Legal Question in Real Estate Law in California

A 40 acre parcel ("Parcel B") was cut out of a pre 1914 ranch. The remaining 120 acres ("Parcel A") stayed with the grantor and was aquired later by us. Parcel A has the water right to a spring.

Parcel B was granted "the right to one quarter of the water in the system on the lands of the grantor with the right to connect anywhere between the source and the tank. Under any event shall the water taken be limited to one quarter."

A pipeline leading to Parcel B was connected to the main pipe from the spring and a diversion device installed. Parcel B changed ownership and the new owner destroys the device frequently to get more water. We fix it whenever it happens but grow tired of doing that.

Question: Who has the responsibility to make sure that the amount of water taken is not more than one quarter?


Asked on 5/25/11, 6:45 pm

2 Answers from Attorneys

Daniel Bakondi The Law Office of Daniel Bakondi

I think your question is more, how to prevent the owner of B from getting more than 1/4 of the water. If you wanted my representation, I would first inquire why they are taking more than that, and either come to an agreement if you can agree, or else get a court order preventing them from affecting any device to take more. Contact my office if interested.


Daniel Bakondi, Esq.

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The Law Office of Daniel Bakondi, APLC

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Answered on 5/25/11, 7:26 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Civil Code 801(5) defines the right to take water from the land of another as an easement. In most states, the right to take something from the land of another is a "profit a prendre," and old legal-French term meaning the right to take something from the land of another, but somehow back in 1872 California decided to codify it as an easement. (More info on Google).

So, the law of easements applies. An easement can be extinguished by bad behavior on the part of the owner of the benefitted parcel. This is sometimes called "overburdening" the easement. Unless the apportioning device is somehow defective, I'd say the owner of the benefitted parcel (called the "dominant tenement," and your 120 acres would be the "servient tenement" in legalese) is committing a trespass when he damages the device, and is giving you grounds, perhaps, to go to court and ask that the easement agreement be terminated.

Of course, I haven;t heard the other guy's story, and he may indeed have defenses. Maybe you weren't using all of your 75% allotment. Maybe the device was defective. Maybe he didn't intend to destroy it. If he is totally dependent upon the easement water for household use, a soft-hearted judge might give him a second chance, finding the overburden insufficient to effect a termination and forfeiture of the easement.

In any event, you have a right to expect the 1/4 allocation to be observed and to consider the destruction of the metering device as a trespass, if not something more serious such as malicious mischief (a legal term for vandalism).

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Answered on 5/26/11, 10:54 am

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