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It’s your Land – Or Is It?

it’s your land – or is it?

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Published date:

October 21, 2015

Last updated date:

October 21, 2015

By Manny Manriquez

After years of scrimping and saving, you are finally moving out of your cramped, noisy city apartment to a place in the country. This space – every brick, stone, and stick of it, from the modest two-bedroom “starter” home to the five precious acres of open space around it – is yours. Or is it? For example, who owns the water in that stream that crosses the north corner? Even more relevant, who owns the water in the irrigation ditches that run alongside your road? And by own, I mean, “take responsibility”. If beavers take up housekeeping in your section of that stream, and the land floods and becomes unusable, who will fix it? Who will either remove the beavers, or grant you a tax incentive for the lost acreage and repurpose it as wetlands, or simply tell you life’s a struggle and then you die? Not only does the answer depend on many factors like annual rainfall, the availability of water to urban areas, the density of the population, and the kinds of industry that may have pre-emptive rights, but it even depends on whether you live in the East or in the West. Eastern Water Law In the East, in Massachusetts for example, water was once an “absolute ownership”. Under this “riparian doctrine”, landowners could withdraw as much water as they needed from rivers or from wells (i.e., groundwater). Even as the state developed, and towns started to grant special water rights to incoming organizations like schools, factories and farms, judges held out for absolute ownership, ruling only that the owner of the land “leave the current diminished by no more than is reasonable.” Things have changed, largely as a result of severe drought in the 1960s and 1970s. Massachusetts wetlands now have a buffer zone around them, and activity is regulated. Large water users in other areas – factories, golf courses, cranberry farms and the like – must now obtain a special permit if they are using more than 100,000 gallons-per-day, or gpd. That permit may also have a number of prohibitions attached (e.g., time of day, in the event of an emergency, during a drought, etc.) Western Water Law If you live in the West, where rivers are not so common, your land falls under the “prior appropriation doctrine”. For example, if you moved to Yuma, Arizona in the 1930s and wanted to start a citrus farm, and you were the first farmer in the area to use water from the river, then you were a “first user” – and you had a preemptive right to the water. In recognition of the fact that Native Americans were the first users, the law surrounding Western water rights has changed in the last five decades. Otherwise, the prior appropriation law holds: you can buy land in Colorado, but that doesn’t mean you can drill a well. In addition, if you are the last to buy land along a river, and there’s a drought, you will be the first to lose water rights. These water laws change from state to state, along with your landowner rights to minerals (oil, gas, diamonds, and molybdenum). The only way to be certain what you really own – and what you are entitled to – is to contact an attorney. Which is something you should have done before buying the land.
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