Hi tony,
Unable to locate caselaw on the water line but did locate similar caselaw for a ditch easement in Colorado.
Under Roaring For Club v. St. Judes, affirming the trial court's and court of appeals' finding that the Club trespassed on the Ranch's easements by its unilateral alterations, the court provided a test for determining whether or not ditch easements should be allowed. The court announces the Restatement (Third) of Property (Servitudes) § 4.8(3)(2000) "as the correct statement of controlling legal principle for purposes of analyzing a ditch easement relocation or alteration." Id. at 9. The Restatement provides accommodation to the servient owner and protection to the dominant owner as follows:
Unless expressly denied by the terms of an easement, ... the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not:
a. significantly lessen the utility of the easement,b. increase the burdens on the owner of the easement in its use and enjoyment, orc. frustrate the purpose for which the easement was created.
Restatement (Third) of Property (Servitudes) § 4.8(3) (2000).
Thus, under the Restatement test a burdened owner may move or alter a ditch easement so long as such alteration does not damage the benefitted estate owner.
However, the court specifically disapproved of the unilateral action and self-help remedy that the Club exercised in this case by moving forward with alterations absent consent from the Ranch. Id. at 9. As clear direction for burdened and benefitted owners, the court outlines an appropriate procedure to follow in the future. The first and best course of action is for the owners to agree to any alterations or relocations of the ditch which would accommodate both parties. If the benefitted owner refuses to consent or agree to the alterations, then the burdened property owner should seek a court declaratory judgment that the proposed alteration does not damage the benefitted owner in accordance with the Restatement test. This procedure provides an appropriate forum for both owners to prove that alterations will or will not cause damage.
My understanding from this Colorado Supreme Court test is that you would need to take the matter to a court in your county to declare the easement necessary under the circumstances.
You cannot take any self-help or condemnation action.
Hope this helps.
M. Strisik, Esq.
Attorney
General practitioner; former litigator.