Becoming a Ditch Witch

[Shadowbunny]

What is the name of your state (only U.S. law)? AZ

My husband and I own a house that borders a local utility's Canal. This is within City limits. Between the Canal and our property line is a drainage ditch that has badly deteriorated (and taken our front yard with it). We bought the house last year, but from all appearances the ditch issue has been going on for several years.

We've been round and round with various agencies trying to find out who is responsible for the ditch. SRP (the utility company) said it wasn't theirs, that it belonged to Roosevelt Water District (an irrigation cooperative) or the City of Mesa. RWD pointed to the City, the City pointed back to SRP. Given that SRP owns the canal, it seems logical that the overflow ditch next to it is also theirs.

We've gotten all the property records and title insurance docs -- there are no recorded easements, and all the parcel lines magically go around this ditch that runs 1/2 mile in length. We don't want to go do the considerable expense of repairing the property only to have SRP (or some other entity) come to us alter and demand we put it back.

This leaves the question: how do we lay claim to our section of this ditch so we can take erosion control measures?

 

[justalayman]

you need to research to find the owner of the property the ditch is on. Your register of deeds is the likely place for that. The tax office would also likely have information leading to the owner as well.

Given that SRP owns the canal, it seems logical that the overflow ditch next to it is also theirs.

It sounds like you will have to actually research who is the actual owner. You said they denied ownership while another said they were owners. Not dependable.

and all the parcel lines magically go around this ditch that runs 1/2 mile in length.

then what you are describing is; there is a parcel (the ditch area) that many parcels abut. All you have to do is determine ownership of that parcel.

We don't want to go do the considerable expense of repairing the property only to have SRP (or some other entity) come to us alter and demand we put it back.

You have no right to alter another's property.


so, it is simple: find out who owns the ditch. make a demand they repair the ditch so as to stop the damage the disrepair is causing to your property. Along with that, I would seek compensation for the damages to your property as well.

how do we lay claim to our section of this ditch so we can take erosion control measures?

You don't. You find the owner and hold them accountable.

 

[Shadowbunny]

you need to research to find the owner of the property the ditch is on. Your register of deeds is the likely place for that. The tax office would also likely have information leading to the owner as well.


It sounds like you will have to actually research who is the actual owner. You said they denied ownership while another said they were owners. Not dependable.


then what you are describing is; there is a parcel (the ditch area) that many parcels abut. All you have to do is determine ownership of that parcel.

You have no right to alter another's property.


so, it is simple: find out who owns the ditch. make a demand they repair the ditch so as to stop the damage the disrepair is causing to your property. Along with that, I would seek compensation for the damages to your property as well.


You don't. You find the owner and hold them accountable.

That's where we run into the roadblock: the ditch in question has no parcel number. We've pulled property maps/records from every government agency that we can, and the ditch appears to be a no-mans land. The city zoning department, county recorder, and county assessor maps all show the same thing: no owner is recorded.

 

[LdiJ]

That's where we run into the roadblock: the ditch in question has no parcel number. We've pulled property maps/records from every government agency that we can, and the ditch appears to be a no-mans land. The city zoning department, county recorder, and county assessor maps all show the same thing: no owner is recorded.

Well, then if you chose to make the repairs at your own expense, without asking for compensation, then that would be your defense should any entity attempt to sue you for doing so.

 

[justalayman]

That's where we run into the roadblock: the ditch in question has no parcel number. We've pulled property maps/records from every government agency that we can, and the ditch appears to be a no-mans land. The city zoning department, county recorder, and county assessor maps all show the same thing: no owner is recorded.

all property has an owner. When the country and subsequent states were created, the land contained within was surveyed and recorded. From that point forward, the transfers to subsequent owners has been recorded. If nothing else, the state owns the land but I suspect it is not the case. There is a means to determine who owns it. You have described a very superficial investigation into attempting to determine the owner. Obviously it will require a much more in depth investigation should you actually wish to discover the owner. So, I see a couple options:


continue to research the property to determine the owner. You may have to engage a title company to do a title search for you to research the history of the parcel. That is one of the major activities a title company does and they are quite good at it. Once the owner is determined, you go forward with seeking they (the owner) maintain the parcel and possibly compensate you for the damage to yours.

or;

you just do what you need to do and deal with any issues that come from that. I would not expect compensation for any work you did although a court may award it should it get to that point. The latter has some serious financial risks involved. If you cause damage to another's land by your actions, you will be liable for the damages. If you do something to the land in question that is illegal, you are liable. Any work you do in itself could be considered damaging and you could be required to "undo" whatever you did. If the work considered requires a permit, you will not be able to obtain one since you do not own the parcel. Issues involving waterways and drain ways can be a very touchy issue when it comes to permits and what is allowed.

 

[HomeGuru]

More research needs to be done on this "no man's land"

 

[LdiJ]

Is it possible that this ditch is an easement rather than owned by another party? It wouldn't surprise me if all parties who thought they just abutted up to it actually owned part of it.

 

[justalayman]

Is it possible that this ditch is an easement rather than owned by another party? It wouldn't surprise me if all parties who thought they just abutted up to it actually owned part of it.

Possible but given the OP's statement:

We've pulled property maps/records from every government agency that we can, and the ditch appears to be a no-mans land. The city zoning department, county recorder, and county assessor maps all show the same thing: no owner is recorded.

The do not stop the diagram of the servient tenement where it would abut the easement/ROW because it does not abut it. The easement/ROW overlays the servient tenement. OP clearly states the diagram of their property and other involved properties stops as it reaches the no man's land parcel.

 

[Shadowbunny]

continue to research the property to determine the owner. You may have to engage a title company to do a title search for you to research the history of the parcel. That is one of the major activities a title company does and they are quite good at it. Once the owner is determined, you go forward with seeking they (the owner) maintain the parcel and possibly compensate you for the damage to yours.

or;

you just do what you need to do and deal with any issues that come from that. I would not expect compensation for any work you did although a court may award it should it get to that point. The latter has some serious financial risks involved. If you cause damage to another's land by your actions, you will be liable for the damages. If you do something to the land in question that is illegal, you are liable. Any work you do in itself could be considered damaging and you could be required to "undo" whatever you did. If the work considered requires a permit, you will not be able to obtain one since you do not own the parcel. Issues involving waterways and drain ways can be a very touchy issue when it comes to permits and what is allowed.

We have the title search that was done when we bought the property. There are some utility easements on our property that were properly recorded and we have the plat maps that show where those easements are. Basically, all the documents regarding our property address everything BUT the ditch.

I've contacted the utility's ombudsman to see if they can look into the issue again. Crossing our fingers that perhaps a more diligent search on their part will provide some answers.

At this point, we're not as concerned about any reimbursements to repairs - we're willing to suck up the 5k to fix it. But we don't want to do anything until ownership is established.

I really appreciate everyone's input -- and look forward to any other ideas.

 

[LdiJ]

We have the title search that was done when we bought the property. There are some utility easements on our property that were properly recorded and we have the plat maps that show where those easements are. Basically, all the documents regarding our property address everything BUT the ditch.

I've contacted the utility's ombudsman to see if they can look into the issue again. Crossing our fingers that perhaps a more diligent search on their part will provide some answers.

At this point, we're not as concerned about any reimbursements to repairs - we're willing to suck up the 5k to fix it. But we don't want to do anything until ownership is established.

I really appreciate everyone's input -- and look forward to any other ideas.

Have you had a survey done? Its possible that if erosion is your problem, that part of the ditch is technically your property...that your property line bisects part of the ditch now. If so, no one could fault you for any repairs that stayed on your side of the property line.

Example: The ditch started out 8 ft wide and your property abuted the ditch. Now the ditch is 12 ft wide, so clearly part of the ditch is your property.

 

[Shadowbunny]

I'm a bit embarrassed to admit we hadn't thought of a survey. That might end up being our only resort. Thanks, LdiJ; good suggestion.

 

[justalayman]

Shadowbunny;3160571]We have the title search that was done when we bought the property.

I was suggesting a title search on the property in question.

 

[HomeGuru]

I was suggesting a title search on the property in question.

**A: yes that would reveal the true owner of the property.

 

[Shadowbunny]

I was suggesting a title search on the property in question.

I've had title searches done with addresses and parcel numbers; could they do one with what is basically a spot on a map? (And, yup, this is an honest question. I really don't know how to tell them what I want without any identifying info.)

 

[justalayman]

Yes, they can. Unless the parcel was raised from the depths of Hell after the state was surveyed or it really was overlooked by evert surveyor engaged to survey that parcel, whether on its own or as part of some other parcel, it ca be traced to a point there is an identifiable owner. Once that point is reached, that specific parcel can be tracked to determined the chain of title ultimately reaching the current owner.