to underground

improvements, and court refused to allow surface water intake facilities).

In Chevron Pipe Line Co. v. De Roest, 122 Or App 440, 858 P2d 164 (1993), modified 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 placed fill on it until the

pipeline was 10.5 to 22.5 feet deep. De Roest also parked heavy equipment on the easement. The court

noted that a rider to the easement recognized that the servient estate was used as a sawmill and that lumber

was stored on the easement. In light of this, the court refused to enjoin the fill and equipment parking even

though it increased Chevron s costs, access time, safety risks and liability exposure. 122 Or 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 swaying the court was that De Roest s infilling of the pipeline took place gradually

over a long period of time, during which Chevron did not complain. Thus one lesson of the case is that

landowners should monitor potential encroachments and not sleep on their rights.

The servient owner can also authorize others (e.g., lessees) to use the land subject to the easement if

Land-Use there is no interference with the rights of the easement holder. This means, for example, that the underlying

property owner theoretically could authorize use of a canal right-of-way for a power line or other utilities

Non-Interference

without the consent of the canal easement holder if there was no interference with the canal. It also

means the landowner could subdivide his or her land for residential development, but only if that could be

accomplished without unreasonable interference with the purpose of the easement.

Duration

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

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

Continuance easement that the written agreement specifically states that the term is perpetual and that it states, as clearly

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

Permitted Uses and Modification of Use

An easement does not convey the unlimited right to use the covered property. The rights of the

easement owner are measured by the purpose and character of the easement. The use of the easement is

Rights

limited to the use that is reasonably necessary and convenient for the intended purpose of the easement.

Limited

Of course, the intended purpose is not always clear from the easement language itself. Interpreting an

easement often requires an investigation of the intentions and circumstances of the parties at the time

of the original grant or reservation. These interpretive problems are particularly difficult with irrigation

easements, because many of them are very old and the character of the areas where they exist has changed

dramatically in recent years.

In Jewell v. Kroo, 268 Or 103, 517 P2d 657 (1973), the Jewells owned property for which a spring

supplied irrigation water. A prior owner granted a neighbor the right to use 500 gallons per day from the

spring. The spring was located in a ravine; its water was retained by a rock and earthen dam that was three

feet high. The Kroos bought the neighboring property and wanted to use the spring under the terms of the

earlier agreement. To do so, they removed the rock dam and replaced it with a much taller concrete dam,

all without the Jewells permission. The court found that a larger reservoir was required to enable full

use of the 500 gallons per day, and that the changes made on the Jewells land were consistent with and

necessary for the Kroos use.

Generally, unless the easement contains an express statement to the contrary, use of an easement

may be adjusted to conform to newly arising needs that the parties reasonably should have expected to

develop in the natural use of the land under the easement. This principle is limited, however, by the rule

that an easement owner may not materially increase the burden or impose new burdens on the underlying

landowner. Balancing these concerns is not always easy.

OREGON INSIDER December 2006

Improvements

In Oregon, the right of an easement holder to improve its ditches by lining them with concrete or

Water gunite, or by piping the ditch, has not been directly addressed by the courts. In general, an easement

Delivery owner has the right to improve an easement, but only to the extent that the improvement does not increase

the servient property owner s burden. Guillet v. Livernois, 297 Mass 337, 8 NE2d 921 (1937). It is well

settled that the owner of an easement cannot change its character, or materially increase the burden upon

Rights

the servient estate, or injuriously affect the rights of other persons, but within the limits named he may

Unsettled

make repairs, improvements, or changes that do not affect its substance. Wright v. Austin, 143 Cal 236,

239, 76 P 1023 (1904)

State courts are split on whether an easement holder acts within the scope of its easement when

it upgrades its ditches. In Papa v. Flake, 18 Ariz App 496, 503 P2d 972 (1972), the court held that an

Courts Split easement owner who lined an existing ditch with concrete was within the scope of his easement. A

California court, however, has held that lining a ditch with gunite was outside the scope of the easement.

Krieger v. Pacific Gas & Elec. Co., 119 Cal App 3d 137, 173 Cal Rptr 751 (1981).

Although there are no cases directly on point, several Oregon cases pertaining to easements of various

types present fact patterns from which some principles can be derived. In Baumbach v. Poole, 266 Or 154,

511 P2d 1219 (1973), the Oregon Supreme Court indicated that Oregon courts had adopted the general

Pertinent

rule that the grant of an easement includes the right to do whatever is necessary by way of repairs. In that

Cases

case, the easement owner, Poole, wanted to subdivide his property, but needed a better road to meet local

ordinances. 266 Or at 156. He constructed an improved road over a 50-foot easement he had purchased

earlier from the plaintiff. The court held that the road expansion had damaged the plaintiff s property, but

only because Poole inadvertently pushed dirt outside his 50-foot right-of-wayand had removed several

small trees. However, the construction of an improved road over what was likely a dirt or gravel 50-foot

easement was not considered by the court to be outside the scope of the easement owner s rights.

The same principles were applied in Hotchkiss v. Young, 42 Or 446, 71 P 324 (1903), a case that also

involved the improvement of a roadway easement. The Hotchkiss court found that the proposed plan

of improvement involved unnecessary interference with the servient estate. However, the improvement

itself was not at issue; the issue was some unnecessary aspects of the improvement that encroached on

and burdened the servient landowner s canal. The defendant purchased a 30-foot right-of-way along the

plaintiff s canal. The defendant improved the roadway by raising and leveling the road. As part of his

improvements, however, he encumbered the flow of plaintiff s canal. The court held that the encumbrances

were unnecessary to the improvements, and therefore the court enjoined their construction. The court

stated, however, that the easement holder had the right to level, gravel, plow, pave, and even grade, and

for the latter purpose dig up and use soil so as to adapt it to the use accorded, and to the nature of the

way granted or reserved. 42 Or at 451.In Beebe v. DeMarco, 157 Or App 176, 968 P2d 396 (1998), the

easement holder, Beebe, wanted to improve her grass and dirt path across DeMarco s property. The right to

improve her easement was granted by the trial court, and the defendant on appeal protested that the court s

judgment would allow the plaintiff to pave the easement, which would impermissibly increase the burden

on the servient estate. The court did not reach that assertion, because there was no indication that the

plaintiff sought to pave the easement. Nevertheless, the court cited Hotchkiss for the proposition that an

owner of a roadway easement may level, gravel, plow, pave, and even grade the easement. 157 Or App

at 181.

In Bernards v. Link & Haynes, 199 Or 579, 248 P2d 341 (1952), the plaintiff landowners attempted

to extinguish an easement across their land that had been granted to a railway company for the purpose of

transporting logs by rail. Over time, the easement owner had begun transporting logs along the easement

by logging trucks instead of railways. The plaintiffs argued that the use had changed because the means

of transportation had changed. The court disagreed. Citing a long line of English and American cases, the

court held that [e]asements, which are one of the numerous instrumentalities by which the day s work is

done, would thwart progress instead of facilitating it unless those who have easements can avail themselves

of the newer and improved methods in the use of the easements. 199 Or at 592. The court relied heavily

on the historical shift from horse-drawn conveyances to the automobile. Case law resoundingly supports

the proposition that an easement originally intended for transportation of person or property is not

extinguished merely because the mode of transportation changes due to technological advancement. By

analogy, piping or lining of ditches is merely a technologically advanced way of transporting water, and

does not represent a substantially different use of the easement.

In Garza v. Grayson, 255 Or 413, 418, 467 P2d 960 (1970), the defendant servient landowner

contested a sewer line easement crossing his property. The deed referred to a public utility easement

running over and across the servient estate. Defendant argued that a buried sewer line was not over and

OREGON INSIDER

Issue #404/405

across his property, and was therefore beyond the scope of the easement. The court disagreed: We do

not accept defendants narrow construction of the terms public utility and over and across mentioned

Water above. Although a sewer line is below the surface, it still may be described as running over and across the

Delivery servient land. The term over does not necessarily mean above. Id.

Finally, in Long v. Sendelbach, 56 Or App 158, 162, 641 P2d 1136 (1982), the Oregon Court of

Appeals adopted the majority rule that an easement granted or reserved by a written instrument in general

terms, without any limitations as to its use, is one of unlimited reasonable use. It is not restricted to use

Unlimited

merely for such purposes of the dominant estate as are reasonably required at the time of the grant or

Reasonable Use

reservation, but the right may be exercised by the dominant owner for any reasonable purpose to which that

estate may subsequently be used. Therefore, there may be an increase in the volume and kind of use of

such an easement during the course of its enjoyment.

Following that rule, the court held that the plaintiff was permitted to use a bridge for a use different

Differing Use from which the bridge had been used for many years. The bridge was owned and maintained by a

neighboring landowner who had purchased an easement across the plaintiff s property. The plaintiff had

retained the right to use the bridge and had done so for mainly agricultural transportation purposes. The

defendant argued that because the plaintiff had historically used the bridge only for agricultural uses, the

plaintiff was prohibited from using the bridge for simple ingress and egress, a use that the plaintiff had

begun after building a new home on the property. Citing the above rule, the court concluded that plaintiff

was not limited to agricultural uses, but could also use the bridge and easement for daily ingress and egress.

The foregoing cases are intended to demonstrate the types of cases a court will look to in analogizing

to the issue of improvements to water ditches. In sum, all the circumstances surrounding the creation of

an easement will be examined before a variation will be permitted. Technological and economic changes

may well provide a basis for enlarging permitted uses, but easement holders should carefully analyze each

situation before taking any action.

Location of Easement

When the location of an easement is not specified in the document creating it, the location may be

Determining determined by how the parties have actually used the land since the easement was created. The guiding

principle in such cases is that an ambiguous instrument will be interpreted in light of the practical

By Use

construction given to it by the parties. 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 flumes necessary

and proper for the conveyance of said water to the premises of [Cook]. Id. at 380. Cook initially built a

six-inch wood flume 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

flume with a walkway wide enough for people to walk along, nailed in places to Spear s trees. Cook began

floating wood down the new flume. The wood often jammed in the flume, causing water to spill over and

damage Spear s property. Spear sued and lost. On appeal, the Oregon Supreme Court affirmed. The main

reason for the affirmance 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 flume and was

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

Sometimes the instrument creating the easement simply describes the land that it affects with no

attempt to specifically locate the easement. This is called a blanket easement, as in the Spear case.

Blanket

Reserved easements in federal patents were always blanket easements. The rule in such cases is that

Easements

unless the owner of the underlying 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

interference to the servient estate.

Access, Maintenance and Other Secondary Rights

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

Secondary it and, if necessary, repair it. Such rights are sometimes 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

Easements

Irrigation and Water Rights 990 at 1750 (2d ed 1912) .

The right and duty to maintain and repair an easement generally rests on the party receiving the benefit

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.

Carson v. Gentner, 33 Or 512, 52 P 506 (1898). Such rights are subject to the limits discussed herein.

The easement holder s failure to maintain and repair an easement violates the rights of the servient

owner. If both a servient owner and an easement holder contribute to the damage of the easement,

contribution from both for the costs of repair and maintenance is allowed. A frequent problem in allocating

OREGON INSIDER December 2006

maintenance and repair obligations among several users arises when the easement is damaged by casualty

and not by any party s particular fault. In 1876, Carson took control of a ditch across state-owned school

Water lands and used it to divert water for mining purposes. In 1883, Gentner settled on the property and

Delivery subsequently obtained a homestead patent from the state. The patent did not contain an express reservation

of water and/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 rights, and won. On appeal,

the Oregon Supreme Court affirmed. The court held that Carson had a vested ditch right under an Oregon

statute similar to the Carey Act ee current ORS 273.761) and held that the right was not dependent on any

express reservation in a deed to the patentee. Carson v. Gentner, 33 Or 512, 52 P 506 (1898).

TRANSFER OF EASEMENT RIGHTS

A transfer of the servient property to a third party does not free the property of the burden of the

easement unless the grantee is a bona fide purchaser without knowledge or actual or constructive notice

of the servitude. Recording is a crucial step in protecting easement rights and avoiding disputes later

on. A purchaser of the servient property and other third parties automatically have constructive notice of

easements properly recorded in the deed records. ORS 93.710. A purchaser also will be considered to

be on notice of any existing servitudes that would be apparent from a physical inspection of the property.

Notice of

Silvernale v. Logan, 252 Or 200, 206-07, 448 P2d 530 (1968) (parties are charged with constructive

Easements

knowledge of easement if they should have known, by using reasonable observation and intelligence,

that property was subject to easement). Thus a purchaser would likely take title subject to unrecorded

easements for such things as pipelines or ditches when the existence of such easements might be inferred

from inspecting the property.

An easement appurtenant to land is automatically transferred by a transfer of the estate, or portion

thereof, to which it is appurtenant. Such an easement cannot be transferred independently of the dominant

estate.

When a dominant estate is subdivided, each grantee is given a right to all appurtenances. Therefore,

an easement that was appurtenant to the entire property will continue to be appurtenant to each of the

subdivided parcels. An increase in the burden on the servient estate that might unreasonably interfere with

Subdivision

the servient owner s rights, however, would not create easements identical to the underlying easement. In

such instances, unless specifically provided otherwise, the underlying easement is apportioned between the

grantees in proportion to the conveyance to each. See Ruhnke v. Aubert, 58 Or 6, 113 P 38 (1911) (water

right passes in same proportion as land sold bears to entire tract).

TERMINATION OF EASEMENTS AND RIGHTS-OF-WAY

An easement is extinguished when its stated duration has expired or when the specific purpose for

Extinguishment which it was granted no longer can be served by its continued existence. Also, certain easements may be

canceled by the landowner if the easement holder has breached a material term of the easement document.

Permanent, Temporary and Renewable Rights

An easement by prescription will not be extinguished as a result of a change in its use alone. The

prescriptive easement, however, will be extinguished when the change in use puts too great a burden on the

Change of Use

servient estate, when it is too different in nature and character from the original use, or when the purpose

Not Enough that the easement serves for the easement holder is greatly changed.

An easement can be extinguished by a conveyance, similar in form to a conveyance granting an

easement, in which the easement holder releases his/her interest in the servient estate. Because an interest

Releases in land is being conveyed, the release should be written and should comply with the formalities of the

statute of frauds (requirements under contract law). If, however, an easement holder orally releases the

servient estate and the owner of the servient estate, in reasonable reliance, substantially changes her

position to her detriment, then the oral release will be binding on the easement holder. The easement holder

in that event is equitably estopped from denying the release.

Forfeiture and Abandonment

An easement ceases to exist when it is abandoned. This does not mean, however, that an easement

Abandonment

holder must make continuous use of an easement once the interest is created. Abandonment occurs only

if there is evidence of an intent to permanently abandon the easement. A variation in the use made of

the servient estate by an easement holder does not necessarily indicate that intent. Nonuse, alone, is also

insufficient evidence of an intent to abandon.

OREGON INSIDER

Issue #404/405

If the need to use an easement has not yet arisen, the easement will not be deemed abandoned by the

mere passage of time. However, nonuse is relevant evidence of intent to abandon, unless the nonuse is due

Water to forces beyond the easement owner s control. Jon W. Bruce & James W. Ely, Jr., The Law of Easements

Delivery and Licenses in Land 905[2] at 9-32 (1988). Nonuse of substantial duration may give rise to the inference

of an intent to abandon. A greater degree of evidence will probably be required to establish abandonment

when such a finding may result in forfeiture of a valuable right.

Prescription

Rights to easement use are subject to hostile takeover. An easement may be lost by prescription

Hostile

(similar to adverse possession ) if the use by the owner of the servient estate satisfies all the elements

Takeover

required for the creation of an easement by prescription. The only difference between the prescription

necessary for termination and that necessary for creation is that adversity may be more difficult to establish

to prove termination of an easement. Since the owner of the servient estate is entitled to use the servient

land as owner of the land, the prescription period will not begin to run unless the use by the owner of the

servient estate is clearly inconsistent with the use of the easement. Damming of ditches and locking of

gates may constitute such inconsistent use. Irrigation easement holders subject to such behavior can avoid

losing their easements by either formally permitting the behavior (thus rendering it not adverse ) or by

challenging it in court.

Tort Liability

Easement holders have certain duties toward third parties that enter lands covered by the easement.

The scope of these duties depends on whether the third party has been invited for some business purpose

Duties to

of the easement holder (for example, a party constructing a new diversion structure) or is merely allowed

Third Parties

or not prohibited from crossing the land (i.e. where a commonly used path follows an irrigation ditch).

Generally speaking, an easement holder s only duty of care toward licensees is not to willfully injure

them; on the other hand, for invitees, the easement holder must take precautions to avoid any reasonably

foreseeable injury. Martin v. Houser, 299 F2d 338 (9th Cir 1962). Easement holders are advised to be

aware of any third parties that use the land subject to the easement, to determine whether these parties are

invitees or not and to take appropriate steps if there are any potentially dangerous features of the irrigation

ditch or other facilities.

In Martin v. Houser, 299 F2d 338 (9th Cir. 1962), Houser owned an easement across Martin s farm and

had constructed an irrigation ditch on it. Martin s son was chasing a stray cow on a path along the bank

of the ditch, and tripped and fell into the diversion structure, injuring himself. Martin sued the easement

holder and lost. The court held that Martin and his son were not invitees of the easement holder; rather,

at most, the easement holder simply did not forbid them to travel in the easement on the path above the

ditch. Martin and his son were thus mere licensees, and as such, Houser owed them only a duty not to

willfully injure them. As that clearly had not occurred in that case, Houser was not liable.

CONCLUSION

Merely because one owns a water right does not mean that a proper right of access exists to deliver

the water to the place of use. Issues surrounding easements can be particularly troublesome when no clear

written agreement spells out all the terms and conditions that apply.

The second part of this article, to appear in the next Oregon Insider, will go into greater detail about

the precise scope of specific types of easements, and discuss the effect of subsequently enacted laws and

regulations, including the federal Endangered Species Act.

FOR ADDITIONAL INFORMATION, CONTACT:

David E. Filippi, Stoel Rives, 503/ 294-9529 or email: abpn21@r.postjobfree.com

Please Note: The preceding article is based in large part on materials included in a Workbook

entitled Easements for Water and Land Use (October 2005). Portions of the Workbook were

prepared by the author and Stoel Rives LLP, and are included here with permission by the

Oregon Water Resources Congress for whom the Workbook was prepared.

OREGON INSIDER January 2007

EASEMENTS AND WATER DELIVERY: PART II

Easements by: David E. Filippi, Stoel Rives LLP (Portland)

Please Note: The first part of this article appeared in the last Oregon Insider and provided an overview of

easements and water delivery systems and discussed the rights and duties that apply to such rights-of-

way. In this article, particular types of easements are examined in more detail and the effects of recent

laws and regulations are reviewed.

PARTICULAR TYPES OF EASEMENTS AND RIGHTS-OF-WAY

Numerous federal and state laws allow easements to be granted by the United States, state govern-

ments and private parties. Easements granted under different laws often differ in the scope of the rights

Classes

they convey. This section reviews the laws authorizing the major classes of easements and describes the

& Rights

scope of rights in each of those classes.

FEDERAL LAW

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

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

Derivation law and those relating to reclamation law.

Public Land Law

Carey Act of 1866 and 1870

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 rec-

ognized the property rights of these early water users, it was not until the Carey Act of 1866 that Congress

Formal Rights

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

THE ACT 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 main-

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

purposes herein specified is acknowledged and confirmed; but whenever any person, in the 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 the Carey Act was to grant an easement across federal land to the holder of any vested

water right. The land remained open for this use until the United States patented or otherwise conveyed it.

Any patent of the land was made subject to the easement for ditches and canals. The language of reserva-

tion in the patent typically reads as follows:

Subject to any vested and accrued water rights for mining, agriculture, manufacturing, or other purpos-

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

and acknowledged by the local customs, laws, and decisions of courts.

Once the land was patented, no new ditches and canals were authorized, but all existing ones were

effectively grandfathered.

Right of Way Act of 1891

A quarter-century after the two-paragraph Carey Act was passed, Congress enacted a slightly more

detailed law regarding easements across the public domain. The Right of Way Act of 1891 (1891 Act) gave

Broader Rights broader and better-defined rights and required more in-depth 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 filed, or may hereafter file,

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

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

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

OREGON INSIDER

Issue #406/407

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

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

Easements 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 pur-

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

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

& Subsidiary across the public lands and reservations. The sole authorized purpose of such rights-of-way was at first irri-

Purposes gation, but the 1891 Act was later amended to include a number of subsidiary purposes, such as domestic

uses, transportation and water power.

THE 1891 ACT ALSO REQUIRED MAPPING OF EASEMENTS:

Any canal or ditch company desiring to secure the benefits 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

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

the officer, as the Secretary of the Interior may designate, of the land office 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 office, 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, injuries 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

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

Information

the Carey Act. It is important to remember, however, that failure to comply with this filing requirement

Differences

does not necessarily invalidate the easement. Overland Ditch & Reservoir Co. v. United States, No. 96-

N-797, 1996 WL 33484927 (D Colo Dec. 16, 1996); Roth v. United States, 326 F Supp 2d 1163, 1174 (D

Mont 2003) (holding that an 1891 Act easement across unsurveyed land vests upon construction).

Federal Land Policy and Management Act Easements

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

basic framework of the Carey Act 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

Funding

that the earlier acts were direct grants from Congress to those using the public domain, whereas FLPMA

Differences

only authorizes the Executive Department to make such grants if, in its discretion, it determines that is the

proper thing to do. With FLPMA, the transition to a permit-based system was made complete.

AS IT RELATES TO IRRIGATION DISTRICTS, FLPMA PROVIDES:

The Secretary, 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, flumes, 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. 43 CFR

2800. Anyone wishing to acquire an easement across federal lands must apply and go through environ-

mental and other reviews before the government will grant the easement.

Reclamation Law

The policy embodied in the Carey Act and the other public land statutes discussed above was one of

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

Encouraging The policy underlying the reclamation laws contemplates a different scenario, one in which the federal gov-

Development ernment develops large, capital-intensive projects in order to attract whole groups of settlers and to develop

entire areas of the arid west. Because of this basic policy difference, the easements based on the reclama-

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

The reclamation laws do not make outright easement grants as do the public land laws. Instead they

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

ment rights across public land needed for a reclamation project (43 USC 417), and to acquire such rights

from private owners (43 USC 421). Reclamation project works, such as water distribution canals, were

often constructed by private parties such as irrigation district

ar parcel of

property.

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