Pond Boss Forums POND CONSTRUCTION Selecting a site Is an easement needed to back up a creek?

If your building a dam and it backs up into your neighbors property....do you need an easement?

Sounds like what you would need, unless you like to cause trouble.

Yes -- in writing. You can't back water up on someone else's property without consequences.

Unless your the government. :rolleyes:

...and, it is very possible that the backed up water will give the other landowner legal access to 100% of the body of water.

How do you know that Brettski?

I thought if it wasnt a navigatable creek they dont have access?

Here's a thread you can skim through. skim through


If the pond is navigable, couldn't they just float a boat from their side to your side. The property line has disappeared, unless you have a physical object separating the two sides.

I did the skim through. Sounds kind of tricky...and I bet each state has there own rules.

Face,
About 4 years ago while we were still searching feverishly for the right property to develop, I came across an exciting 50 Ac parcel with 4 long, deep draws that came together and continued on as one larger draw. This larger draw ran off the parcel, continuing on to become a creek. I was really pumped. Then we realized that to get any reasonable water depth, we would have to back up some water into a draw, far enough to go back onto the neighbor's property. Our realtor came highly recommended from a close friend. She was pretty sharp. She told the story of a recent lawsuit in Illinois of a very similar situation that resulted in the ruling that I noted above. She waved us off the parcel for pond development for this reason. We reluctantly passed.
No, I never looked into it much further because I trusted her input. It also made sense that this situation could, indeed, be contested. I don't need the headache.
Maybe Ewest can cast some opinion on this one...?
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(edit; she also noted that the ruling said that the neighboring parcel can use any part of the adjoining waters, but cannot use any portion of the surrounding dry land that was not his.)

You do need an easment at a minimum.

As a point of fact, even if you do have an easment your neighbor can also do somethings if his property starts to see a back up of water. He can re-route it so that your backed up portion is no longer part of the creek, He can, as was stated above, float anything he wants down the creek and into your pond as a navigable water way. He can introduce any fish or critters into your pond he may want to by introducing them into "His Creek". There could be accidental fertilizer spills that make it into "His Creek" That cause major blooms in your pond.

Or you could run into what I ran into which is a neighbor who claimed the water backing up 2 inches higher than it normally did in the past caused major issues with septic and other things. My neighbor( as some of you already know ) decided to take measures into his own hand and destroyed my dam on my property.

Thus even with easments you are running a major risk of having neighbor issues and problems that can get to the point of lawsuits, shotguns, lynchings and maybe more!!!!

Thus as for one who has gone through it. AVOID THIS AT ALL COSTS !!!!!!

Brettski I generally stay out of this type of thread . I did give my thoughts at the first of this thread. The thread that Lance provided is a gem of a job of butchering the facts and law on the situation in Miss. On private man made lakes all shore line owners can use "their" portion of the lake but not the neighbors part. They cite the wrong case and provide faulty links. Please don't rely on legal advice off the net as it could really cost you.

The law is different from state to state and there are many other factors like the intent of the parties , the passage of time , and the reliance of one party on the promises of the other and who paid what for what and others. Water law is a vast and complex area of the law. The best that can be said is contact a natural resources attorney in your state. However all states other than La. are common law states (La. is a civil law state with similar concepts) and in them all private property rights have common law protections against trespass which is what you do if you back water up on someone else's land. This concept of strict liability for causing water to go on others land started with a famous English case of Ryland vs. Fletcher.

So I went down to the county permit office today. I basicly told them that I knew the rules and the treehugger and grading permits I would need, but after the pond is built...does he have the right to use my pond and come onto my side of the property? No one had any idea. I said "You people make up the rules and codes? Why dont you know this crap?" They said I would have to talk to an attorney. Unbelievable. So after much thinking about it...Ive come up with a solution. 2 dams. 1 close to my neighbors property line (but still on my side of the property)..and then the original dam a couple hundred feet down. so instead the pond will be shaped like an "8" instead of an "0" They will be connected with a pipe. It will allow me to put up a fence for privacy, it will keep my fish in my pond, and his fish in his pond.

Face,

Talk to me either here or in private. I had a dam on the original creek(on my property) and one deeper on my property feeding the pond. You need both to maintain the water level where you may want it. I ran and am still running into so many bad neighbor issues that you would not believe. I also had an easment signed and still things got out of hand. I can't tell you enough not to go this route. If you need to tap into the creek then do so, but plan on the water being no higher than the normal creek level. Then you will have very little issue and the neighbor can not come back easily and do anything. I can tell you that even after I brought mine down to normal creek level the neighbor was still irrational and has re-routed the seasonal creek to have it avoid coming onto my property. I have thus spent a bit of money and time piping alternative water supplies to my pond. He had also tried some things that I mentioned earlier about contaminating and putting things into my pond that would cause problems.

Best answer is to not go down that path if you dont have to. Just my $0.02

Eric...How much do you spend on re-routing water? Do you use a pump to keep the pond topped off? Thats a good question..Ill post that somewhere else too.

Sure you run the risk of having a guy dump crap into your pond or re-routing the stream. But my setup is a little different. This deep ravine that we share is on a hillside and my pond is below. My neighbor now is great. Future neighbor...I dont know. But I do know is that there is laws in my state that will not let them alter a creek flow. Backing up a creek is one thing...re-routing it all together is another. There are a couple ponds that count on this tiny creek. Some are owned by me..some are owned by ANOTHER neighbor. I doubt it could happen.

Face, I spent about $500 to re-route water to the pond. It is not done by pumps but rather by re-pitching things in the yard and taking the rainfall out of the gutters of the house and out buildings and bringing them directly to the pond.

I am glad your situation is different with your neighbor. My neighbor was a good friend prior to all this happening and he just went a bit off the deep end. I hope that this isnt the case for you. It sucks when that happens. Good luck with it!!!! If done right and no issues with the neighbors then the seasonal creek feeding can be a nice added feature.

Excellent advice. Spend a few dollars to potentially save you thousands. IMHO if you proceed without obtaining legal council then you do so at your own peril. The status of your neighbors can change in an instant either through sale of a property, death of a property owner or even such things as a life changing event (divorce, birth of a child, etc). Events can change people drastically. Anyway, thats my .02.

Eric, where smallies are involved, you need only send out a signal flare to initiate the resources of the Pond Boss Brothers-In-Smallmouth Association (BISA).

At a moments notice, we can proceed with a naked picket line on your neighbor's property. Trust me, it's more disturbing to your neighbor than it sounds.

We prefer to nude-picket in temperatures over 60 degrees F, however, if required for colder temperatures, we use a single sock as protection. It's still pretty disturbing due to the sock not staying on because of shrinkage.

...Sunil's feet are real tiny

Sunil, Brettski - You made my day. But now I have to go to a shrink I am envisioning lots of naked burly men with fishing rods in one hand and socks on other parts measuring fish up against shrinkage and claiming they caught a 16 inch smally!!! ( Sort of oxymoron thing )

Ahhh you made my day, but truth be told this neighbor might like the sight!!! ----- Not that there is anything wrong with it

"...but truth be told this neighbor might like the sight!!!"

OK. That could be a problem. Perhaps our approach is wrong.

Let us regroup.

Eric I do not know NY law but in most places in the east (out west is different) a person can not divert a creek and thus deny water to a downstream owner. All they can do is make reasonable use of the water on their property.

Eric,

Since the creek is listed as a seasonal creek or in some areas in NY law a drainage ditch, A person can re-route it on their land.

All that being said, all I was trying to let Face know is that sometimes even the best neighbors change and do unexpected and sometimes even illegal things. Mine did that with the breaking down of my dam ...etc. I was just warning about getting into a similar situation. If there is a way to get around it where you don't have to get an easment and don't have to dam up the creek to raise the level, I think that would lessen the potential risk of such crazyness.

I just wouldnt want anyone to have to deal with what I went through, if it can be avoided in the first place.

Eric I agree. I am not sure your crazy neighbor can do that so as to change your water shed unless it is a reasonable use. He would need a valid reason other than to harm you. Judges usually don't like spiteful reasons and are good at dealing with such non-sense.