Undisclosed Irrigation Easement

[William Johnson]

Jurisdiction

Idaho

Back in 2020, I bought a home and 1.68 acres of land. The home that I bought used to be a part of a bigger farm. A farmer had bought the farm, purely for the land, and sectioned off the home and 1.68 acres to sell to recoup some of his costs. Before I bought the house (and before the land was re-surveyed), he installed a pivot irrigation system on the remaining 40+ acres that adjoined my property and installed another pivot irrigation system on a parcel of land he owned across the highway (about 50+ acres or so). Both irrigation systems feed off a single power meter and canal headgate. I never put too much thought into this.
Recently, I was doing some work on the property and called dig line (811) to locate any underground utilities I wasn't aware of and they located a large water line and high voltage cable straight down my driveway, about 10 feet from my house.
When I look at a satellite image of my property and surrounding area, I can see a stright line where the ground was disturbed that goes from one pivot irrigation head, across the back 40 acres, straight down my driveway, and then out into the field across the street to the other pivot system. I went back through all my closing documents and while I do have easements for the power company, highway etc. - some dating back to the 50's - there is no mention of an easement for this suspected irrigation main line and power through my driveway. If it is there, it was never disclosed.
I do not have any immediate plans of major construction (expanding the house, etc.) but knowing there was a 6"+ line with 50psi of water and a 480v, 3-phase trunk line running under the driveway, I would have thought a little harder about whether or not to even buy the house. I have planted trees in the back of the property and even built a 8' x 9' pole-barn style chicken coop right over the suspected line that would need to be disassembled/torn down/dug up if this water/power line ever needed to be serviced and the seller even watched me do it and never said a word. He is here often, farming the land behind the house....
I believe he had an obligation to disclose the water/power line at the time the property lines were being surveyed or at least he would have had to disclose them to the Title company before closing. The only reason someone would deliberately not disclose this would be the effect on the market value of the property, right?
Any advice, thoughts, etc. would be hugely helpful.

 

[Zigner]

What do you want to do about this?

 

[army judge]

I believe he had an obligation to disclose the water/power line at the time the property lines were being surveyed or at least he would have had to disclose them to the Title company before closing. The only reason someone would deliberately not disclose this would be the effect on the market value of the property, right?
Any advice, thoughts, etc. would be hugely helpful.

Never trust the other party to protect your interests.

If you do your due diligence BEFORE signing the contract and forking over your loot, you are protecting your interests.

If you have doubts, don't do the deal.

You may not get what you think you want, but you're protecting yourself.

Never believe others are more worried about your assets than you are.

Correcting yourself after you've signed on the dotted line and forked over your moola leaves you vulnerable to the whims of others.

Familiarize yourself with the word NO.

NO should be the biggest word in your life.

Check yourself, before you allow others to fleece you down to your birthday apparel.

 

[William Johnson]

Never trust the other party to protect your interests.

If you do your due diligence BEFORE signing the contract and forking over your loot, you are protecting your interests.

If you have doubts, don't do the deal.

You may not get what you think you want, but you're protecting yourself.

Never believe others are more worried about your assets than you are.

Correcting yourself after you've signed on the dotted line and forked over your moola leaves you vulnerable to the whims of others.

Familiarize yourself with the word NO.

NO should be the biggest word in your life.

Check yourself, before you allow others to fleece you down to your birthday apparel.

Fair enough - but to what extent? I am talking about where liability lies. You don't know what you don't know and at some point, assuming all bad things apply can be quite costly and unreasonable. Case in point, how was I to know that a huge pipe and high voltage cable ran through the property unless I hired someone to inspect the whole property for everything from a fault line to ancient burial ground?
It sounds like worst-case, I can dig up his pipe and cable and pull it out as it technically doesn't exist. If he admits it exists, then an easement must be created if it were to stay. Just like shotty construction, if I buy a property and discover an addition was not permitted, I have the right to tear it down, repair it to code, etc. But it's mine - I bought it. So for all intents and purposes, this pipe and cable are mine - at least where it crosses into and leaves my property - correct?

 

[William Johnson]

What do you want to do about this?

I don't even know what my options are. In all honesty, I would like to know how the pipe and power wire affect my property value, had they been disclosed and not concealed. If an easement such as this would not necessarily sway my property value one way or another, then I can at worst, have the farmer move the stuff. If it is a HUGE deal and affects my insurance, future sale of the property, etc. I can at least weigh cost vs. liability options then.

 

[adjusterjack]

f I buy a property and discover an addition was not permitted, I have the right to tear it down, repair it to code, etc. But it's mine - I bought it. So for all intents and purposes, this pipe and cable are mine - at least where it crosses into and leaves my property - correct?

No, not a bit. You're comparing apples to elephants. The unpermitted structure was visible to you and it was your duty to determine that it was permitted or not, if that was important to you.

Underground lines are a completely different matter and I doubt that "it's mine, I can tear it out" will be an adequate defense to a lawsuit if doing so damages somebody else's property.

I believe he had an obligation to disclose the water/power line at the time the property lines were being surveyed or at least he would have had to disclose them to the Title company before closing. The only reason someone would deliberately not disclose this would be the effect on the market value of the property, right?

Maybe, maybe not. Have you looked into your state's disclosure statutes? Here they are:

Idaho Code Title 55, Chapter 25 (2022) - PROPERTY CONDITION DISCLOSURE ACT :: 2022 Idaho Code and Statutes :: US Codes and Statutes :: US Law :: Justia

Did you get a disclosure statement? If not, why not?

If you got one, you will have to determine if there was any non-compliance with the requirements for the disclosure statement.

The form in 55-2508 looks rather minimal.

I can't say one way or the other whether failing to disclose the presence of underground water and power leading to another property is actionable. Especially since you discovered the existence by calling the "dig line" which was something you could have done before buying.

I suggest you consult a real estate attorney and review your options.

 

[army judge]

Case in point, how was I to know that a huge pipe and high voltage cable ran through the property unless I hired someone to inspect the whole property for everything from a fault line to ancient burial ground?

You've summarized the issue clearly.

You're no dummy.

You know how to properly protect yourself.

Sure, it may cost you more moola, but you're worth it, mate.

Trust yourself, be wary of all others!

To paraphrase the famous, Smokey the Bear, "Only YOU can adequately protect yourself".

 

[OldSurveyor]

"If an easement such as this..."

Well, it's not an easement, at least not yet. We see no evidence of a written easement here, nor any intent to perfect one by any theory. I think the OP has the legal advantage in such a situation with several possible courses of action to protect his interests.

As suggested, a local attorney will be able to recommend the best course in the situation.

 

[welkin]

If he admits it exists, then an easement must be created if it were to stay.

Just because you don't have any written express description of an easement doesn't mean that one was not created by the use when the land was under unified ownership and before it was subdivided and sold to you.

Such an easement would be perfected by a court ruling or by agreement of both the servient and dominant estates. But under no circumstances (that I am aware of) would the farmer be made to remove the utility.

Speak to an attorney. But unless you are seeking some kind of monetary compensation, you are stuck with the pipe and cable.

 

[OldSurveyor]

The concept that the seller perfected some sort of easement to himself on his property prior to it's severance and sale to the OP fails due to the rule of merger.

I am still wondering what theory the farmer is going to use to get an easement from a court, if the OP does not agree to grant one.

 

[welkin]

I agree that merger would preclude the farmer granting himself an easement on his own land but he could have reserved one on the transfer of the land. Mistakes do happen when drafting new deeds and easements or reservations are left out.

I didn't say that the seller perfected an easement before severance. What I said was that the farmer would perfect the easement by a court order or by agreement should the buyer perhaps try to quiet title now. I should have used the word could instead of would.

However, there is so much information missing that would be needed to make an educated assessment of what might happen in a quiet title and counterclaim scenario.

We have no history of ownership of the lands both the farm and the house. We don't have dates about when the farmer bought the land or when the irrigation was put in. All OP told us was it was before he bought it. We don't know if and when the farmer obtained water rights and what agreements may have been entered into and with whom. And we don't know if there is an alternative route for the utility.

In light of 3 recent Idaho supreme court cases, OP may already be barred or running out of time to file suit.

Brown v. Greenheart
Sommer v. Misty Valley
Easterling v. HAL Pacific