I need some help from environment experts on this board!

[CTyankee]

We are half owners in vacation property in Wisconsin. The other owners are husband's family members, inherited it from the parents. For many years there was a shared well with the parents and their friends who owned the other house. The well served the needs of both houses with shared the responsibilities for maintenance and upkeep. As they died off the houses became vacation homes. Now my husband's family members, who are contentious and meanspirited, have given an ultimatum to the other owners that they "dig their own well." We refused to sign off on that, but they have pressed their claim ("we own the piece of land the well is on and we will shut off your water supply. You have 12 months to dig another one." We like the other owners and feel they have given due diligence to maintaining and improving the well (in addition to providing stewardship of the property since they live not too far away). It is not a matter of volume of water being used since neither vacation home is lived in year round.

My question: is there some environmental issue that we could raise on behalf of continuing the shared well system which has served everybody's interest in the past? (It doesn't help that our family adversaries are both republicans and we and the other owners are pretty strong, liberal Dems). This isn't a plea for legal help (which the other owners are getting), but a question of whether two wells, where one well is quite sufficent, and fairly close together, would have some sort of negative environmental impact.

Perhaps someone can give me a link to some reading on this subject. I can't believe this is an issue that hasn't been addressed before...

[TreasonousBastard]

1. This isn't an environmental issue so much as a legal one...

was there ever a formal agreement, similar to an easement, about everyone owning the well in common? Is there anything in either deed?

I'd ask a local lawyer if there is anything in Wisconsin law about this sort of thing, and probably plan on ending up digging another well.

[CTyankee]

7. I don't think there was a formal agreement because the parties just agreed to do it that way.

To me, it makes a great deal of sense to have this arrangement since it provides those of us who do not live near the area, with someone whose business it is to keep the well properly maintained. A kind of security. But I guess that is too "cooperative" and not selfish enough for our adversaries here!

[Drahthaardogs]

2. Generally speaking,

groundwaters are under the primacy of the state. I assume the well is permitted. Well permits are typically tied to the property and transferred with the property ownership. If it is, the person's whose name is on the permit is the holder and can do with it as he pleases. In fact, it is likely illegal for that person to supply multiple residences water from that single because that now makes the owner a "distributor" and opens them up legally to a whole host of regulations. If the well is not permitted, you are all essentially stealing water and have other issues.


As far as environmental laws regarding proximity to wells -- there are none that I have ever heard of (I have been doing environmental remediation for about twenty years). Typically, your well permit will have the gallons that you are allotted to use through the year. As a vacation home, I doubt you even come close to reaching your quota.

Of course the negative thing that could happen with two wells would be if the drawdown on the aquifer were sufficient to cause the water level in both wells to drop, which would mean re-installing the pump for both houses. Wisconsin is pretty wet though, so I do not imagine you need much of a well with a large radiance of influence.

I guess my final thought, if you own 1/2 of that well (since you own 1/2 of the property), stand firm and tell them that you will not support it and that they can use your 1/2 of the water that is legally yours.

[CTyankee]

3. thank you for your expertise. I cannot imagine that the well does not have a permit.

One of the contentious owners we are opposing is an attorney with lots of real estate legal experience. He would probably have asserted this a while back if he knew that the well did not have a permit and that would have changed everything, IMO. There would then be no question that another well must be dug.

As you can imagine this is getting ugly. We feel this is vicious and petty and simply a way to cause problems for people unnecessarily for narrow and selfish political reasons...

[MineralMan]

4. Here's a brochure (pdf) from

the Wisconsin DNR about wells. The page where it came from has lots of information you might be able to use.

http://dnr.wi.gov/org/water/dwg/pubs/YouAndYourWell.pdf

Source site:

http://dnr.wi.gov/org/water/dwg/wells.htm

[CTyankee]

5. thanks for the reading material!

I feel this whole thing is a vendetta by two nasty people who are now old, nasty people and that makes it worse. They don't have any friends in the area, they hate everybody around there and are full of spite. We are losing sleep over the unfairness of it. That they could get away with it just because they "can" is upsetting.

[MineralMan]

8. Do you use this property yourself?

You said you're half owners, but didn't say whether you ever use the property. If you don't, and don't plan to, maybe it's time to try to unload your share of it onto the other half owners. Family ownership of property is a real bugbear when it comes to many legal issues. Ownership comes with a bunch of liabilities, as well, so if you don't use the property or occupy it, it could become a real problem at some point for you.

For example, if the other party occupies the place but doesn't carry proper homeowner's liability insurance, you could be held partly responsible for any claim against the property. Lots of possible issues can arise from absentee part ownership.

[CTyankee]

12. We use it a lot less, just 3 weeks out of the year in the summer, than the Wisconsin family members.

However, health issues are getting in the way of our visits as they are with the other half owners one of whom has had serious medical issues of late. You would think they wouldn't be so eager to pick a fight right at this time in their lives! But their grown kids and grandkids use it a lot. We live out of state but this does not mean we don't want family members using the property. Those kids and grandkids are really nice.

It is a problem for us because, as you point out, there are liabilities to this "asset." Even tho there is no mortgage or rent to pay, there are tax bills, insurance and maintenance and the kids and grandkids can't afford to pitch in. We are not making a fuss about it, tho.

I know that as we age visiting this house becomes more and more problematic. I'm in pretty good shape but my husband has significant mobility issues due to spinal surgeries...and his sister has a myriad of health issues, including an alarming obesity problem.

You make some very good -- and true -- points, MineralMan! Thanks.

[csziggy]

32. I agree with MineralMan - it may be time to bail out

If the shared ownership is going to cause you hassle and you cannot use the property much now and will be able to use it less in the future, make the mean spirited people buy you out.

My husband's family had a similar situation - a cabin on a lake in Minnesota that his grandparents built. Two of his mother's siblings live in Minneapolis, so it was a convenient vacation and weekend place for their families, but the other siblings live in Hawaii, Florida and New Mexico. The long distance families got up to use the cabin maybe ever other year, if that.

Over the years as maintenance costs and taxes rose, arguments arose over who would pay. I suggested that family members pay according to how much they used the cabin - the families that were close enough to go up nearly every weekend over the summer should pay more than family who seldom visited. (I've never been so I figured I could be objective.)

My suggestion was rejected and there was a years long family squabble that destroyed relationships. Two of the siblings did not speak for years, one refused to discuss the situation and signed away all interest in the cabin forever She may have been bought out, I do not know the details. Cousins who had been close as children cut off contact because of the arguments.

The situation has been resolved, but I have not been told what the resolution is. I don't care - I have no interest in visiting the place and have never met some of the parties involved.


You may be much better off to simply inform the other people involved that you will give them first option to buy your share. If there is any interest in keeping family peace, just tell them that it's no longer convenient for you and your husband to use it. If not, tell them their mean spirited attitude precipitated this decision. I would get at least a comparable market value on the property and ask for full market value recompense.

[WhoIsNumberNone]

42. I don't know an awful lot about legal stuff

One thing I do know -from a business class I once took- is about joint ownership. If one party wants to sell, the other party has two choices: Buy him out, or sell and collect his half. That's it. If you decide to sell, the law entitles you to do so. If your co-owner doesn't like it but can't cover your half- sad day for him.

My family had to part with a piece of inherited property we didn't particularly want to give up because one cousin wanted to sell (There were several joint owners) and the rest couldn't or wouldn't buy her out.

This could be a bargaining chip for you. If you determine that your relatives are unable to buy you out, threaten to sell the property. Granted, if you're forced to go through with it things may be no better for the other property owners, but the threat of it may force your relatives to be a little more civil.

[CTyankee]

43. actually, about 3 years ago they wanted us to sign over our portion of ownership for the

use of the property for 3 weeks each year free of making any contribution to the property. We had an accountant look at the deal and hes strongly advised against it. They could threaten us if we found continuing contributions impossible in the future and in that case we would be forced to insist on selling it. However, the market is very bad in this particular area...I don't know if we would be able to sell it.

[WhoIsNumberNone]

45. I'm no accountant and that sounds like a sucker's deal to me.

They don't have much respect for your business sense if they thought you'd actually take that deal. Then if they decided to sell three years down the road, you'd get nothing.

Yeah- it's not a good time to sell right now. The only people looking to buy are looking for bargains.

[CTyankee]

46. I don't think their heirs are aware of what they are doing. I have been reluctant to bring them in b

it may be necessary, since we have a couple of irrational people driving us all over a cliff. They could stand to lose a valued vacation home that has meant a lot to them and their children if they don't try to talk some sense into them. And I am wondering now about how long their physical health will last...

[HereSince1628]

6. IMHO unless you know there is a reason a well couldn't be put on the 'other property'

I'd punch a new well if it was feasible. It would clear up issues at the time of the next sale, and it would eliminate a potential source of conflicts with the neighbors. If my neighbor (you) wanted to help pay for that, I'd welcome the contribution.

If this is about old lake cottage properties barely bigger than the cottages themselves and within feet of the water. I can imagine it being very hard to site a well on the property at a distance now considered appropriate from the septic.

[CTyankee]

9. No, our property is all set. The other property owners would have to punch another well.

The issue of "what if we sell" did come up. However, all of the inheritors one generation down want to keep the property. They love their visits there. I'd very much like to hear their views as they are very progressive people, in their mid thirties, and not so vindictive and spiteful and very environmentally aware.

This is very much a "made up" issue from spiteful, mean people, nothing more. They don't like the others and want to give them as much grief as they can. I find that unfair and it makes me really angry...

[etherealtruth]

10. As others have stated earlier your issues are legal and not environmental

"This isn't a plea for legal help (which the other owners are getting), but a question of whether two wells, where one well is quite sufficent, and fairly close together, would have some sort of negative environmental impact. "

The withdrawal of water from the aquifer (groundwater) would be essentially the same (in this instance) ... regardless of the number of wells. The water withdrawn will service three residences and the amount will be essentially the same and isn't going to be measurably different if drawn from one well or six wells.

[CTyankee]

14. I realize that the volume of water withdrawn would be the same if there were two wells. In fact,

that is kind of my point. If one IS sufficient, does the digging and operation of another, unnecessary, well in any way degrade the environment, sort of an "overkill" argument? I confess to ignorance in this area, which is why I posted this. Maybe there is no environmental argument...

[etherealtruth]

18. I am hesitant to give a concrete answer ...

... because so many issues may come in to play (issues which may affect the subsurface ..... from historical underground storage tanks, the migration of contaminants from off site sources ...). I don't want to venture a real opinion.

What I can do is use our family vacation home situated on a lake in northern Michigan as an example.

The house is serviced by a domestic water well. The historical use of the property has been residential for ~50 years. Prior to that the property was comprised of unimproved wooded land. The closest identified contamination source is from an historical underground storage tank located approximately 12,000 feet away. If (for some reason) we decided that the upper floors of the house would be better served by its own water well and the grounds would be watered by a third water well ... the net discharge from the groundwater would be the same (we would use the same amount of water just withdraw it from three points instead of one), but water would be drawn by three different water wells). There would be no measurable environmental impact from the presence of the three wells. Noting that there is no subsurface contamination, no confining clay layers ...

The municipal government that would oversee (issue a permit) for well installation at your property could give you answers more specific to your situation.

There are many scenarios in which groundwater could be impacted by the advancement of wells .... but , subsurface contamination (among other things) would be involved

[CTyankee]

19. thanks. that's very helpful information.

The only thing I could wonder about is whether the permit for another well could be that easily obtained.

[etherealtruth]

21. I am not diminishing your situation

... it sounds like it really sucks. As a human being I am truly sorry. Installing a well is a costly proposition. There is just a really good potential that following an environmental impact argument against a new well will fall flat. (actually, as a property owner this is GOOD for you ... you do not want issues that would impact this situation associated with your property)

Without knowing anything about the specific unit of government ... assuming that "everyone" depends on wells for potable water ... it is probably "easy" to obtain a well permit. I would contact a licensed well contractor ...they can give you an accurate estimate of the cost of installing the well, as well as the permits and inspections. They can also be a good resource related to issues associated with wells in a specific area.

[CTyankee]

22. we don't have to install a new well. The well is on our property, we just don't agree with our

co-owners in what they are trying to do to the neighbors who have now inherited their aunt's property. So our situation is not affected in that regard. the fight is intra-family (ours).

We want to continue the agreement to share the one well because we like the other owners, we get along well with them and, if nothing more, they are stewards of our property since we share a common concern and they live nearby and we don't. We have had an equitable relationship established by the original owners. both parties have a vested interest in keeping the property maintained. There is no advantage to going around pissing off your neighbors, in our opinion.

[etherealtruth]

23. Oh I agree there is no sane reason for going around p*ssing anybody off

[csziggy]

33. Oh - that is another point - the neighbors have been providing a valuable service

In return for the water from the well. Do they drain the pipes in the cabin for the winter? Do they make sure that the well will not freeze over the winter?

Obviously having a friendly neighbor next door to a mostly empty property is a valuable thing - paying for a security service would be expensive and the company would not monitor the property as closely as the neighbors do.

Perhaps a quiet word with the neighbors would get them to use this as a negotiating point if your contentious relatives try to go through with this?

[CTyankee]

35. oh, we haven't been quiet. I have been in constant communication with them. Stewardship of the

property is a BIG issue in this, at least to our side. We are cooperating with the neighbors on this and plan to make our objection pretty loudly if they proceed with this process. The neighbors also oversee snow removal and protecting our property from any damages due to snow removal. Which is why this whole thing is so ridiculous and we are so out of patience...really...we are dealing with people who are irrational...and unfortunately, this may become a court case...

[csziggy]

40. Instead of the advice I gave in the other sub-thread

If you decide to sell out, is there any contractual obligation to sell to the other family members? If not, consider selling your share to the neighbors. Or sell them a large enough share that their share and the reasonable relatives have more than a 50% share.

Frankly, I'd bail out, but if I were pissed enough I'd do it in a way to really annoy my irrational relatives. The real downside is that would leave the neighbors (who sound like really nice people) still having to deal with them.

I would recommend to the neighbors that they stop all of the things they have been doing for free. To cover their asses, they should send a letter detailing what they have been doing FOR FREE and recommending that your family as a whole make other arrangements for the security of your property. After all, with the legal hassles ahead, the neighbors shouldn't be overseeing anything to do with the property.

That may put some sense into your irrational relatives' heads when they see how much they've been getting for a little bit of water!

[CTyankee]

51. I think we do have to offer it to the other owners, which I would do anyway...

if only because they would be the most interested in keeping it. But I doubt if they have the money to do that.

The neighbors probably couldn't buy in anyway, given their circumstances.

And they would not stop overseeing things. We share some common areas and they are very close by so it is really in their best interests to continue doing the caretaking they are doing. Also, they like us and know that we are on their side in this and are appalled at what is going on.

[csziggy]

52. If I were in the neighbors' shoes, I wouldn't stop either

But I might write that letter (or better yet, have my attorney write it) as reminder of how much I do in return for that water. Even if the neighbors would never seriously consider not watching out for their neighbors, it would be to their advantage (in my non-attorney opinion) to bring the idea up.

Since the unpleasant relative is acting as attorney in this situation, he would be the one to receive this letter. Getting official notice that those free services might stop could be the slap of reality for your unpleasant relatives. He might assume that the neighbors' interest in continuing those services would out weigh any ill feeling that his demands might cause, though if the neighbors were as annoying as he is they certainly would not do so.

[Botany]

11. As long as the well can serve both homes w/out a problem and ....

.... that the ground water which the well draws down on is recharged* @ a high enough level to
keep a good supply and that there are no problems w/ the quality of the water from the well
then you should keep up a good neighbor policy. This is especially true if the neighbors are
helping out w/ the upkeep of the well and the properties because that kind of help is priceless.

The value of having a good relationship w/ the neighbors well accedes the value of the
water from the well. BTW I love Wisconsin and most people there no matter what their
background are go out of their way to be nice .... tell you husbands family they are not acting like
good badgers.

* being Wisconsin how close is the well to a lake or river? Because if you have a
body of water close to the well then the you should not have any water supply problems.
A hydrogeologist or somebody from the State or a person from the soil and water conservation
district could answer any water supply questions ..... or you could just check w/ other neighbors
and see if they have any well water supply problems.

[CTyankee]

13. thank you for the badger point of view, which my badger husband is in complete accord with.

He and I (not a native badger) feel exactly the way you describe it. It is absolutely incredible that these other family members are being so meanspirited. As you point out (and I continually do) a good neighbor policy is wise. We have a common interest in preserving the resource. We get along, these two family members never have. They are the outliers in this equation.

We are near a lake (but not right on it). It is my understanding that the lake is owned by the state. It is in a pretty pristine state. I don't visit it in the summer because of the horrendous amount of mosquitoes. I don't know if the lake really has much to do with the water supply.

[Botany]

15. The ground water which supplies the well in question is recharged by the lake (most likely) ....

.... so water supply should not be a problem.

I prescribe a screened in porch and nice shared picnic w/ the neighbors this summer.



just a couple of drops is all you will need.

BTW where in Wisconsin is the cabin?

[CTyankee]

17. I will PM you answering your question...

[bhikkhu]

16. I don't know the environmental issues...

but in similar circumstances I'd get my own well dug and be very happy to not perpetuate the conflict.

I would guess that if you find a way to force them to share with you they will find a way to suck all the "vacation" out of you vacation property. Better to lose the battle and gain a ceasefire on the war, so to speak, unless you are enjoying the conflict.

[CTyankee]

20. we actually don't lose anything because we would not have to dig the well, our neighbors would.

Yes, we could be on the losing side of an argument, that's true enough, but that doesn't bother me. What bothers me is the basic unfairness of this effort. And I don't think there will be a ceasefire, either. The other family member owners of our property are "serial troublemakers."

However, I take your point about one's own peace of mind. We can firmly state our objections and place ourselves on higher ground, so to speak...

[Yo_Mama]

41. You do have something to lose

If the other people win in court, some sort of judgment will be rendered. If the judgment is for monetary compensation, then it is individually collectable against any of the opposing parties. That includes your family, because you own a share of the property.

So you have a pretty big stake in not letting this get to that point. Because you have a share of the property on which the disputed well is located, you could potentially end up stuck with the damages if the troublesome parties are unwilling to pay. For example, one way for the other people to collect is to put a lien against the shared property.

[CTyankee]

50. I don't understand the "damages" part. If the neighbor wins, it will be to revert to the old

policy of a shared well, i.e., they won't have to dig a new well. Where does monetary compensation come into play? What would the compensation be for?

[Yo_Mama]

53. Their legal costs and possibly cost of new well

A bad faith abrogation of contract usually gets the offended party all costs. A judge might well order payment of all their legal costs plus either the cost of a new well or continued access. Depending on the degree of irrationality the judge perceives, the judge might not believe that this issue will be settled by the initial order, and might give the option to demand the cost of a new well to the other party. The original unwritten contract includes use of the well and the right of access to maintain the water line running from the well to the other property, so if really bad blood exists one might suspect that the first visit to court won't be their last.

Regardless of the decision, enforcement is likely to come in the form of a lien against the property in which your family holds an interest. Since I cannot fathom why this is happening at all, I'm suspecting that your family is then not going to get treated fairly. The order will state that the neighbors have either a legal right to the full monetary damages caused by the loss of access to the well (including their costs to enforce the contract) or the right to their costs already incurred to defend access to the well plus continued access to the well - unless there is some offense on the neighbors' part that would split damages.

I realize that you are simply caught in a situation you did not create and would prevent in any way you could, but legallyyou are a party to that contract due to having an interest in that shared property. If the family of the legal eagle will not pay up you are going to wind up with a lien on your property, because the property is shared. My guess is that the legal eagle is going to be very irate at the fact that you sided with the neighbors, and want to stick you with the bill.

In multi-party contracts like this, it is not that unusual for the peace-making party to get stuck in the middle and wind up bearing most of the costs. Your family has the least control over the situation of the other two families, and you probably will continue to have the least control over the situation.

In fact, one of the thoughts that crossed my head was that this unwinnable legal conflict was generated to get your family to sell out your interest in this shared property at a cheap rate in order to avoid the situation. If the legal eagle thinks he can subdivide the property and make a killing, he has to do two things - get you and your husband out, and remove the encumbrance of the neighbors, because he can't subdivide with that right of way running through the property. This behavior might be designed to accomplish both ends.

Given that you say he is into RE, that's a real possibility. He is either nuts or crazy like a fox.

[CTyankee]

54. But if we hang tough, he will lose as surely as we do, so in that case he has lost his bet.

So instead of having a situation where he had full control over his half of the property, he has less. I realize that it is less for us too, but this strategy only works IMO if we call don't his bluff. It seems that we may be pretty screwed any way you look at it, if your scenario is correct.

BUT our neighbors tell me they are not backing down, no matter what. And if we don't either, then "legal eagle" stands to lose. If he gets the drift that his may happen -- particularly if we let him know that (thanks to you) we are "on" to his scheme, he might also back out, rather than lose himself to an unfortunate legal strategy on his part. After all, he is going to have to pay for this as well, and since his family is the one who put in "sweat equity" in this property (the grown kids, in lieu of monetary payments to help with the taxes, etc). So it makes sense for us to keep a united front against him, as he sees the value of the property go down from what it was before he started his ill-considered action.

A question: could the judge just levy damages against only the "legal eagle" since he/she would know who was really causing the mischief here? Doesn't the law recognize the "bad faith" actors as opposed to the "good faith" actors?

[Yo_Mama]

55. I doubt the judge can separate the collection

See, that's the thing. The neighbors have already incurred costs, so there are already damages. If the legal eagle won't write the check, the neighbor's recourse is probably to get a lien on the property. There may be some aspect of WI contract law you could use, but only a Wisconsin lawyer could tell you that.

I feel very badly for you and your family, btw. You didn't even know you could end up with the bill, and here you are trying to do the right thing out of a sense of decency. Unfortunately your very creative attempt to find a way out through environmental law or regulations seems futile.

I'm just guessing at what's going on. Maybe senile dementia is the root cause. That doesn't make your situation any better. Either you are dealing with a person whose brain isn't working right, or you are dealing with someone with no sense of ethics at all. Neither situation can work out well for you. I cannot believe that an 84 year-old real estate lawyer of sound mind doesn't have a grasp of the legalities here.

Since you are driven both by basic ethics and the need to defend your own property rights, confronting your legal eagle now instead of later is probably the best course, but of course you have to talk it over within your own family first. This isn't going to go over well!

If you do decide to sell out, I think you should propose to sell on the basis that you will sell for a set fee plus a share of the proceeds derived from any real-estate related transaction relating to transfer of the property or property rights that occurs within seven years or has occurred in the previous two years. And get a lawyer to write it up. It looks to me like your comfort in the property is gone regardless.

On the face of it, there is no possible benefit whatsoever to the legal eagle's strategy, but if he is a real estate lawyer he has a lot of contacts and may have a deal lined up. And he may have faced financial reverses and therefore may now need the money. He may have an options contract already in hand.

[CTyankee]

56. Thank you for your time and thoughts on this. I really appreciate it!

Our vaunted legal eagle, who gained his half of the other half of the property in a prenup with my husband's sister, has 7 grown kids, many grandchildren and a few great grandchildren, a lot of whom are still in the area. So he wants to keep it as long as possible for them. But they may have changed the prenup since his name has mysteriously vanished from her correspondence over the last month or so. But of course he is still "masterminding" the legal work here...

Anyway, sorry to bog you down in this stuff...you've helped a lot and informed my thinking on this.

Thanks again!

[Cerridwen]

24. Who owns the water rights?

Do the water rights belong to one piece of property or the other? Does it even work that way in Wisconsin?

I'm from out west. Most of our water and mineral rights are owned by the federal government. When buying raw land, it's very unusual to be able to purchase the mineral or water rights. But, we're a 'newer' part of the US so maybe Wisconsin doesn't have that issue.

[CTyankee]

26. we two co-owners have the rights which come along with the property. Iknow it's confusing but

we don't want to upset the original agreement to share a common well, even tho it is on our property. We like the shared experience, we think it is healthy and if our heirs and the other heirs eventually want to get another type of deal they can do so. In our opinion, there is no problem with the status quo, shared responsibility. It has worked well in the past.

[Cerridwen]

28. Not confusing at all. I just wasn't sure from what

you had typed, if the water rights belong to your co-owned property or if they belonged to the other property whose owners your family members are now getting pissy with.

As I said, when buying land out here, you don't always get the rights to what is under the land as is more common the farther east you travel.

[etherealtruth]

27. Water is pretty plentiful in the Great Lakes States

http://virtualissues.com/tag/ground-water/

The Restatement of Torts Rule

Holds that a landowner who uses ground water for a beneficial purpose is not subject to liability for
interference if certain conditions are met. The water withdrawal cannot cause unreasonable harm to
a neighbor by lowering the water table or reducing artesian pressure, cannot exceed a reasonable
share of the total store of ground water and cannot create a direct and substantial effect on a water-
course or lake.

Three states adopted or indicate a preference for the Restatement of Torts doctrine: Michigan, Ohio
and Wisconsin.

[Cerridwen]

30. Thank you.

I know we're quite a bit different in our land laws and rights out here.

[Curmudgeoness]

25. Since the neighbors have legal counsel, I would

leave it up to the lawyers to hammer it out. It seems to me that there is a precedent set by having shared this well for so many years, and the fact that the neighbors have financial investment in maintaining this well, your relatives may have no leg to stand on. This could also get costly for you----or your relatives----or both, because there will more than likely be a court battle over this. Are they willing to pony up the money to defend this? Are you? Is there a way for you to make sure the legal costs fall on your relatives only? Think about it.

[CTyankee]

29. the neighbors are now bearing the cost of legal representation. We are simply agreeing with them.

I don't think we'll be relevant to any court battle, except if we send testimony that the agreement to share the cost has, in our opinion, worked very well for all parties until now when no issue presents itself to the contrary. Our relatives cannot force us to pay for something they and they alone are starting when we are going on the record opposing them. What could happen, of course, is a court could say that the neighbors have to dig the well, but we would owe them restitution for the current well. Where that would leave us, I don't know. I guess we are in an interesting spot.

You raise a really good point about the financial investment the neighbors have made in maintaining and improving the well. Our relatives want to simply say "Game over. Now that your aunt is dead, dig your own damn well because we are shutting off your water and the clock is ticking."

[quaker bill]

31. Unlikely

The bottom line is that the use of water is not changing. Two wells drawing the same total volume as the one but now separated by some distance probably would have less environmenal impact than one well doing all the work.

There is potentially a case for a "constructive easement" in a case like this, if the use was shared for a very long time. Given the local laws are favorable, one might win such an argument in court. However the cost of winning such an argument in court is very likely far greater than the price of drilling a well.

I would drill the well.

[CTyankee]

34. I think the neighbors are cognizant of the cost, and so are the perpetrators of this scheme...

our own damn family members. I regard this as harassment...they have a history of doing this.

However, thanks for your insight. I had never heard of "constructive easement" before. I am wondering if Wisconsin law has such a provision. The well was shared for a very long time, to no adverse outcomes for the parties involved. I am now worried about our liability, even tho we oppose the action, if a court says the neighbors must receive some payment for their contributions to the well maintenance and improvement....

however, this does get off message, which was environmental impact and I thank you for your insights into that. It helps us to know this in advance.

[quaker bill]

48. The bigger question

I sat with a couple on thursday. They engaged in and won the first round of a legal battle much like this. They spent well more than 100K doing so, and now have a judgement subject to appeal that will never be paid because the party that lost went bankrupt in the process of defending themselves. The only people who faired well out of this were the lawyers and the paid expert witnesses. I was an expert witness, but not paid because I work for government and it is just part of my job.

The folks who won were quite correct, and now have the personal satisfaction of having proved it in court. On the other hand, they are now broke, have a useless judgement that they will need to either drop or pay to defend on appeal, and have no money to fix the problem on their own.

Just fixing the problem on their own would probably have run them 50K. Now they have no money left, a defective piece of property and a judgement worth less than the piece of paper it is printed on. But they "won". In this case, "winning" probably means they turn the house over to the bank in lieu of foreclosure.

They are somewhat lucky though, in some really unfortunate cases I have seen, the "winner" is condemned to having to live next door to the "loser" for decades to come. This never ends well.

Digging a well will almost always be vastly cheaper than winning a lawsuit.

[Yo_Mama]

36. I think the other people have a legal claim

If they can show that they have contributed substantial funds to the upkeep and maintenance of the well and the pump, then it becomes obvious that they can't just suddenly be cut off from it without compensation. So if they go to court they will probably win an award.

Also, in many states there is a legal doctrine in which longstanding tradition creates a right-to-use. This is a very old tradition from English common law, and that is layered on top of contract law. A written contract need not exist for a contract right to be recognized in law.

I would suggest that you speak to your husband's family members and gently point out that they may be buying themselves a lawsuit with a bill. In every state an implicit contract is recognized, and the other owners probably will be able to show that they laid out monies and thus are entitled to remuneration.

Owning the land on which a shared resource exists does not trump everything else. It must be obvious that they were putting funds into the well because they were allowed to use it, and the existing connection proves that they were allowed to use it, and I think I could win this case for them. I'd pursue it in small claims court.

[CTyankee]

37. thaks yo mama. Husband's family includes a loudmouth lawyer who has a background in real estate.

This arrangement goes back to the early 70s. Probably about 40 years or so.

So he won't listen to us. He is also 84 years old, which may be part of the problem (???). His wife is near to the problem due to her really alarming health issues. This IS the problem.

You state the case quite succinctly in the last paragraph of your post. It is exactly the case.

From what I am hearing on this post, I think the environmental angle is probably not worth pursuing unless I can find any other expert testimony to the contrary.

I am hoping that WI has some really good law concerning communal use of resources with a long history....

[Yo_Mama]

38. I think you've got a senile lawyer on your hands.

That really sucks, because I think the other guys have a winning hand on this one, and that means that your family will probably end up paying the cost of this rather stupid and remarkably ill-spirited move. If the loudmouthed 84 year-old lawyer is backing this, then he's going to be twice as obdurate when it comes to losing and your family may end up paying for a new well for the neighbors. Take this up with your husband, and suggest that he discuss this with other family members.

The other people have already lawyered up, and if they get a judgment they can collect from anyone on the hook, which includes you and your husband.

To understand just how yucky this could get, read the following written by a WI lawyer:
http://ezinearticles.com/?Wisconsin-Contract-Law---What-Makes-a-Legally-Binding-Contract?&id=3373178

Under Wisconsin contract law, all contracts also come with an implied duty of "good faith and fair dealing" on the part of both parties to the contract. While this is admittedly a rather broad phrase, in essence it means that, once an agreement has been reached, both parties have an obligation to make reasonable efforts to fulfill their respective obligations, and to avoid taking actions that would hinder the performance of the contract.

Parties to contracts have the right to enforce them in courts of law. Generally, the remedies for breach of contract take one of two forms, either specific performance or monetary damages. Specific performance is an equitable remedy most often awarded in cases involving real estate transactions, and consists of the Court ordering the breaching party to fulfill its obligations, i.e. "specifically perform" the contract.

In most cases, the remedy for breach of contract is money damages, usually in the form of "consequential" damages. Consequential damages are those damages that flow naturally from one party's breach of a contract, and can include the cost to replace a product that was never delivered, the cost to repair a defective product, and any resulting lost profits. However, consequential damages must be "reasonably foreseeable" at the time the contract was created in order to be recoverable.

Especially note the good faith provisions, and the "offer, acceptance and consideration" bit. It seems blindingly obvious that a contract existed. It seems very obvious that this is a bad-faith attempt to abrogate the contract unless there is more to this story than you know. For example, if the well needed maintenance and the other parties refused to throw in, that might be a factor because your husband's family may argue that the other family breached first.

If you cannot get the 84 year old legal eagle to back down, then I suggest you get your own butts to court and testify in the other people's favor and inform the judge that he should order the remedy that the original arrangement be carried out. This would probably result in half of your husband's family not speaking to your family until the 84 year-old dies, but but at least you won't get a bill for a new well and new plumbing for the other parties. Judges are not generally stupid, and the judge might go with an order to perform or an order to pay for at least half the cost of the new well. Then if the legal eagle insists on cutting them off, you have an action against the legal eagle if the legal eagles stiffs you on that cost.

This isn't going to look good in court. Really, it is not. You and your husband are parties to this, and you cannot avoid the problem just because you aren't raising the difficulty. The judge might be so pissed off that he orders paying ALL the cost of the new well, because under the terms of the original contract, that was reasonably foreseeable. So you don't want a pissed-off judge, okay?

Sorry for your troubles! This seems likely to get worse before it gets better.

[CTyankee]

44. we anticipate doing that if need be (submitting letter that the original plan be left in place).

we are dealing with suspicious plot hatching people here. We have never had problems with the neighbors but they are claiming there has been one controversy after another. Truly crazy. It's even more complicated than this legally. But that was not my purpose in this OP. I was looking for a bolstering environmental argument but this is evidently not an issue.

You raise good points. I had wanted to avoid involving the heirs but now it looks like we will have to. They at least are good people and hopefully they will say "drop this thing."

[Curmudgeoness]

39. Yo_Mama said this better than I did,

but that is what I was attempting to say. I remember a case where there was a shared driveway/private road used by two houses. This road was on one property but used by both and had for many years---but it was the exact same situation you are talking about, there was a precedent for the shared use, but the heir of the property owner wanted to prevent the other party from continuing to use it. He blocked the drive and it went to court. It was a long and costly process in the courts, and in the end, not only did the shared drive stay shared, but the other party got a judgment for all their legal costs.

[Motown_Johnny]

47. .

I see you already have some excellent advice here so I will not bother trying to compete. My only input is the location of septic fields in the area and the possible inability of your neighbor to drill a safe well.


I honestly believe that if your neighbors have been using the well ever since the previous owners lived there, and that you as half owners of the well have no problem with it, then I think your in laws can be told to go take a flying leap. Unless there is some problem with the permit then your neighbor's use of the well should be grandfathered in. Good luck.

[CTyankee]

49. I think the notion of "implied contract" holds water. They have a tenuous argument now that they

had all the conflicts with the neighbors, so hey, we can't resolve anything with you, god knows we tried. Which is bs. We are half owners and we never had conflict with the neighbors. Or at least that one area of disagreement was not with them, but with the now deceased aunt, who had a faulty memory and misconstrued what she could and could not do. It was a narrow point and was resolved through discussion and early consensus once the facts were laid out. So if anything there was an example of working things out constructively in the past which is what we were trying to argue for once we got wind of this latest concoction. I think that unfortunately we are going to have to reconstruct that narrative if this whole thing goes over a legal cliff...