Q: We have a question regarding well ownership. Years ago A drilled a water well on his property. Later he subdivided his land, and sold the portion on which the well is located. While the well is near the boundary line, everyone agrees it is on the land A sold. Nevertheless, A and B, the owner of the subdivided parcel, continued to share the well. A installed a pump and provided the electricity for it so that both A and B could use water from the well. C bought the land from B and the water use arrangement continued. Now C wants to sell the land. A has advised prospective buyers that he paid for the well and that it belongs to him. Does A have any rights to the well?
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A: Normally, when you sell land you sell all rights. The fact that you made improvements to the land does not mean that you keep rights to that improvement. Anything that is attached to the land, such as a building, is deemed part of the land and passes to the buyer. A well or dugout would also fall into the category of a permanent improvement. Obviously, the person who has made an improvement to the land will try to recover the cost by asking for a higher sale price.
However, there may be instances where an owner who sells land will want to retain some rights to the land sold. This can be achieved by creating legal instruments such as easements or profit ‡ prendres. A common easement is a right to cross another’s land. A profit ‡ prendre is the right to enter and remove something from the land. Under such an instrument, A would retain the right to enter the land and remove water from the well. Both easements and profit ‡ prendres are interests in land and can be protected by registration in the local land titles office. Assuming that all legal requirements for such an instrument are met, such a registered instrument binds all future owners of the land. A search at the local land titles office will show whether A has such an interest in C’s land.
Alternatively, A could have entered into a contract with B that would allow him to continue to use the water. Unlike an easement or a profit ‡ prendre, a contract is only binding between the parties and does not bind future owners of the land. Even if a future owner is made aware of the contract, under the land titles system in Western Canada the new owner would not be bound to honour the contract.
If A is scaring off prospective purchasers by telling them the well doesn’t belong to the land, he could be liable for damages suffered in not being able to sell the land. However, before proceeding to court, I think it would be advisable to try and resolve this. Perhaps A only wants to ensure access to the water.
