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Oops! We Sold the Land and the Water Rights Too?

I did a search but didn't see this addressed... I would like some general advice here...

 

I just stumbled across a government contract that says my grandmother had the right to use 500 acre-feet of water per year from a canal.   The contract says the water right is appurtenant (aka attached) to the land and that she's only allowed to use the water on the map shown in the contract.  It says she can transfer the water right to others and/or her heirs.

 

Years ago my mom sold half the farm land to our neighbor.  He's growing oranges now and so are we.  My neighbor just found out about the contract and says he gets to use half the water for his oranges.  My grandmother paid for the contract.  My neighbor  never paid anyone for half of that water right.  He didn't even know about the contract when he bought that land!  Did we sell half of this water contract when we sold half the farm?

 

Can we use all 500 acre-feet on our half?  We are strapped for cash.  Can we charge our neighbor a fair market rate to use some of the water?

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3 Replies
clayton58
Veteran Advisor

Re: Oops! We Sold the Land and the Water Rights Too?

Based solely on what you've presented in this post, it sounds like you sold the rwater rights along with the land.  What does the contract with the neighbor say?  what does his deed state?  did your grandmother use an attorney when she sold?  If so, contact him, if not, find a good real estate and water attorney.  You need more than the amateur advice you'll find on here.

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Nebrfarmr
Veteran Advisor

Re: Oops! We Sold the Land and the Water Rights Too?

I would guess it varies quite a bit from State to State, as well.
Here in Nebraska, there wiill be a 'map' showing what can be watered, and what cannot, and the right to water is attatched to the land, unless or until it is officially changed. 
I can cite an example of a neighbor who had water rights to 130 acres of his land that he furrow irrigated.  He upgraded to a pivot, which only watered 125 acres, but it sprinkled on some ground that the map showed was outside of the irrigatable land.  He actually had to put a shut off in his pivot, to shut the water off the last tower or two as the pivot came around because the irrigation water could not fall on land that the 'map' did not say was irrigated, meaning he only got to irrigate about 100 acres the first couple years.  After much, much paperwork, permit fees, legal fees, and beating their heads against a brick wall (figuratively speaking) they got the 'map' re-drawn so that they could irrigate the 125 acres under the pivot, if the agreed to transfer the water rights from the other land not under it.  I belive it even makes a difference, where the water turnout is, as far as what land gets water and what doesn't.

It could get very complicated, I suggest you talk to an attourney. 

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Kay/NC
Honored Advisor

Re: Oops! We Sold the Land and the Water Rights Too?

Amen...attorney time. Appurtenances are an interesting concept. 

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