Wednesday, April 27, 2011

Utah Stream Access Coalition - Amended Complaint

Last November, the Utah Stream Access Coalition filed a lawsuit in Wasatch County district court challenging the 2010 stream access law passed by the Utah Legislature (aka, the "Recreational Use of Public Water on Private Property Act," House Bill 141, or H.B. 141). Last week, the Utah Stream Access Coalition filed a First Amended Complaint. While some of the information has been changed and reorganized, the general arguments and claims for relief remain the same. Of note, however, is that some of the named defendants have changed. Victory Ranch L.C. and Silver Creek - Robert Larsen Investors LLC have been removed as defendants, and have been replaced by ATC Realty Sixteen Inc. The Utah Division of Parks and Recreation has also been added as an additional defendant.

I have a copy of the First Amended Complaint, and I would be happy to email a copy to anyone who is interested. Click here for my email address.

To read an update on this case, click here.

Friday, April 15, 2011

Can Owners of Ditches, Canals, and Pipelines Be Liable for Damage?

Utah Code section 73-1-8 law imposes an affirmative duty on “[t]he owner of any ditch, canal, flume or other watercourse [to] maintain it to prevent waste of water or damage to the property of others.” An easement holder violates this statutory mandate only if he is found to be negligent by failing to follow the standard of care and damage results to the property of another. The law establishes that this standard of care is determined by the reasonable care taken by a person who is “of some experience and skill in the management of water, who would have an awareness of the various hazards in the failure to properly control them and would therefore exercise the degree of foresight and precaution which people of such experience and skill would observe to avoid injury or damage to others and their property.” This statutory duty and standard of care have been applied to pipelines, such that owners of pipelines used to convey water are required to exercise reasonable care in the construction and maintenance of the pipeline. A pipeline owner can be found negligent if the pipeline is not properly constructed or maintained, causing the pipeline to leak and cause damage to another’s property.

In sum, the owner of a ditch, canal, or pipeline can be held liable for flooding or other damage to property if the owner is negligent in constructing or maintaining the ditch, canal, or pipeline.

Thursday, April 7, 2011

Does an Easement for a Ditch Include the Right to Maintain the Ditch?

In Utah, like most parts of the arid West, water oftentimes has to be conveyed a long distance between the source and the place of use. Accordingly, there are a lot of ditches, canals, and pipelines that cross one person's private property in order to convey water to another private party. The person using the ditch, canal, or pipeline generally has an easement, either by prescription or by an express grant of easement. Whether prescriptive or express, the easement includes the right to maintain the ditch, canal, or pipeline.

Utah case law establishes that the easement holder has the right to enter upon the land of the other party in order to maintain, clean, and/or repair the ditch, canal, or pipeline--provided that the easement holder does not cause any unnecessary damage or create additional burdens on the land. Additionally, the easement holder has the right to improve the method of carrying the water; i.e., the easement holder generally has the right to convert an unlined ditch into a lined ditch, or convert an open canal to a pipeline.

The property owner cannot limit the easement holder's access to the easement for maintenance and repairs. For example, the property owner should not "fence out" the easement holder with locked gates, unless the property owner provides the easement holder with keys for the locks.

The underlying property owner also does not have the right to interfere with the easement holder's use of the easement. For example, the property owner cannot change the course of the ditch or canal without the easement holder's consent. The property owner also cannot construct facilities on or in the easement that would restrict the easement holder's access to or use of the easement.