Trespass Issue Concerning A Well On Patented Land, Purchased 1/3 acre of land from BLM with trespassing well Options

[Gold Hill Miner]

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.

[Gene Kooper]

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:

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.