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Trespass Issue Concerning A Well On Patented Land, Purchased 1/3 acre of land from BLM with trespassing well
Gold Hill Miner
post May 2 2017, 11:01 PM
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I bought a third of an acre of land from BLM with a well in trespass. Does my patent include the water rights. Can I just seal the well or disconnect it? The neighbor has trespassed on this land for many years. Adverse possession laws do not apply to government land. I made the purchase in 2011. Grandfathering does not apply.
The people I bought my adjoining property from did purchase the water rights to my existing well because of trespass and claim jumping issues with this same person. I did change the ownership paperwork.
This person continually tries to take patented land by adverse possession.
Normally a disclosure is required for a well in property transfer. This all relates to my previous posts in location certificates & this person causing the BLM to remonument 60 patented mining claimed incorrectly.
I can't find anything related to trespass on the Colorado Water Resource site.

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Crusty
post May 3 2017, 04:58 AM
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You bought land from the blm?

If it is patented, it isn't "government land" it is yours.

Your neighbors bought water rights (from you?) But your asking if you own water rights?

Too many unanswered questions to give an informed response.




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johnnybravo300
post May 3 2017, 06:05 AM
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research.gif

Maybe ask the sheriff his opinion. He should be able to take care of it right then if there is a problem with a trespassing neighbor. He's the law on this so I'd ask him if I were you.


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Gold Hill Miner
post May 3 2017, 01:11 PM
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QUOTE (Crusty @ May 3 2017, 05:58 AM) *
You bought land from the blm?

If it is patented, it isn't "government land" it is yours.

Your neighbors bought water rights (from you?) But your asking if you own water rights?

Too many unanswered questions to give an informed response.

The land I bought from Blm was purchased to resolve a trespass issue. Unfortunately at the time, I did not know the neighbor was claim jumping and altering the Blms survey while in progress. I ended up repurchasing patented land I already owned.
My surveyor and others have helped prove my original western patented claim is monumented in an alternate location. I was never in trespass and I actually purchased one of the neighbors several trespass issues containing his we!l.
I purchased my existing building lot with a shaft and the water rights to my well, not just the well permit in the 80's. My shaft in now within the neighbors boundary lines. My question is whether or not the new patented lot comes with the water and mineral rights automatically. How do I acquire the water rights if they are not included, if I can have continued use of this well in trespass?
I am not sure I will be able to use the well, I may be required to seal it, since I have an operating well within 100' of this one.
I was also asking if I could turn it off or destroy it myself without the sheriff.
Unfortunately I uncovered a huge Blm mess caused by this guy. Blm recorded no evidence of 60 claim corner monuments and 202 intersection monuments, remonumented and platted all of them in alternate locations during a cadastral survey. These claims are so well marked. The miners up here in the 1800's clearly marked every protruding stone and tree across their claims. On oblique imagery on our county website i clearly see the patented claim lines, the ms #' & claim initials over the ridge lines. The location platt are incredibly accurate! This area burned in 2010. & all the trees are down now exposing all the Shafts and tunnels on this mountain. Someone forgot to move them along with the corner monuments!
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Clay Diggins
post May 3 2017, 02:56 PM
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Your patent will describe in detail any restrictions on ownership. You will generally find a reservation of rights for ditches and canals. It is unusual but not unheard of for wells or flowing water to be mentioned in a patent.

Water rights that were not restricted in your patent grant are ultimately decided by State law. Once you were granted the patent the legal status of your water rights became none of the BLM's business. They can not help you with rights they have already granted to you.
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Gene Kooper
post May 4 2017, 10:07 PM
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First, somewhat of a disclaimer. Before signing on to the forum I first inquired with Dan. It was not my desire to advertise my services as a land surveyor. Gold Hill Miner posted about their issues with mineral survey corners that may have been moved in an area west of Boulder. I posted some basic information in that thread for GHM. We got in contact beyond the forum and I assisted GHM with some basic research on patented mining claims pro bono. GHM already retained a surveyor so they didn't need two. I'll add some information to GHMs current issue, but won't say anything about the specific area or survey details.

GHM,

The patented mining claims that you own contain standard language for mineral lands patents regarding water rights. I looked at one of your patents and the last page states after the following, "subject, nevertheless, to the above-mentioned and to the following conditions and stipulations:
QUOTE
FIRST. That the premises hereby granted shall be held subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local laws, customs, and decisions of the courts. And there is reserved from the lands hereby granted a right of way thereon for ditches and canals constructed by the authority of the United States.

I did not find a copy of your 1/3 acre patent issued in 2011 on the GLO Records web site, so I do not know whether it contains similar language to your other patents.

Regarding the well on you new property, before it was drilled, the "owner" would have had to obtain a well permit from the Colorado State Engineer's office (unless it is ancient). A state licensed well driller would have had to do the job. It has been over thirty years since I did research on permitted water wells in Colorado. However, in the late 1980s the State Engineer began to restrict domestic water wells to strictly household use. The well owner could not use the water for livestock or to water plants or a yard. I won't go into the weeds regarding the restrictions, but you may wish to contact the State Engineer to find out if the well is permitted, what use is allowed and who the permittee is. It may be an illegal well, or a monitoring well. More likely it was drilled in the wrong spot (i.e. on BLM land).

Here is the web site for the Colorado Division of Natural Resources that will get you started. http://water.state.co.us/groundwater/BOE/Pages/default.aspx

Also, here are some rules that licensed water well contractors must abide by in case you suffer from insomnia. Colorado Water Well Contractor Rules

I cannot guarantee that your experience with a state agency will be any more "fun" than your experience with a certain Dept. of Interior agency.

As for your neighbor's penchant for trying to adversely possess land in the area, the laws changed in 2008. You may recall an adverse possession case between two neighbors west of Boulder back in the mid 2000s. A retired judge and his wife who were friends of the presiding judge obtained a judgment against the neighbor based on their walking across the neighbors back yard on their way to their garden. The wife was also an attorney and served as the campaign treasurer for Claire Levy in 2008 when she ran for reelection to House District 13 (your district). After being elected Ms. Levy was a co-sponsor to a bill that changed the adverse possession laws in Colorado. Before the law was passed in 2008 an adverse possession quiet title action only required the legal standard of a preponderance of the evidence. After the law passed the legal standard was raised to clear and convincing evidence. There are other changes to the unwritten property right of adverse possession. Some of the requirements make it nearly impossible to claim property by adverse possession for certain sets of circumstances.

I say all this because it may be prudent for you to retain an attorney so you are clear about your property rights, the legality of the well on your property, the consequences of the actions of your neighbor and whether there is a vested and accrued water right.

Best regards,
Gene

P.S. Sorry for not replying yet to your recent email. I've been swamped getting ready for the coming field season.
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Crusty
post May 5 2017, 06:16 AM
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Good info, thanks for putting it out there!


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