Wayleave / entitlement to Private Water Well

sl

I have a query regarding access to private water well that was resides on my late uncle's farm but was purposefully built to service both my uncle's dwelling and our own dwelling (which is just a small private dwelling house - not a farm or business requiring water usage). Specifically, I would like to know what our rights are in relation to having access to the water coming from that well.

Timeline
1. Private well built in 1960s by my father and his brother on family farm to supply water to a new dwelling house my father was building. This water supply provided (and continues to provide) water to my BOTH my father's brother's dwelling house (and for purposes of his farm) AND to the dwelling house my father built (i.e., where I grew up).

2. While saving to build house, my father and mother stayed in caravan and plumbed the new source of water into their caravan.

3. Planning for house submitted in 1972 - house completed same year.

4. Following year - Father's father died and family farm signed over to uncle.

5. Late 1990s - uncle died, farm inherited by his wife who subsequently left it to her brother and nephew when she died.

6. Since then, the new owners (who do not live in the inherited house but maintain a half of animal stock on the farm) have consistently interfered with the water supply, turning water off without warning, leading to ongoing inconvenience and even damage to various household appliances. On each occasion, we've had to enter the farm in order to switch the water back on again, only for it to be turned back off again at a later time or date.

7. This year - received notification from their solicitor instructing us to find alternative water supply and supposedly the water supply was insufficient to supply their farming needs. On that notification letter, a date has been provided for the termination of water to our house. This is a totally concocted story as there is a very strong water supply in place. An ulterior motive is behind this - e.g., they may want to sell farm. In fact, we've actually maintained that supply since they inherited it WITHOUT pursuing costs from the new owners (they just ignore solicitor's letters) - even though this maintenance has often been caused by a combination of action and lack of action on their behalf.

QUESTION - what wayleave, legal entitlements or protection, if any, does my family have in relation to the well? Do they have the legal right to cut off the water or are their action illegal?

I've heard something about a forty-year rule in relation to water - but can't finding anything in writing about it - does this protect us from having that water supply terminated?

Do others have experience, knowledge and advice relevant to the story I've outlined here? What plan of action could we pursue?
Court is obviously one option but I would be fearful of the costs involved (even though I firmly believe that we would have legal entitlements to the water supply, given the fact that my father built and maintained the well and we have maintained the well since my father's passing).

How likely would we be to be successful should we proceed to court? This seems like the only avenue open to us at this juncture (based on our solicitor's advice).

Any advice would be greatly appreciated.

Victor

You can't get legal advice here. You would do well(!) to talk to your own solicitor.

Unless rights were included in the title deeds of your property, I can't see you getting very far.

The forty years you are thinking of is actually 20 years: http://en.wikipedia.org/wiki/Time_immemorial however, I'm not sure if they could be enforced against someone where it actively costs them money - the pumping of the water.

wazzoraybelle

I have a similar set up with my neighbouring farmer, all based on what appears to be a verbal agreement in the 70's.

In our case the previous owner of our property paid for the well to be sunk an also the pump and pumphouse on the farmers land.

Our solicitors advice on buying the property was that we had a right to the water from the well regardless of whether it appears in the deed or not.

I would think it obvious that if there was a long standing agreement regarding water from the well that that agreement would continue regardless of ownership of the properties. I would think your case would be reinforced by your household having contributed to the maintainence and upkeep of the well.

sl

Thanks for the replies so far. I'm aware that I can't full stand over comments made in this forum but it is nonetheless very useful to get other people's feedback and experience.

In my case, gravity controls the flow of water from the well so it doesn't actually cost the owners of the land on which the well resides anything as such to allow us to continue to receive the water supply from the well. In fact, as already outlined, we are actually paying for the upkeep of the well while they continue to reap the benefits of us actually maintaining it!

As regards having "a long standing agreement regarding water from the well" - no explicit/tangible agreement exists in writing - the well was originally built by my father and his brother (previous owner of the land) with the express intent of supplying water to both my uncle's farm and house plus our new house. (I have one surviving uncle who will testify to this - not sure if this is sufficient or not though) Likewise, it appears rights to the water were not explicitly included in the title deeds of our property. However, I would argue the fact that water had to come from somewhere to service the house and the fact that the well was constructed for this purpose (as well as to supply the farm), then surely the intention / "agreement" was that this well would continue to serve our needs also (i.e., where else could we be expected to get water from).

I would be extremely wary of bringing the case to court as we could incur huge costs if we fail. My solicitor can't give a guarantee that we will be successful - given the amount of ongoing money, labour and time we have put into constructing and maintaining the well I just can't understand this. If a solicitor can't provide this reassurance then who else can? Coming up to Christmas, the budget, the introduction of water charges and with the big financial burden required to get an alternative (public) water supply in place, this is proving very stressful for our family, particularly as the threat of disconnection is not based on a dwindling supply of water as argued by the other side - it is totally based on malice.

wazzoraybelle

I wonder if you could apply for a court order to have a right to water put on your deed. This appears to be the way to go with rights of way following the 2009 act (don't know if it applies to right to water ).

Being able to show that your property has had the use of the water since the seventies and contributed to cost of the infrastructure should go a long way in your favour regardless of your neighbours feelings on the issue.

Maybe a statement also from the previous householders of the neighbouring property as to the understanding that existed and whether the supply was always capable of supplying both properties without problems may help.

I would think that a court would lean toward preserving the status quo. Good luck. Hope everything works out.

sl

wazzoraybelle wrote: »

I wonder if you could apply for a court order to have a right to water put on your deed. This appears to be the way to go with rights of way following the 2009 act (don't know if it applies to right to water ).

Being able to show that your property has had the use of the water since the seventies and contributed to cost of the infrastructure should go a long way in your favour regardless of your neighbours feelings on the issue.

Maybe a statement also from the previous householders of the neighbouring property as to the understanding that existed and whether the supply was always capable of supplying both properties without problems may help.

I would think that a court would lean toward preserving the status quo. Good luck. Hope everything works out.

Thanks for the reply wazzoraybelle. Your suggestions and thinking on the matter are totally compatible with ours. From speaking with the solicitor, it appears that the developments in the 2009 Right of Way act don't explicitly refer to a Right of Way to water and so don't safeguard us in our particular instance - which, to me, is inexplicable, given the importance of water. [I haven't "perused" that Act but presumably that's what the solicitor was referring to].

We are seeking to get the water registered in our name - but not sure if this is achievable given the apparent gaps / loopholes in the law regarding a situation such as our one. I would expect that the court would have to make a calling on this - but of course these things are never as straightforward as one would hope (or expect)! Hopefully, the court system will look favourably on our predicament. Whereas we have everything to lose, so to speak, the new owners have nothing to lose - they will still keep the water regardless of the ultimate decision.

Many thanks again for your input.