Easements

EASEMENT: An easement is an interest in the land of another which entitles the owner of the easement to a specific and limited use of the others land.

The United States developed the Newlands Project in Churchill and Lyon Counties under the Reclamation Act. The Act and other federal legislation provided for transfer of ownership of United States owned lands to individuals who developed and reclaimed the land. Prior thereto, in 1890, Congress passed legislation that reserved an easement to the United states in all patents of land-deeds from the United States.

Act of 1890: “In all patents for land hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States.”

That reservation in the transfer from the United States in the Newlands Project provided the United States with an easement for canals and drains for the federal reclamation project.

The United States also acquired easements from those who owned their land prior to the government developing the Newlands Project. Those easements were granted by the land owner either through a specific deed or through the landowner applying for and accepting water from the Newlands Project. Those easements were granted in the contracts with the United States and later with the Truckee-Carson Irrigation District. 

There are approximately 380 miles of canals and 34 miles of drains within the Newlands Project. Most, if not all, of the canals and drains were constructed prior to 1930’s. The easements for canals and drains were originally drawn by the Bureau of Reclamation on the Property and Structure Maps for each section of land within the Newlands Project. Those easements can be identified and reviewed by interested parties at the Truckee-Carson Irrigation District’s office.

When the subject of a District easement for a canal or a drain is discussed, a frequent statement that is made is “there is no mention of any easement in my deed.”

Easements are created in many ways. They can be created by express works, either of grant or reservation. They can be created by use and acquiescence; by implied grant or reservation when the owner of property sells a portion to another and there are apparent and obvious uses on the property which indicate that an easement exists. For example, the owner of land sells a portion to another which had irrigation ditches thereon that carried water to the owner’s remaining land. Although the deed did not state that the owner was specifically reserving an easement to himself or the irrigation ditch, it was apparent and obvious, and therefore, an implied reservation of easement for the irrigation ditches was created. The purchaser could not plow or cover the irrigation ditch to prevent water from getting to the owner’s remaining land.

An easement may also be created by prescription or adverse use for statutory period. It can also be created by a public agency acquiring an easement through eminent domain or condemnation.

Once an easement is created, the extent of use and any interference thereof are guided by general principles. The owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying fee title to the land-the servient land. The owner of the easement can make repairs and improvements to the easement and the owner of the servient land cannot interfere with those repairs or improvements nor can the owner of the servient land interfere in the use and enjoyment of the easement by the easement owner.

The District has the responsibility to maintain and repair the easement within the Newlands Project to ensure that they function for their intended purposes. The servient land owner cannot do anything that might or does restrict or interfere with the District’s ability to operate, maintain, and repair the District’s canal and drain easements.

 

Private Easements

There are many easements for canals and drains in the Newlands Project that are not the responsibility of the District. These are what the District refers to as “private easements” as opposed to the District’s or public easements. The same rules apply as with regard to the District’s easement except the District does not get involved in their maintenance, use, interference in use, or with crossing or structures placed in or along those private easements. There are two exceptions, one is the District requires that the private easement is maintained so that they don’t interfere with the District’s easement, and two, the District requires that private easements be established for canals and drains when water-righted property is subdivided or split into smaller parcels. This is to ensure that there isn’t any question between the subsequent owners as to whether an easement exists or does not exist.

With respect to maintenance of those private easements, the laws provide that:

In all cases where ditches are owned by two or more persons, and one or more of such persons shall fail or neglect to do a proportionate share of the work necessary for the proper maintenance and operation of such ditch or ditches, or to construct suitable headgates or other devices at the point where water is diverted from the main ditch, such owner or owners desiring the performance of such work may, after giving 10 days’ written notice to such other owner or owners who have failed to perform such proportionate share of the work necessary for the operation and maintenance of such ditch or ditches, perform such share of work, and recover therefore from such person or persons in default in reasonable expense of such work (NRS 536.040).

Upon the failure of any co-owner to pay his proportionate share of such expense, as mentioned in NRS 536.040, within 30 days after receiving a statement of the same as performed by his co-owners, such person or persons so performing such labor may secure payment of such claim by filing an itemized and sworn statement thereof, setting forth the date of the performance and the nature of the labor so performed with the county clerk of the county wherein the ditch is situated and when so filed it shall constitute a valid lien against the interest of such person or persons in default which lien may be established and enforced in the same manner as provided by law for the enforcement of mechanics’ liens.

 

Construction Easements

There are easements within the Newlands Project and the Truckee-Carson Irrigation District which were obtained for purposes of delivering water to water users through the canals and lateral irrigation ditches. The easements were also obtained for drainage of Project lands. Those easements for the most part can readily be identified because one can physically see the canal or drain. What cannot be identified so easily is the width of the easement that is needed for the purpose of access and operation and maintenance of the canal or drain. Therefore, if any work is to be done within this easement area, you should check with the District’s engineering office to see if you will be working within the District’s easement zone.

With regard to those easements, the property owner cannot interfere with the District’s use of the easement for its intended purpose. Construction or work within the easement zone can and often does interfere with the District’s operation and maintenance of the canals and drains. There are examples throughout the Project of instances where property owners have blocked the District from access or prevented the District from properly maintaining the easement by doing work or construction; placing materials; putting in crossing; or putting in fences and other objects on the easements. It is not uncommon however for property owners to want to make changes or improvements on their property and without the thought that what done or to be done will interfere with anyone at all. Sometimes it is just done without knowledge of the easement or the extent of the easement.

The District has developed a policy to address the construction and placing of obstruction within the easement zone. That policy requires the licensing or permitting of fences, gates, structures, piping, crossings and other matters which might interfere with the operation and maintenance of the canals and drains.

First you should contact the District to find out if the District has an easement in the area of your proposed work. At that time you can find out the width of easement, if there is one, and you can begin the permitting or licensing process, if necessary. Sometimes this process can take a month or longer; therefore, it is best to contact the District’s office as soon as you can early on in the development of your project.

If you construct within or interfere with the District’s operation and maintenance without the proper license or permit, you will be asked to remove the interference and you may be subject to penalties. If you fail to do that upon request by the District, the District will remove the obstruction at your expense.

It is better to proceed by asking what is required rather than going to the expense of completing your project only to find out you now have to remove what you may have paid to have installed.

I recognize there is concern about government agencies involving themselves into matters that seem to be within the property owner’s right but the reason for this slight interference of requiring first the permit or license, is to ensure what is done does not end up increasing the cost to all others who pay for operation and maintenance of the system. Or that the proposal does not interfere with the ability of the District to get water onto and off of the water user’s property.

With the cooperation of everyone who may have an easement on their property, the operation and maintenance of the canals and drains can be improved. If you plan a project near or upon an easement for canals or drains, remember to check with the District’s engineering office first by calling 775/423-2141 or 775/575-2211.

 

Other Easements

The policy of the District is to allow other uses of the easement; however, the District requires such other uses to be first permitted or licensed by the District to ensure that the other uses do not unreasonably interfere with the District’s use. For example, a fence across, or parallel or within the easement is an interference with the District’s operation and maintenance, but if it is licensed or permitted by the District, it can exist. The District will review the requested use and make a determination whether the use unreasonably interferes with the District’s operation and maintenance. 

Another example is a bridge or crossing of an easement. The Districts policy in licensing or permitting such use is to ensure it doesn’t interfere with the District’s use of the canal or drain. The District’s policy is to require a box culvert structure sufficient in size to allow the maximum unobstructed flow of water under and through the bridge-box culvert-when such structure is requested across a canal. This policy is to insure that there isn’t an unreasonable interference with the District’s operations in delivering water to water users downstream from the requested structure. Under the new O&M agreement with the Bureau of Reclamation, the Bureau may also require certain conditions for their approval.