My column a few weeks ago looked at a water sharing arrangement between neighbours. The neighbouring quarter was occupied by the owner’s children. What happens to the water agreement if the children sell their land, the questioner asked.
I replied that rights would depend on the nature of the agreement. If water was supplied on a goodwill basis there would be no ongoing obligation.
On the other hand, if there was an easement guaranteeing that A, the neighbour, had the right to run a pipe or ditch carrying water across his neighbour B’s land, as well as other agreements guaranteeing A the supply of water from B, then B would be bound by it.
Read Also
A power of attorney document may no longer be enough
Recently, some financial institutions have begun imposing their own internal form of “verification” requirement with respect to powers of attorney.
I also stressed that water, whether in the ground or on the surface, is crown property and any use is subject to approval by provincial water authorities. All provinces allow household use without the need for permits or licences.
Domestic use in Saskatchewan, from where this reader wrote, includes using water for household and sanitary use, watering of lawns, gardens and livestock, and for limited spraying of crops. In Manitoba, domestic use of up to 25,000 litres per day is allowed; and in Alberta, household as opposed to domestic use is restricted to 1,250 cubic metres per year.
There is no provision in any provincial legislation allowing for the automatic sharing of water between neighbours.
When I queried the authority about this situation it recommended that both owners should apply for a water rights licence and approval to operate. The application would include details of the agreement between the two owners setting out the operation, maintenance and replacements costs of the water system.
Another matter considered would be the easement allowing owner A to run the system that supplies water for him from B’s well or slough over B’s land to A’s farm.
The Manitoba Water Licensing Branch took a somewhat different view. While technically there is nothing allowing a sharing of water in Manitoba’s Water Rights Act, a spokesperson indicated that such a small scale diversion would probably fall “under the radar.” Most farm operations wouldn’t use 25,000 litres of water a day and consumption lower than that, even if shared with a neighbour, doesn’t cause the branch much concern.
A greater concern was the development of communities (a group of households) who shared a joint water source. Nevertheless, the official acknowledged that if the matter came to court, a judge might well rule that a sharing of water even for domestic purposes might require a licence.
Alberta Environment is responsible for administering water projects and licences in that province. I was not able to get a response from the department about how it views small scale water diversions between neighbours.
Regardless of your province of residence, I recommend consulting local water authorities before undertaking any water diversion to your neighbour.
I would also recommend that any agreement for the sharing of water be formalized in writing and that an easement be created allowing for the water flow across the supplier’s land to the user.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
