Shared Wells

One of the readers raised an excellent question regarding the May 30th column on wells.  A fair number of people share wells with neighbours.  The well would be located on one person's land and the neighbour runs a line to the well.

The question that comes up is: what are the rights of the owner and the neighbour?

Unfortunately, there is no easy answer to this question. The rights of each party will depend entirely upon the circumstances of each individual case.

For example: if the parties have a written agreement, the terms of the agreement will determine what the rights of the owner and neighbour are.  However, the agreements may not deal with all possibilities and a situation may arise where the agreement is of no use.

What I can do is give some advice for people who are considering or already have a shared well.

First, a written agreement is always better than a verbal one.  There are good written agreements and there are bad ones. People who make their own agreements will typically have bad ones.  (On the other hand, some agreements written by lawyers aren't that good either!) The odds are better that you'll have a more comprehensive and enforceable agreement if you have it drawn up by a professional.  Given that a new well typically costs several thousand dollars, it's not a bad idea to pay out a little bit for some protection later.

If you are buying a property with a shared well, that is the appropriate time to have an  agreement made up.  You've already hired a lawyer to help you buy the house, so pay a little more to have a lawyer prepare an agreement for the shared well.  If you own the well and a new neighbour is moving in, that is the time to get an agreement with the new neighbour.

From the owner's perspective, you would want to protect yourself from any liability for the safety and potability of the water. In other words, your neighbour needs to assume equal responsibility for testing the water and they must agree to drink the water at their own risk.

The owner would also want the right to terminate the agreement if the capacity of the well diminished to the point that it could only serve one household.

The neighbour would want the right to receive adequate notice if the owner wanted to terminate the agreement, so that the neighbour would not be pressured to go and drill a well immediately.  This is especially important, as there are times of the year when it is impractical or impossible to effectively drill a well.

If the neighbour shared in the cost of putting the well in on the neighbour's land, the neighbour would want some sort of mechanism for compensation if the owner terminated the agreement.  Ideally, the neighbour would want an agreement that gave a right to use water from the well for a specific number of years.