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H0634aa.......................................by RESOURCES AND CONSERVATION
IRRIGATION - DRAINAGE - Amends and adds to existing law to require
permission from owners of irrigation rights-of-way for encroachments of any
kind on the rights-of-way; and to clarify that protection from adverse
possession applies to easements as well as to rights-of-way of irrigation
and drainage districts.
02/10 House intro - 1st rdg - to printing
02/11 Rpt prt - to Res/Con
02/26 Rpt out - to Gen Ord
Rpt out amen - to engros
02/27 Rpt engros - 1st rdg - to 2nd rdg as amen
03/01 2nd rdg - to 3rd rdg as amen
03/04 3rd rdg as amen - PASSED - 61-0-9
AYES -- Andersen, Barraclough, Barrett, Bayer, Bedke, Bell, Block,
Boe, Bolz, Campbell, Cannon, Clark, Collins, Cuddy, Deal, Denney,
Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23),
Gagner, Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Kulczyk,
Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller,
Mitchell, Moyle, Naccarato, Pasley-Stuart, Raybould, Ridinger, Ring,
Ringo, Roberts, Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd,
Skippen, Smith(30), Smylie, Snodgrass, Stevenson, Trail(Bennett),
Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Bauer, Black, Bradford, Crow, Lake, Nielsen,
Shirley, Smith(24), Wills
Floor Sponsor - Campbell
Title apvd - to Senate
03/05 Senate intro - 1st rdg - to Res/Env
03/09 Rpt out - rec d/p - to 2nd rdg
03/10 2nd rdg - to 3rd rdg
03/18 3rd rdg - PASSED - 18-17-1
Tie Vote - President voted AYE
AYES -- Brandt, Burtenshaw, Cameron, Darrington, Gannon, Geddes,
Goedde, Hill, Little, Lodge, McKenzie, McWilliams, Noble, Noh,
Richardson, Sweet, Williams
NAYS -- Andreason, Bailey, Bunderson, Burkett, Calabretta, Compton,
Davis, Ingram, Kennedy, Keough, Malepeai, Marley, Schroeder,
Sorensen, Stegner, Stennett, Werk
Absent and excused -- Pearce
Floor Sponsors - Burtenshaw & Noh
Title apvd - to House
03/19 To enrol - Rpt enrol - Sp signed - Pres signed
03/22 To Governor
03/23 Governor signed
Session Law Chapter 179
Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 634
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO IRRIGATION AND DRAINAGE EASEMENTS AND RIGHTS-OF-WAY; AMENDING SEC-
3 TION 31-3805, IDAHO CODE, TO REQUIRE PRIOR APPROVAL FROM THE OWNERS OF
4 IRRIGATION OR DRAINAGE EASEMENTS OR RIGHTS-OF-WAY FOR ENCROACHMENTS BEFORE
5 A SUBDIVISION PLAT OR AMENDMENTS WILL BE ACCEPTED, APPROVED AND RECORDED
6 AND TO REQUIRE NOTIFICATION; AMENDING SECTION 42-1102, IDAHO CODE, TO
7 REQUIRE PERMISSION FROM OWNERS OF IRRIGATION RIGHTS-OF-WAY FOR ENCROACH-
8 MENTS OF ANY KIND ON THE RIGHTS-OF-WAY; AMENDING SECTION 42-1208, IDAHO
9 CODE, TO CLARIFY THAT PROTECTION FROM ADVERSE POSSESSION APPLIES TO EASE-
10 MENTS AS WELL AS TO RIGHTS-OF-WAY OF IRRIGATION AND DRAINAGE DISTRICTS;
11 AND AMENDING CHAPTER 12, TITLE 42, IDAHO CODE, BY THE ADDITION OF A NEW
12 SECTION 42-1209, IDAHO CODE, TO REQUIRE WRITTEN PERMISSION OF THE OWNER OF
13 AN IRRIGATION OR DRAINAGE EASEMENT OR RIGHT-OF-WAY BEFORE ENCROACHMENTS OF
14 ANY KIND ARE PERMITTED.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 31-3805, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 31-3805. DELIVERY OF WATER. (1) When either a subdivision within the
19 meaning of chapter 13, title 50, Idaho Code, or a subdivision subject to a
20 more restrictive county or city zoning ordinance is proposed within the state
21 of Idaho, and all or any part of said subdivision would be located within the
22 boundaries of an existing irrigation district or other canal company, ditch
23 association, drainage district, or like irrigation water delivery or drainage
24 entity, hereinafter called "irrigation entity" for the purposes of this chap-
25 ter, no subdivision plat or amendment to a subdivision plat or any other plat
26 or map recognized by the city or county for the division of land will be
27 accepted, approved, and recorded unless:
28 (a) The water rights appurtenant and the assessment obligation of the
29 lands in said subdivision which are within the irrigation entity have been
30 transferred from said lands or excluded from an irrigation entity by the
31 owner thereof; or by the person, firm or corporation filing the subdivi-
32 sion plat or amendment to a subdivision plat or any other plat or map rec-
33 ognized by the city or county for the division of land; or
34 (b) The owner or person, firm or corporation filing the subdivision plat
35 or amendment to a subdivision plat or any other plat or map recognized by
36 the city or county for the division of land has provided for underground
37 tile or other like satisfactory underground conduit for lots of one (1)
38 acre or less, or a suitable system for lots of more than one (1) acre
39 which will deliver water to those landowners within the subdivision who
40 are also within the irrigation entity, with the following appropriate
41 approvals:
42 (i) For proposed subdivisions within the incorporated limits of a
43 city, the irrigation system must be approved by the city zoning
2
1 authority or the city council, as provided by city ordinance, with
2 the advice of the irrigation entity charged with the delivery of
3 water to said lands.
4 (ii) For proposed subdivisions located outside incorporated cities
5 but within a negotiated area of city impact pursuant to chapter 65,
6 title 67, Idaho Code, or within one (1) mile outside the incorporated
7 limits of any city, both city and county zoning authorities and city
8 council and county commissions must approve such irrigation system in
9 accordance with section 50-1306, Idaho Code. In addition, the irriga-
10 tion entity charged with the delivery of water to said lands must be
11 advised regarding the irrigation system.
12 (iii) For proposed subdivisions located outside an area of city
13 impact in counties with a zoning ordinance, the delivery system must
14 be approved by the appropriate county zoning authority, and the
15 county commission with the advice of the irrigation entity charged
16 with the delivery of water to said lands.
17 (iv) For proposed subdivisions located outside an area of city
18 impact in counties without a zoning ordinance, such irrigation system
19 must be approved by the board of county commissioners with the advice
20 of the irrigation entity charged with the delivery of water to said
21 lands.
22 (c) The owner of the easement or right-of-way and the owner of the
23 servient estate have provided written permission for any physical altera-
24 tion of easements or rights-of-way and for any encroachments on easements
25 or rights-of-way, including encroachments by any public or private roads,
26 utilities, fences, gates, pipelines, structures or any other construction
27 or placement of objects.
28 (2) (a) In the event that the provisions of either subsection (1)(a), or
29 (1)(b) or (1)(c) of this section have not been complied with, the assess-
30 ments of the irrigation entity for operation, maintenance, construction,
31 and other valid charges permitted by statute shall in no way be affected.
32 Any person, firm or corporation or any other person offering such lots in
33 such subdivision for sale, or selling such lot shall, prior to the sale,
34 advise the purchaser in writing as follows:
35 (i) That suitable water deliveries have not been provided; and
36 (ii) That the purchaser of the lot must remain subject to all
37 assessments levied by the irrigation entity; and
38 (iii) That the individual purchaser shall be responsible to pay such
39 legal assessments; and
40 (iv) That the assessments are a lien on the land within the irriga-
41 tion entity; and
42 (v) That the purchaser may at a future date petition the appropri-
43 ate irrigation entity for exclusion from the irrigation district; and
44 (vi) Whether written permission as required by subsection (1)(c) of
45 this section has been obtained from the owner of the easement or
46 right-of-way and the owner of the servient estate.
47 (b) A disclosure statement executed by the purchasers and duly acknowl-
48 edged, containing the representations required in this subsection of this
49 section, shall be obtained by the seller at the time of receipt of the
50 earnest money from the purchaser, and affixed to the proposed sales con-
51 tract and a copy thereof shall be forwarded to the appropriate irrigation
52 entity.
53 SECTION 2. That Section 42-1102, Idaho Code, be, and the same is hereby
54 amended to read as follows:
3
1 42-1102. OWNERS OF LAND -- RIGHT TO RIGHT-OF-WAY. When any such owners or
2 claimants to land have not sufficient length of frontage on a stream to afford
3 the requisite fall for a ditch, canal or other conduit on their own premises
4 for the proper irrigation thereof, or where the land proposed to be irrigated
5 is back from the banks of such stream, and convenient facilities otherwise for
6 the watering of said lands cannot be had, such owners or claimants are enti-
7 tled to a right-of-way through the lands of others, for the purposes of irri-
8 gation. The right-of-way shall include, but is not limited to, the right to
9 enter the land across which the right-of-way extends, for the purposes of
10 cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy
11 such width of the land along the banks of the ditch, canal or conduit as is
12 necessary to properly do the work of cleaning, maintaining and repairing the
13 ditch, canal or conduit with personnel and with such equipment as is commonly
14 used, or is reasonably adapted, to that work. The right-of-way also includes
15 the right to deposit on the banks of the ditch or canal the debris and other
16 matter necessarily required to be taken from the ditch or canal to properly
17 clean and maintain it, but no greater width of land along the banks of the
18 canal or ditch than is absolutely necessary for such deposits shall be occu-
19 pied by the removed debris or other matter. Provided, that in the making, con-
20 structing, keeping up and maintenance of such ditch, canal or conduit, through
21 the lands of others, the person, company or corporation, proceeding under this
22 section, and those succeeding to the interests of such person, company or cor-
23 poration, must keep such ditch, canal or other conduit in good repair, and are
24 liable to the owners or claimants of the lands crossed by such work or aque-
25 duct for all damages occasioned by the overflow thereof, or resulting from any
26 neglect or accident (unless the same be unavoidable) to such ditch or aque-
27 duct.
28 The existence of a visible ditch, canal or conduit shall constitute notice
29 to the owner, or any subsequent purchaser, of the underlying servient estate,
30 that the owner of the ditch, canal or conduit has the right-of-way and inci-
31 dental rights confirmed or granted by this section.
32 Rights-of-way provided by this section are essential for the operations of
33 the ditches, canals and conduits. No person or entity shall cause or permit
34 any encroachments onto the right-of-way, including public or private roads,
35 utilities, fences, gates, pipelines, structures, or other construction or
36 placement of objects, without the written permission of the owner of the
37 right-of-way and the owner of the servient estate. Encroachments of any kind
38 placed in such right-of-way without express written permission of the owner of
39 the right-of-way shall be removed at the expense of the person or entity caus-
40 ing or permitting such encroachment, upon the request of the owner of the
41 right-of-way.
42 This section shall apply to ditches, canals or other conduits existing on
43 the effective date of this act, as well as to ditches, canals or other con-
44 duits constructed after such effective date.
45 SECTION 3. That Section 42-1208, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 42-1208. EASEMENTS OR RIGHTS-OF-WAY NOT SUBJECT TO ADVERSE POSSESSION.
48 Easements or rRights-of-way of irrigation districts, Carey act operating com-
49 panies, nonprofit irrigation entities, and lateral ditch associations, and
50 drainage districts are not subject to adverse possession, and no person shall
51 prevent free access of authorized personnel on easements or rights-of-way or
52 construct any obstruction on easements or rights-of-way in an effort to
53 adversely possess said easement or right-of-way.
4
1 SECTION 4. That Chapter 12, Title 42, Idaho Code, be, and the same is
2 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
3 ignated as Section 42-1209, Idaho Code, and to read as follows:
4 42-1209. ENCROACHMENTS ON EASEMENTS AND RIGHTS-OF-WAY. Easements or
5 rights-of-way of irrigation districts, Carey act operating companies, non-
6 profit irrigation entities, lateral ditch associations, and drainage districts
7 are essential for the operations of such irrigation and drainage entities.
8 Accordingly, no person or entity shall cause or permit any encroachments onto
9 the easements or rights-of-way, including any public or private roads, utili-
10 ties, fences, gates, pipelines, structures or other construction or placement
11 of objects, without the written permission of the irrigation district, Carey
12 act operating company, nonprofit irrigation entity, lateral ditch association,
13 or drainage district owning the easement or right-of-way and the owner of the
14 servient estate. Encroachments of any kind placed in such easement or right-
15 of-way, without such express written permission shall be removed at the
16 expense of the person or entity causing or permitting such encroachments, upon
17 the request of the owner of the easement or right-of-way or the owner of the
18 servient estate.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
Moved by Campbell
Seconded by Cuddy
IN THE HOUSE OF REPRESENTATIVES
HOUSE AMENDMENTS TO H.B. NO. 634
1 AMENDMENT TO SECTION 2
2 On page 3 of the printed bill, in line 37, delete "and the owner of the
3 servient estate" and insert: ", in order to ensure that any such encroachments
4 will not unreasonably or materially interfere with the use and enjoyment of
5 the right-of-way"; and in line 41, following "right-of-way" insert: ", in the
6 event that any such encroachments unreasonably or materially interfere with
7 the use and enjoyment of the right-of-way. Nothing in this section shall in
8 any way affect the exercise of the right of eminent domain for the public pur-
9 poses set forth in section 7-701, Idaho Code".
10 AMENDMENTS TO SECTION 4
11 On page 4, in line 13, delete "and the owner of the" and in line 14,
12 delete "servient estate" and insert: ", in order to ensure that any such
13 encroachments will not unreasonably or materially interfere with the use and
14 enjoyment of the easement or right-of-way"; in line 17, following
15 "right-of-way" delete "or the owner of the" and in line 18, delete "servient
16 estate" and insert: ", in the event that any such encroachments unreasonably
17 or materially interfere with the use and enjoyment of the easement or right-
18 of-way. Nothing in this section shall in any way affect the exercise of the
19 right of eminent domain for the public purposes set forth in section 7-701,
20 Idaho Code".
21 AMENDMENTS TO THE BILL
22 On page 1, delete lines 16 through 43, and on page 2, delete lines 1
23 through 52, and renumber subsequent sections of the bill accordingly.
24 CORRECTION TO TITLE
25 On page 1, in line 2, delete "AMENDING SEC-", and delete lines 3, 4 and 5
26 and in line 6, delete "AND TO REQUIRE NOTIFICATION;".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-seventh Legislature Second Regular Session - 2004
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 634, As Amended
BY RESOURCES AND CONSERVATION COMMITTEE
1 AN ACT
2 RELATING TO IRRIGATION AND DRAINAGE EASEMENTS AND RIGHTS-OF-WAY; AMENDING SEC-
3 TION 42-1102, IDAHO CODE, TO REQUIRE PERMISSION FROM OWNERS OF IRRIGATION
4 RIGHTS-OF-WAY FOR ENCROACHMENTS OF ANY KIND ON THE RIGHTS-OF-WAY; AMENDING
5 SECTION 42-1208, IDAHO CODE, TO CLARIFY THAT PROTECTION FROM ADVERSE POS-
6 SESSION APPLIES TO EASEMENTS AS WELL AS TO RIGHTS-OF-WAY OF IRRIGATION AND
7 DRAINAGE DISTRICTS; AND AMENDING CHAPTER 12, TITLE 42, IDAHO CODE, BY THE
8 ADDITION OF A NEW SECTION 42-1209, IDAHO CODE, TO REQUIRE WRITTEN PERMIS-
9 SION OF THE OWNER OF AN IRRIGATION OR DRAINAGE EASEMENT OR RIGHT-OF-WAY
10 BEFORE ENCROACHMENTS OF ANY KIND ARE PERMITTED.
11 Be It Enacted by the Legislature of the State of Idaho:
12 SECTION 1. That Section 42-1102, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 42-1102. OWNERS OF LAND -- RIGHT TO RIGHT-OF-WAY. When any such owners or
15 claimants to land have not sufficient length of frontage on a stream to afford
16 the requisite fall for a ditch, canal or other conduit on their own premises
17 for the proper irrigation thereof, or where the land proposed to be irrigated
18 is back from the banks of such stream, and convenient facilities otherwise for
19 the watering of said lands cannot be had, such owners or claimants are enti-
20 tled to a right-of-way through the lands of others, for the purposes of irri-
21 gation. The right-of-way shall include, but is not limited to, the right to
22 enter the land across which the right-of-way extends, for the purposes of
23 cleaning, maintaining and repairing the ditch, canal or conduit, and to occupy
24 such width of the land along the banks of the ditch, canal or conduit as is
25 necessary to properly do the work of cleaning, maintaining and repairing the
26 ditch, canal or conduit with personnel and with such equipment as is commonly
27 used, or is reasonably adapted, to that work. The right-of-way also includes
28 the right to deposit on the banks of the ditch or canal the debris and other
29 matter necessarily required to be taken from the ditch or canal to properly
30 clean and maintain it, but no greater width of land along the banks of the
31 canal or ditch than is absolutely necessary for such deposits shall be occu-
32 pied by the removed debris or other matter. Provided, that in the making, con-
33 structing, keeping up and maintenance of such ditch, canal or conduit, through
34 the lands of others, the person, company or corporation, proceeding under this
35 section, and those succeeding to the interests of such person, company or cor-
36 poration, must keep such ditch, canal or other conduit in good repair, and are
37 liable to the owners or claimants of the lands crossed by such work or aque-
38 duct for all damages occasioned by the overflow thereof, or resulting from any
39 neglect or accident (unless the same be unavoidable) to such ditch or aque-
40 duct.
41 The existence of a visible ditch, canal or conduit shall constitute notice
42 to the owner, or any subsequent purchaser, of the underlying servient estate,
43 that the owner of the ditch, canal or conduit has the right-of-way and inci-
2
1 dental rights confirmed or granted by this section.
2 Rights-of-way provided by this section are essential for the operations of
3 the ditches, canals and conduits. No person or entity shall cause or permit
4 any encroachments onto the right-of-way, including public or private roads,
5 utilities, fences, gates, pipelines, structures, or other construction or
6 placement of objects, without the written permission of the owner of the
7 right-of-way, in order to ensure that any such encroachments will not
8 unreasonably or materially interfere with the use and enjoyment of the right-
9 of-way. Encroachments of any kind placed in such right-of-way without express
10 written permission of the owner of the right-of-way shall be removed at the
11 expense of the person or entity causing or permitting such encroachment, upon
12 the request of the owner of the right-of-way, in the event that any such
13 encroachments unreasonably or materially interfere with the use and enjoyment
14 of the right-of-way. Nothing in this section shall in any way affect the exer-
15 cise of the right of eminent domain for the public purposes set forth in sec-
16 tion 7-701, Idaho Code.
17 This section shall apply to ditches, canals or other conduits existing on
18 the effective date of this act, as well as to ditches, canals or other con-
19 duits constructed after such effective date.
20 SECTION 2. That Section 42-1208, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 42-1208. EASEMENTS OR RIGHTS-OF-WAY NOT SUBJECT TO ADVERSE POSSESSION.
23 Easements or rRights-of-way of irrigation districts, Carey act operating com-
24 panies, nonprofit irrigation entities, and lateral ditch associations, and
25 drainage districts are not subject to adverse possession, and no person shall
26 prevent free access of authorized personnel on easements or rights-of-way or
27 construct any obstruction on easements or rights-of-way in an effort to
28 adversely possess said easement or right-of-way.
29 SECTION 3. That Chapter 12, Title 42, Idaho Code, be, and the same is
30 hereby amended by the addition thereto of a NEW SECTION, to be known and des-
31 ignated as Section 42-1209, Idaho Code, and to read as follows:
32 42-1209. ENCROACHMENTS ON EASEMENTS AND RIGHTS-OF-WAY. Easements or
33 rights-of-way of irrigation districts, Carey act operating companies, non-
34 profit irrigation entities, lateral ditch associations, and drainage districts
35 are essential for the operations of such irrigation and drainage entities.
36 Accordingly, no person or entity shall cause or permit any encroachments onto
37 the easements or rights-of-way, including any public or private roads, utili-
38 ties, fences, gates, pipelines, structures or other construction or placement
39 of objects, without the written permission of the irrigation district, Carey
40 act operating company, nonprofit irrigation entity, lateral ditch association,
41 or drainage district owning the easement or right-of-way, in order to ensure
42 that any such encroachments will not unreasonably or materially interfere with
43 the use and enjoyment of the easement or right-of-way. Encroachments of any
44 kind placed in such easement or right-of-way, without such express written
45 permission shall be removed at the expense of the person or entity causing or
46 permitting such encroachments, upon the request of the owner of the easement
47 or right-of-way, in the event that any such encroachments unreasonably or
48 materially interfere with the use and enjoyment of the easement or right-of-
49 way. Nothing in this section shall in any way affect the exercise of the right
50 of eminent domain for the public purposes set forth in section 7-701, Idaho
51 Code.
STATEMENT OF PURPOSE
RS 13887C1
This legislation would modify statutes to provide for
written approval by irrigation and drainage entities and owners
of the underlying fee title for encroachments onto the easements
and rights-of-way necessary for delivery of water by irrigation
and drainage entities. It would clarify that easements and
rights-of-way are protected from adverse possession. It would
clarify that drainage district easements and rights-of-way are
not subject to adverse possession. It would also require
subdividers to obtain written approval from the irrigation or
drainage entity and owners of the underlying fee title of any
alterations to irrigation or drainage easements or rights-of-way
and alterations of and encroachments upon those easements or
rights-of-way, and to disclose to buyers of lots whether written
permission has been obtained. Currently, some counties do
require such approval. Others do not consistently obtain such
approval. This law makes it uniform requiring all planning and
zoning and other land use decisions to involve and obtain
approval from the irrigation and drainage entities and owners of
the underlying fee title.
FISCAL IMPACT
This bill will have no negative fiscal impact.
Contact
Name: Norm Semanko, Idaho Water Users Association
Phone: (208) 344-6690
STATEMENT OF PURPOSE/FISCAL NOTE H 634