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Ditch Rights and Easements - 20 Questions on Legal Aspects

Ditch Rights and Water Rights.

Law regarding ditch rights on private property are separate from water rights in Wyoming.  While under certain conditions (W.S. 41-6-301 through 41-6-308) disagreements over the use of a ditch can be settled by decree of the water commissioner, the more common problems are not under the jurisdiction of the water commissioner.  

The Wyoming Supreme Court in 1912 noted the separation between water rights and ditch rights in the Collett v. Morgan case:  "The Board of Control has no power or authority to determine as between parties the ownership or right to the use of a ditch.  Its duties are confined to the distribution of the waters of the state, the granting of permits to use the waters of the state for beneficiaries' use and the general supervisions of such waters".  

Here are some commonly asked questions: 

1.  Where are the water statutes that pertain to ditch easements and rights-of-way?  

Answer:  There is no water statute referencing ditch easements.  Ditch easements are civil law and common law rather than water law and require agreement between the affected parties or litigation in court. 

2.  How do I know if my ditch has an easement across my neighbor's property?  

Answer:  An easement for a ditch crossing neighboring properties will be recorded in the county clerk's office.  The recorded easement will normally contain specific lengths, widths and other conditions of the easement.  

3.  If I check the county recorder and find no recorded easement does that mean my ditch has no easement? 

Answer:  No.  Sometimes easements have been agreed to and signed but not recorded.  In other cases, no written documentation exists but an unwritten easement by prescription may protect the ditch right-of-way to cross neighboring property. 

4.  If I cannot find a written easement how do I know if I have a prescriptive easement? 

Answer:  In 1956 the Wyoming Supreme Court in a case called Haines v. Galles said:  "Easements may be created by prescription or under the more modern doctrine of presumption.  The courts presume that from long possession and exercise of right by the defendant with the acquiescence of the owner that there must be a grant by the owner of use.  The rule is that the period for acquiring an easement corresponds to the local statute of limitations which in Wyoming is ten (10) years.  In short, the fact that a ditch is found to exist in its present location suggests that at some time in the past the landowners agreed that it could be constructed there.  If it has existed for a period of ten years or longer it has probably established its easement and cannot be removed except by agreement of all the parties."

5.  What if the ditch has been in place for a period of time less than the ten (10) year period prescribed by the statute of limitations? 

Answer:   Then it may not have established a prescription easement, and its existence may be challenged in a civil court by any affected party. 

6.  If I am buying or selling land with water rights and there is no documented easement for my ditches which cross neighboring properties what assurance do I have that the easements are secure if I feel sure they have been successfully acquired by prescription by being in place ten years or longer? 

Answer:  This question was addressed by the Wyoming Supreme Court in 1893 in the Franks v. Hicks case and the court stated:  "A water right acquired for irrigation of lands and the ditch or other conduit for the water passes by conveyance of the realty without being specifically mentioned". 

7.  If I have a ditch right by prescription across neighboring properties what do the statutes say about the width of my easement--how many feet am I allowed alongside my ditch to come and go on the neighboring property? 

Answer:  There is nothing in the statutes that specifies a required width for ditch easements.  The owner of the ditch is entitled to specific limited access which is for the purpose and function of the ditch.  In Wyoming, the view is that the holder of the ditch easement has the right to expect his ditch to remain in its historic physical location with the right to conduct reasonable maintenance.  For example, the easement for a small ditch would allow small equipment for maintenance while a larger ditch would have a larger area for maintenance equipment.  

There is no provision for the ditchowner to construct a road along the ditch through the other owner's property or to expect to be able to use any other roads.  The Wyoming Attorney General in 1965 stated that an easement must be held to the narrowest limits compatible with the principle right, which is the use of the water.  No unnecessary injury must be done to the lands of another.  

8.  If the ditch which brings water across a neighboring property to my land falls into disrepair whose responsibility is it to have it repaired? 

Answer:  Wyoming statutes state that he owner of any ditch for irrigation shall carefully maintain the embankments so that the water may not flood or damage the premises of others.  In the 1905 case of Howell v. Big Horn Basin the Wyoming Supreme Court observed that:  "It is well settled that the owner of an irrigation ditch is bound to exercise reasonable care and skill to prevent injury to other persons from said ditch and shall be liable for such damages occurring to others as a result of his negligence in maintaining or operating the ditch".  

9.  If my neighbor fails to properly maintain his ditch across my property can I ask the Water Commissioner to institute damage or liability proceedings against him? 

Answer:  No.   A ditch is private property and anyone who believes his private property rights have been violated must institute damage proceedings in civil court.  The water commissioner, on inspection of an under maintained ditch that cannot handle its properly adjudicated amount of water may restrict the headgate of the ditch to divert what the ditch can safely carry.  

10.  What if I clean my ditch through a neighboring property and my neighbor runs his livestock in that same field and that livestock breaks down the banks of my ditch--am I obligated to maintain the ditch so that my water doesn't damage his property even though the disrepair was caused by his livestock? 

Answer:  Reasonable maintenance is all that is required.  It is also generally agreed that one who causes his own problems is not entitled to relief from another party.  In 1976 the Wyoming Supreme Court in Bard Ranch v. Ward said:  "The owner of an easement and the owner of the land encumbered by the easement each possess rights and each must respect the other's use".  

11.  It is clear my neighbor has the right to enter my property to maintain his ditch--what will happen if I try to stop him? 

Answer:  The Wyoming Attorney General addressed this question in 1965:  "The ditchowner as the dominant has the duty of keeping the ditch in repair and not the landowner.  He has the right of entry upon the servient estate to make repairs and to clean out the ditches and if the landowner interferes, injunction lies".  

12.  If a neighbor's ditch crosses my land in a location which is cumbersome to my operation can I destroy the ditch?

Answer:  No.  One who destroys a private irrigation ditch is liable for the difference in value of the land belonging to the owner without the ditch and with it.  

13.  If my neighbor's ditch that crosses my land is in a location which is a hindrance to my operation can I require him to move the ditch or put it in buried pipeline? 

Answer:  Both may agree to a shared project to create advantages for both of them.  However, the ditchowner may refuse to enter such an agreement if the ditch has historically been adequate for his purposes and well maintained.  

14.  If my ditch that crosses a neighbor's land has caused a seeped or boggy spot in his property am I required to stop the seepage if he so demands? 

Answer:  Technically yes--see answer to question 8.  If the problem has existed for many years and not gotten worse there may be a defense.  If the landowner bought the land with knowledge that the boggy area was present and existed prior to his acquisition he may not be granted relief.  This is a matter to be litigated in civil court if the landowners cannot reach agreement.  

15.  If I am the owner of a historic ditch crossing another owner's property and he builds a new house or other structure in the vicinity of the ditch which creates damage or seepage am I liable for damages? 

Answer:  Probably not.  Wyoming statutes provide for a priority of right by location which means that if the ditch was there first the owners of any property introduced at a later time are compelled to protect themselves from any damages caused by the ditch.  The same statute requires that if other structures were there before the ditch was built the ditchowner is obligated to care for the ditch in a manner to prevent damage to any property located prior to ditch construction. 

16.  If I own irrigated land within an irrigation district or company and a neighbor starts using a delivery lateral or a waste ditch in which I have always been the only user, can I have the water commission throw him out of "my" ditch? 

Answer:  No.  There is no requirement that a permit map accompanying a filing to the state engineer be made for a multi-owner ditch.  State water administrators have no records to determine such matters and have no authority deciding who can use an internal lateral or waste ditch. 

17.  What statutory guidance exists for when someone places unauthorized obstructions or undersized culverts in a ditch--or any other kind of interference? 

Answer:  Prohibited actions according to Wyoming statutes state: "It shall be unlawful for any person to willfully interfere with or damage any dam or diversion structure with intent to injure any person.  Other statutes that may apply are under Title 23, which is Game and Fish; Title 24, which is Highways; and Title 35 which is Public Health and Safety.  

18.  What if a landowner builds a fence up next to the ditch or across any ditchbank which has been clearly established as being within the historic maintenance easement of that ditch? 

Answer:  Same answer as number 11--if a landowner interferes with a ditchowner's ability to maintain his ditch the ditchowner may seek an injunction from the court. 

19.  What if a ditchowner after cleaning its ditch through my property leaves silt or other dredged materials in piles or deposits it on my fence, road or other property--am I obligated to accept such treatment? 

Answer:  No.  As discussed in the answer to question 7, the ditch easement cannot be continuously expanded without consideration for the servient landowner.  

20.  Does my ditch maintenance easement through neighboring properties include the right to cut down trees that have grown up along the ditchbanks? 

Answer:  Historically in Wyoming the understanding has been that the ditchowner has the right to cut all trees and brush along the ditch as part of his obligation to maintain the embankments so that the water of such ditch does not flood or damage the premises of another".  

To summarize, this article is not intended to provide comprehensive legal answers to parties with questions regarding ditch disputes.   Rather, this is a historic background of how the courts have resolved conflicts over the use of ditches.  It is possible that litigation may be avoided if the parties have information about the law in Wyoming regarding use of ditches. 

If you would like to discuss the law regarding the ditch on your property please contact me at 307.200.1914 for a free consultation.  

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