Water Rights in Legal Description for BLA

[Robert Martin]

I am preparing the Legal Descriptions of the resultant parcels of BLA, and I would like your opinion regarding the water rights, and how (or if) they should be addressed in the BLA Legal Descriptions.

The existing parcels we are working with are Parcel “A” and Parcel “B”, created by a BLA for Jones recorded on July 27th, 2000. The legal descriptions in the BLA do not make any mention of water rights. Parcel "A" and Parcel "B" make up an original 160 acres in the SW 1/4 of Section 26.
(Parcel "A" being the Northerly 100 acres of the 160 acres).

Of the 160 acres in the SW 1/4 of Section 26 the 1922 Water Right Adjudication Map and Decree show 156.1 acres being irrigated with 1.95 CFS of water March 1st through November 1st.

Jones granted Parcel “A” to Smith on August 24th, 2000. The legal description of this grant deed states:

“TOGETHER WITH, two-thirds (2/3ds) of all adjudicated water rights which had been appurtenant to the lands herein conveyed and the adjacent lands reserved to Grantors.”

Now we are adjusting the boundary between Jones and Smith so that Smith will have 118 acres and Jones will retain 42 acres. I am inclined to NOT make any mention of water rights in my BLA descriptions that I am preparing. For two reasons:

• I have been trained to not touch water rights in legal descriptions (I’m honestly not sure why, possibly for liability issues of doing it wrong, or possibly some other reason???)

• I am under the impression adjudicated water rights run with the land and will not be affected by the BLA legal description anyway…

Regardless of my reasons (possibly faulty reasoning) I would appreciate your opinion on how the water rights should be addressed in the BLA legal descriptions. Obviously, I would like to set up the future owners with the least likelihood of conflict or litigation over water rights in the future.

If I do address water rights in the BLA legal descriptions one option would be:

"TOGETHER WITH all adjudicated water rights appurtenant to the herein described lands in the Southwest quarter of said Section 26.”

Owner’s (Smith’s) opinion is it should read something like this:

"TOGETHER WITH (118/160th) of all adjudicated water rights which had been appurtenant to the lands herein described and the adjacent lands in the Southwest quarter of said Section 26.”

(118/160) was calculated by the owner due to him getting 118 acres of the original 160 acre parcel. Technically (118/160) is not correct due to the fact that the entire 160 acres of the Southwest quarter of Section 26 is not shown as irrigated on the decree map. And that is why I’m hesitant to include the precise fraction of (118/160)

Thank you for your time,

[David Kendall]

It is an interesting question. I have no prior experience with these matters. I understand that there are surveyors and engineers who specialize in water rights.

I would be inclined to punt this conversation to the attorney or title company unless I could reasonably determine the boundary of the 156.1 acres or there was an explicit written agreement between the parties, regarding the resultant adjusted water right allocation, which I could keep for my file (or better yet record it) in the event that someone came back around to contest it later

[Robert Martin]

... I would be inclined to punt this conversation to the attorney...

There is an attorney involved in the BLA, he wrote the original purchase agreement between Smith and Jones. I have posed the question to him, and I have worked with him on other water right issues that have gone south... so we both know what kind of issues we want to avoid. But I really would appreciate other surveyor's opinions.

[Ric7308]

Is there a location aspect of these water rights? If not, its a legal aspect which needs to be addressed elsewhere in the recording instrument and not necessarily within the body of the legal description. As David said, I'm not an expert in water rights by any means, but that would be my first question as a surveyor. If there is no location aspect, then why would I be concerned with it?

[Mike Mueller]

Is the original location of the 156 acres that benefit from the water rights easy to determine? Is it easy to figure out if the 4 acres that were not irrigated were in originally in parcel A or B? I ask because I would lean into giving a fraction in the description based on what percent of the original 156 acres they now encompass, IE 118/156.1 unless Smith's parcel contained any of the original 4 acres that DID NOT have water.

The first version makes the actual water split an unknown. It will require some other action/document/research to make it clear who gets how much water. It appears that the intent is just to give a claim for a court case later, or as CYA to make it clear that the water rights go with the land.

I have been involved with a few water rights squabbles where the old deeds make reference to fractions more as identifiers, like how old deeds refer to "the Miller Ranch", and when you add up all the various rights in the deeds there is more than %100. In my experiences it has always involved a spring. The worse case was a spring that was split into thirds, and then those thirds are split into additional fractions, which were then split and combined in about 15-20 transfers over 50 years. I wish the old scrivenors had made it clear that when they split a new lot out by deed and gave it water rights that they new parcel was gaining 1/2 of the 1/3 that was originally granted to the parent parcel, so it was clear that it was 1/6 of said spring. Compounding this was various lot line adjustments which where silent on the water rights.

If I were to retrace this, I would love to see it spelled out clearly what the owners of Parcel A and B understood the situation to be, since most folks just want to know the final amount of water they get. For example:

"TOGETHER WITH 118/156.1 (75.59%) of the water rights which were granted/created/confirmed(?) by the 1922 Water Right Adjudication Map and Decree (insert reference to book/page etc) for the Southwest quarter of said Section 26.”

Since you are creating both descriptions, which together have all the original water rights, you can ensure there is no conflict and its clear for everyone, especially the landowners.

As Ric said, this could be done in a separate transaction that quitclaims and re-grants clearly the current understanding between the landowners. Only reason I would include it in the adjustment descriptions is so that it shows up easier in future research and is clearer for future buyers/landowners.

Please take this with the caveat that I am approaching it from my experience trying to unravel crappy descriptions and not from a legal/court view. I would leave that to the attorney to polish up the common sense solution.

Good Luck!
Mikey Mueller, PLS 9076
Sonoma County

PS is there need for easements for ditches and canals? IE how does the water get to the respective parcels?

[LS_8750]

Having performed the research necessary to dig up water rights agreements in the wine country, the biggest headache I've found is finding water rights matters embedded in other documents. Even with a reliable chain of title, having to read through every document to find the water rights matters is a pain in the neck. And then, of course the water rights matters are written up all wrong and lacking easements to facilitate the water rights matters.

I would suggest a separate master agreement focusing purely on the water rights matters and then referencing the boundary line agreement within the water rights agreement.

What happens when the lines get adjusted in the future or the lands get subdivided and there is no reference back to your BLA with embedded water rights stuff? Or whatever other crazy land use issues might arise having nothing to do with your BLA?

[RAM]

clarify BLA? not that it matters but are you doing a Boundary Line Agreement or a Boundary Line Adjustment (Lot Line Adjustment)?

[Robert Martin]

clarify BLA? not that it matters but are you doing a Boundary Line Agreement or a Boundary Line Adjustment (Lot Line Adjustment)?

BLA=Boundary Line Adjustment in these parts. I apologize for not clarifying that.

After discussion with the attorney involved I'm pretty sure I'm going to include the following note after the legal description of each resultant parcel:

"TOGETHER WITH all adjudicated water rights appurtenant to the herein described lands"