What Is a Water Easement?

Mona D. Rigdon
Mona D. Rigdon
A water easement can give people permission to access a lake or other water resource on someone else's land.
A water easement can give people permission to access a lake or other water resource on someone else's land.

An easement grants the owner of one piece of land, a utility company or another entity the right to do something on land owned by someone else. It also creates a duty for the landowner to allow use of the land as described in the easement. A water easement refers to the right of a landowner or other entity to have access to water lines, drainage or water sources on property owned by someone else.

A water easement may refer to a drainage system.
A water easement may refer to a drainage system.

In legal terminology, the rightful user is referred to as the "dominant tenement." Two pieces of land located along the banks of a creek or river both have access to the water. The person who owns the land downstream owns the dominant tenement. The person who owns the land upstream is the servient tenement. In other words, the upstream landowner may not violate the water easement of the downstream landowner by damming the water flow and denying access to the benefits of the water to that person.

Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.
Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.

A water easement can be created in a variety of ways, and deeds may include a clause stating the terms of any water easement or other easement. An express grant creates a Deed of Grant that separately describes the easement. Easements of necessity may be recognized in case of providing transportation to a dominant tenement if the route is the only means of access between public highway and the land. For example, a barge might need to land near a road that does not otherwise pass through the dominant tenement. Easement by prescription happens when someone performs an action repeatedly and in the open without the landowner's permission for a period of 20 years or more, such as using someone's pond, lake, stream or well.

An easement instrument is a document that legally and officially records the existence and description of the easement. It generally specifies conditions of easement, such as the rights and duties of each tenement. After the document has been created and signed, it is registered on the titles to both or either piece of land. It is usually recorded with the deed in the office of the agency that handles deeds and similar documents for the specific jurisdiction in which the easement exists.

Some types of easements do not require recording or registration, such as those created by legal statute. Utility companies and government agencies must be able to convey water through water pipes in order to provide healthy, usable water to citizens. This provides a legal easement granting the entity in question access to property to install, maintain and service the water pipes. Some properties require a water easement that allows for the draining of water or sewage.

In order for an easement to exist, there must be a servient tenement that grants a benefit to a dominant tenement, specific rights must be set forth, the dominant tenement must not pay for the easement rights, and exclusive rights of occupation cannot be granted. In the United Kingdom, the Law of Property in 1925 says that any doubts as to the existence of a water easement or other easement calls for heavy favor toward its existence. Proving an easement does not exist can be difficult. One such way to do so is to prove the easement was created because of an illegal act.

It is very difficult to dissolve easement rights, but the law does grant the servient tenement owner the right to peaceful enjoyment and legitimate development of his or her own land. Easements do not end when property is sold or bequeathed but carry forward until legally dissolved. They may be dissolved through mutual agreement of both tenements or upon providing proof that the easement is redundant and is no longer needed, such as in the case of a newly built road that does not cross the servient tenement. Easements granted as a condition of subdivision or that grant a right of way may not be removed.

Can I Put a Pool in a Water Department Easement?

It can be frustrating to find out that the only part of your yard large enough for a pool is also a water department easement. Although you own the land and may be free to build on it however you wish, you must consider the potential consequences. If the water department has a legal right to the easement, it can lawfully remove any of your property that is in the way of its work.

If you think the easement is the only place you could build your pool, find out what your options are. First, find out what your local building code says. You may not even be able to get a permit to build a pool on an easement. Even if you do, though, do you really want to go through all the trouble of leveling the space, digging a gigantic hole if it's safe to do so, and building a pool that could be demolished at any time by the water department? Even an above-ground pool, which does not require digging into the ground, is in danger of being destroyed if it's in the easement.

If you realistically expect to use your pool only part of the year, consider getting an above-ground pool that you can collapse and store through the winter. That way, you can enjoy it during the summer with less investment and more options if the water company needs to do work in your yard.

What Is an Easement To Drain Water?

A drainage easement may be a place where stormwater needs to flow during a rainy season or snowmelt. The city or public utility company where you live may have rights over this type of easement. You shouldn't block or dam this area because doing so could cause problems with storm drainage and flooding prevention.

Another type of drainage easement protects downstream water rights. For example, a property owner may have the right to use creek or stream water that flows onto or along the property for enjoyment or irrigation. A drainage easement can prohibit an upstream neighbor from damming or diverting the water, thus denying the downstream neighbor rightful use of the water.

Can the Water Company Dig Up My Yard Without an Easement?

When the title deed to a property includes an easement, it is called an express easement, and it stays with the property when purchased by a new owner. If you look up the details on your deed, you will probably see an express utility easement. It's important to note where the easements are on your property, especially if you plan to bump out your house or add structures to your yard someday.

Even without an express easement on the deed, there is an implied easement if you have utilities on your property. Utility companies, including water and power providers, can legally pass through your property to access, maintain, and repair their equipment. They are even allowed to build new equipment on your property as part of a larger project, and they do not need your permission when they are ready to start.

Because water pipes run underground, when the water company needs to access their equipment it usually means digging up your yard. This is legal and even customary to do with or without advance notice. That said, utility companies do not have the right to destroy your property that is not infringing upon their access. For example, they can't dig up your entire yard or run over your landscaping in areas that have nothing to do with their ability to get to their equipment.

How Can I Make the Best Use of a Water Easement on My Property?

Although learning about easements may make you feel like you've lost ownership over part of your property, there is plenty you can do with that part of your yard. For example, when planning your landscaping, you should avoid planting trees or building gazebos in the easement, but you can put other plants there. Shallow-rooted plants and shrubs will not obstruct a utility company's access to its equipment. Also, if these types of plants get damaged by legitimate utility work, they are easy to replace, so you won't have a huge loss. You can also place temporary items in an easement, such as small play equipment and temporary or kiddie pools. You could also add a patio table and chairs, which are easy to move when necessary.

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Discussion Comments

anon994247

Can someone fill in or build over a established waterline easement?

Primemobi

Property easements are a necessary component of property ownership. There are a number of reasons one might need to obtain an easement; installation of water or sewer lines, installation of drainage lines or ditches, ingress/egress issues, to name a few.

Once obtained, an easement must be filed in the same government offices where land records are recorded and stored. When property is sold, attorneys specializing in land records research the property to determine a number of things, easements being among them. It is important to know what easements have been granted on the property you own.

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    • A water easement can give people permission to access a lake or other water resource on someone else's land.
      By: keller
      A water easement can give people permission to access a lake or other water resource on someone else's land.
    • A water easement may refer to a drainage system.
      By: Robert Harrak
      A water easement may refer to a drainage system.
    • Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.
      By: david hughes
      Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.