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.

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