In California, the right to take water is an interest in real property and constitutes one of the most complex areas of real property law in the state. In California, overlying water rights are the rights of a landowner to take subsurface water that flows beneath or that percolates to the land for use on the land. A well is typically used in order to access the subsurface water by the overlying landowner.  It is possible for multiple landowners or others to share water taken from a well.  This can be done by agreement or just by taking the water.  This article focuses on taking water from the well of another without an agreement. 

In order for a non-landowner or adjacent landowner to establish the right to take water from a well on the property of another (called an “appropriator”) without an agreement, prescriptive rights must be established. Current California case law establishes that prescriptive rights for taking water come about when the appropriator takes and uses non-surplus water from the land belonging to the overlying owner in a manner that is actual, open and notorious, hostile and adverse to the overlying landowner, continuous and uninterrupted, under a claim of right, for the statutory period of five years. So, if you are an appropriator (an adjacent landowner or another person) who has been taking water from a well located on the property of another in a manner that is easily observed by the well owners for more than five years without permission from the well owners, you may have prescriptive water rights in that well.  However, you will have to prove that the water taken is “non-surplus” water which may be more difficult to prove than one would think.

Taking only excess or surplus water in the manner noted above does not create prescriptive rights. The water taken by the appropriator must be “non-surplus,” defined as water that the overlying landowner needs for reasonable and beneficial use.  Establishing that the amount of water taken by the appropriator is “non-surplus” water would require extensive investigation and research by experts. However, once it is established that the water taken is not surplus and the other elements for prescriptive rights have been established, the appropriator’s right to the water takes priority over the overlying landowner’s rights.

It is important to note that an overlying landowner and well owner giving the appropriator permission to continue to take water from the well does not necessarily terminate the prescriptive rights acquired by the appropriator.  This is because prescriptive water rights are acquired after meeting the above requirements for the statutory five year time period. It is also noteworthy that the prescriptive rights acquired by an appropriator who is an adjacent landowner may transfer to a subsequent purchaser of the adjacent land. 

So once prescriptive rights in water from a well are established, is there any defense for the overlying landowner who owns the well?  The answer is yes.  Prescriptive water rights can be extinguished by nonuse for a period of five years. Additionally, prescriptive water rights are limited to the amount of water actually taken during the prescriptive period.  So, an appropriator’s rights in water taken from the well are not exclusive.  In essence, if the overlying landowner, the well owner, has been pumping water from their property during the prescriptive period, evidence of the overlying landowner or well owner’s pumping could be used to limit any prescriptive water rights the appropriator may have in the water from the well.

It is important to note that although perspective water rights arise as soon as all elements noted above are met, even without court adjudication, conclusively establishing prescriptive rights to pump the water from the well of the overlying landowner will have to be established by a quiet title action through the court system. A quiet title action is a lawsuit brought in the appropriate Superior Court to settle and determine the parties’ conflicting claims to the property and to obtain a declaration of the interest of each party. If you are an appropriator and were to pursue prescriptive water rights in court through a quite title action, you would have the burden of proof to show every element of the right claimed in the water from the well. This would include the above noted elements in addition to proving that the amount taken was non-surplus to the needs of the overlying landowner.  Any appropriator or overlying landowner faced with the above issues should contact the Chilina Law Firm or another California law firm practicing in the area of land use and water rights for an analysis of their situation.

Authored by Karen Chilina and co-authored by Gregory J. Chilina

Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email atinfo@chilinalaw.comor visit the Chilina Law Firm Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.

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