Water rights on our property

greenspun.com : LUSENET : Countryside : One Thread

O.K. people, I need some advice from anyone with any experience with this. . .

My father's family owns a small ranch (900 acres), with six heirs owning equal acreage. My uncle, a cattle rancher, has bought out two of his siblings holdings, making him the effective owner of half the ranch. He is the only person who makes money on the place. He also pays the taxes, and pays each of the other owners rent for cattle grazing.

The family is beginning discussions on the division of the place. My father having passed away, my brother and I are the only children of the original heirs involved in this process, the others are my uncles.

The ranch is set up for cattle ranching; there are at least eight pastures, fenced with barbed wire, and there are two windmills with stock tanks on the property. Here is my concern and interest.

I don't care to make profit with my land, I hunt and camp and view my piece of property as recreational. But I would be a total idiot if I didn't consider that the land I will probably be inheriting DOES NOT have a stock tank on it. Water rights are important here; our region does not receive adequete rainfall to maintain ponds, so in the event I wished to lease out for cattle in the future, a stock tank IS COMPLETELY NECESSARY.

The family is on good terms now, but the future might change, with the older generation becoming a little more "scarce", and the children becoming heirs.

So my question are:

1). I will insist on having water rights, just don't know how to go about it. If legal terms and contracts are brought in, what term should I have full knowledge of and what should really alarm me?

2) I have heard of a term called something like "possession by adverse -". I think it relates to anyone who uses property as if it were their own, can gain legal possession by later claiming that since they are the party using it, the property is now theirs. Does this ring any bells and am I at risk?

Any advice would be greatly appreciated. Thanks in advance for your help.

-- j.r. guerra (jrguerra@boultinghousesimpson.com), December 07, 2001

Answers

If it were me, I would sound out one of my relatives on BUYING a piece with a stock tank on it, possibly with a reverse mortgage so that you don't collect until the currant user has died. That means you make payments now but collect at the currant owners death. You might even ensure that the relative now running cattle have the use of the tank until HIS death. This way you work towards your financial future without alienating your family. Also, you might compare these costs with the cost of putting up a windmill on your own. You may consider whether you can collect more rent for your land if there is water on it. Also, since your uncle is currantly paying for the use of land, I don't think he can claim adverse possesion, or nobody would be renting for long! However, these laws vary from state to state so I cannot say much of anything about THAT!

-- Terri (hooperterri@prodigy.net), December 07, 2001.

you could have everyone involved,, agree to,,if they ever wish to sell,, they HAVE to give the other a chance to buy,,say a year notice,, and that the water rights belong to all the parties involved. Would be better to check with a lawyer,, they may be something in the books already about shareing the water rights,,or that the state owns all the water rights or whatever.

-- stan (sopal@net-port.com), December 07, 2001.

I think Terri has made a good point: buy it from the estate now before it really comes to division. Then when your uncles do the actual division, that chunk of land will already be out of there. Since you are on good terms with them, they may look favorably on you wanting to hold onto some of the family land. It will depend on what your cousins want as well, of course--they may want to hold onto some land, too. It's more expensive to do it this way, but it will preserve family unity, and if you had a fight over the land you'd never feel as good about it. I'd hold off on the lawyer until I could see it couldn't be settled in your favour amoung the family.

-- Jennifer L. (Northern NYS) (jlance@nospammail.com), December 07, 2001.

Please go find a good real estate lawyer! Give him all the details. Your relatives don't have to know what you are doing yet. Get his advice then go to your relatives and if you can afford it buy them out. Once the land is passed down, heirs tend to get greedy and will try to hike up the price. From someone who knows.(daughter of a real estate lawyer)

-- buffy (buffyannjones@hotmail.com), December 07, 2001.

j.r.

What you are asking for here is legal advice. You need a lawyer for that.

I am a real estate broker in Ohio, and what you are calling "possession by adverse" is called adverse possession in Ohio. It works like this if you have land that you are not using, and someone else is using it, they may after a certain number of years claim possession to the land. The number of years is different from state to state, and not knowing what state you are in it is difficult to comment further. One key issue that a judge will look at in a adverse possession claim is, who has been paying the taxes? Sounds to me like you could benefit from having a discussion with an attorney.

The availability of water for a stock tank is probably a negotiated item. I would suggest negotiating an agreement for water with whoever has the water. Get it in writing, and in recordable form. Then record it at your local court house. Same thing for the use of the pasture. If you get the agreements in writing, and recorded then you go a long way toward proving ownership. I would also suggest getting the tax billing back into your name for your portion of the property. This will also establish proof of ownership on your part.

Sounds to me like you need to be ready to be challenged in court, and the best plans will involve a lawyer. Better now than later.

-- Ed Copp (OH) (edcopp@yahoo.com), December 07, 2001.



Go get the attorney, pay him for the advise, you don't need opinion, you need legal advise from a good attorney,(if you can find him or her) and you need it know.

-- David (bluewaterfarm@mindspring.com), December 07, 2001.

Okay, I'm a bit confused here. If you inherited part of this property, surely there is a "tract" or certain acreage to which you are entitled. If so, why not dig your own well on YOUR property? Surely you have a right to do this...it is, after all, your property. It may cost a bit up front, but in the meantime, you not only increase your enjoyment in the use of the property, but you will also increase the value of the property because it now has a well on it! Or, maybe that's too easy. Am I missing something here?

-- Gerry Thompson (glassshack@earthlink.net), December 08, 2001.

J.R., get professional help with this one.

Gerry, I believe J.R. has inherited this property along with several other people. My mother-in-law and 2 brothers owns a 12 acre property that they inherited from their father. All 3 people own the 12 acre piece. No one owns this 4 acres here, that 4 acres there, and the 4 acres over there. All 12 acres are owned jointly by all 3. Which also means that if you want to sell, log, etc. all 3 must agree. It's nice to inherite, but sometimes greed takes over & makes enemies of all.

Good luck J.R.!

-- Michael W. Smith in North-West Pennsylvania (kirklbb@penn.com), December 09, 2001.


Thank you for your opinions. I guess I could give a little more information, but the rest is mainly "family issues".

Basically, Gerry is correct; My brother and I are entitled to one sixth (1/6) of the entire acreage; no one is disuputing this. The property bounds and metes has already been decided. My question was IF legal terms are brought in (and it sounds like it should), WHAT terms should I know before signing any agreements.

Yes, I could invest in $6,000 of windmill, concrete tank / apron on my property,but if I am not GOING to lease now, why spend it up front? My concern is with a possible FUTURE issue; I will not be leasing the property for cattle any time soon. I just felt that having my grandfather, already having two of the above on the whole property, that my property should have legal title to existing water rights. Opens it a can of worms; who pays for maintenance, etc. etc.

Your above answers have convinced me to seek an informal land attorney meeting and discuss the matter with him. Thank all of you again for convincing me of this. Wish me luck.

-- j.r. guerra (jrguerra@boultinghousesimpson.com), December 10, 2001.


GOOD LUCK!!!!!

-- Terri (hooperterri@prodigy.net), December 10, 2001.


"Your above answers have convinced me to seek an informal land attorney meeting and discuss the matter with him. Thank all of you again for convincing me of this. Wish me luck."

I will and do ~ good luck! Take a note pad and use it. Legalese is a whole 'nother language, so don't be afraid to ask the lawyer what a word or phrase means ~ even if you have to ask him every other sentence what something is. Ask the lawyer for copies of anything he shows you (contracts, papers concerning your property, laws from his books, anything) ~ that way you can look back at them later. Investing in a good legal dictionary will help with this.

Good luck again! This is the smartest and best thing you can do.

-- Wingnut (wingnut@moment.net), December 12, 2001.


I suspect that the smartest - and only - thing you'll need to do as far as the land is concerned is to ensure that the the rental agreement is in writing, and signed, and worded the right way. That would take care of the adverse possession issue as far as land is concerned.

However, water rights is another issue. Yes - if you all hold separate title to bits and pieces of the original property you'll need advice. If you all own shares of the the original title as a whole, you'll still need advice - subdividing guarantees your rights, but it also guarantees charges to register the titles, and more charges to register variations like off-property water rights, and good luck!

And that isn't meant to discourage you from seeking legal advice - you need it. However, for your purposes (recreational use, renting back to someone who pays rates and taxes as part of the rent), you may not need to do anything after the advice. Just make sure.

-- Don Armstrong (darmst@yahoo.com.au), December 12, 2001.


Moderation questions? read the FAQ