Prescriptive Easement for Irrigation Water Flow

[bookman]

My question involves an easement in the state of:My question involves an easement in the state of: Nebraska

Can I claim prescriptive easement if my neighbor wants to stop irrigation water from my land flowing on to his land? There is, of course, more to the story.

I own a piece of farmland property that came down through the family. It is gravity irrigated and has been so for 50 plus years, and for 50 plus years water has flowed on the neighboring field via a natural drainage waterway. Now, the neighboring field was owned by the family for most of those years. Then about six years ago, the farm was divided among the relatives and a relative got sole possession of the neighboring field. It was farmed by the same renter as my field, and water continued to flow via the natural waterway and it went to three reuse pits. Some it flowed through property and eventually via a natural water way back on to property owned by the family and into another reuse pit.

The relative sold the neighboring field this past year and the new owner took out the three reuse pits, covered over the natural waterway, and installed a center pivot irrigation well. Now he is complaining that irrigation water is flowing on to his property and it may cause his center pivot well to get stuck.

My options are: 1) build a reuse pit on my property at a cost of $10,000 or more; 2) see if I can arrange a different drainage via road ditch and I have no idea of the cost to move the dirt to do this; or 3) claim I have a prescriptive easement and be prepared to go to court over it. One of the options my neighbor has is to re-establish the natural drainage waterway and build irrigation bridges (common practice) so his center pivot will make its rounds. A real ball park estimate to do that is $10,000.

I know from the past (having been around the land more than 40 years), that a big rain will probably re-establish the natural drainage waterway...and probably will flood both the neighbors land and perhaps my land because of what he has done.

Any advice appreciated...and some of it might be actually followed! Thanks in advance.

[jk]

It isn't even a matter of prescriptive easement but simply a matter of not being able to change the natural flow of water so that is affects the flow across another owners property. You could not legally alter the flow going to his land nor can he affect the flow from your land so that it affects you.

If he alters the natural flow of the water, he would be liable to any owners of property that were damaged by that alteration.

an additional problem is whether he could legally alter the waterway without government permission but that is his problem (although it may be a means of somebody requiring him to repair the drainage system without a lot of cost to you).

[bookman]

It is what I think is called an ephemeral waterway. That is, water only runs in it as the result of rain or snow....and irrigation runoff. Don't know if that makes a difference or not. It has been a shallow waterway probably as long as the land has been in the family...which has been more than 100 years.

Thanks

[jk]

generally, no, it doesn't change things. In fact, to explain it a bit more that makes it obvious:

If there wasn't even such a drainage way, if a neighbor alters their terrain which results in water accumulating on my property where it hadn't before, even that is not allowed. You simply cannot alter the natural drainage of the land so as to injure another property owner.

[bookman]

He altered the natural drainage so now irrigation water coming off my land spreads out on his land instead of flowing through it. It threats to bog down his center privot irrigation system. He is the one complaining. Now he wants to come on to my property and either change the drainage (which may not work) or dam up the water (which would flood part of my property unless the irrigation water was watched very closely).

Thanks

[LandSurveyor]

The evidence of the existing natural drainage may show up clearly on Google Earth's historic imagery.

Many agricultural areas have aerial photos going back to the 1930's. Your county extension agent would have those if available. You don't have to go back to 1930's imaging to make your point.

Your neighbor is not allowed to back up water on your property (outside of maybe the 50 or 100 year flood) without you granting a flowage easement. Don't do that. Non-premitted flooding is a trespass.

[jk]

He altered the natural drainage so now irrigation water coming off my land spreads out on his land instead of flowing through it. It threats to bog down his center privot irrigation system. He is the one complaining. Now he wants to come on to my property and either change the drainage (which may not work) or dam up the water (which would flood part of my property unless the irrigation water was watched very closely).

Thanks

just tell him no. You aren't going to pay to fix a problem he created and no, you will not allow him to dam the water flow and you will not allow him to alter your land to attempt to fix the problem he created.

[bookman]

Thanks, this has been very helpful. My next step is to have a conversation with the local natural resource district. They have authority to issue cease and desist orders regarding overflow of irrigation water. I do have some maps that show the natural waterway, the reuse pits, and the dam on the waterway to catch the irrigation water. I want them to be aware of the change should my neighbor approach them about any cease and desist order regarding my irrigation water. I doubt they know about his attempt to change the natural water way or the removal of the reuse pits or the removal of a dam on the waterway.

- - - Updated - - -

I talked today with the local natural resource district person. They want my neighbor and I to work it out first, which is understandable. Also, irrigation water is treated differently than surface/diffuse water that is the result of rain and snow.

I think it is pretty definite the neighbor cannot restrict the natural flow of surface/diffuse water.

I am less sure about irrigation water.

Nebraska cases law is less than entirely clear about what is a waterway. Statutes say "Any depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook shall be deemed a watercourse." However, case law says "Watercourse must be stream in fact as distinguished from mere surface drainage." The waterway in question mets the first definition but may not meet the second, which is not clear to me. Also, case law says "an artificial ditch may be a watercourse."

In addition, case law says," Owners of drainage ditch in continuous use for more than ten years acquires an easement for the purpose of drainage and damages are not recoverable by owners of servient estate against owners of easement unless later was negligent in use." Well, the waterway in question has been use for irrigation drainage purposes for more than 50 years and owned by the family. Now it is owned by someone else and my wife (a member of the family) owns the land from which the irrigation water flows. Does she have easement rights?

I suspect it is time to talk with a lawyer knowledgeable in Nebraska real estate law. If I pursue this I get the bad feeling it will depend on the judge and how she/he feels that day.

A solution I checked on today is a reuse pit. It probably will cost between $5,000 and $10,000 dollars and with another $5,000 give or take to bury pipe to pipe the water back up to the high spot in the field to reuse again.