After the agreement has identified the parties, properties and purpose of the agreement, it must indicate who is responsible for the costs of installing, operating and maintaining the well. Water users should be jointly responsible for the authorized use and maintenance of wells. Taking the time to specify how the parties will allocate the costs of maintaining, repairing, upgrading and replacing well equipment, including the date of payment of these costs, can help avoid disputes between the parties and subsequent owners. Unregistered agreements undermine applicability, as successors are unlikely to be aware of the common well agreement. This was the case at Koelker v. Turnbull. At Koelker, the seller imposed a guarantee obligation on the purchaser, but did not disclose the existence of a third-party interest in the property under an unregant shared Well agreement.  When third parties attempted to exercise their water interest in the buyer`s well, the buyer sued the tacit ownership and the seller`s violation of an explicit guarantee of right.  The buyer obtained a default judgment against the third parties and the seller.
 The seller appealed and the court found that the seller had violated the express guarantee of the right and that the amount of damages suffered by the buyer was his legal fees.  To avoid confusion, the parties must clearly state the purpose of an association agreement, which is usually the transfer of a property right into the water. Parties should consider whether their use will be continuous, periodic or seasonal. In addition, the provisions of the agreement should specify that the intended use is exclusively for domestic use or that it covers agriculture or commercial use. Clear expressions of the purpose of the well contract can avoid trouble between the current parties and all subsequent owners of the land under agreement. One of the options available to the parties to a sharing agreement is to continue the implementation of the agreement. However, litigation can cost several times the cost of a well repair and take too long to get water for morning coffee. For this reason, the parties may include a mediation or arbitration clause. Arbitration procedures are generally more favourable than disputes and are binding on the parties. Ensure that there are call and response communications and performance rules that require communication between the parties and measures to ensure timely dispute resolution.  See Idaho Department of Environmental Quality, www.deq.idaho.gov/water-quality/ground-water/private-wells.aspx (last june 13, 2017).
Bio Author: For more than a decade, Macomber Law, PLLC has focused on real estate, land use, water and construction. Prior to attending the University of California Hastings College of the Law, Mr. Macomber spent 25 years in economics, real estate and construction. Mr. Macomber`s bachelor`s degree in business was obtained from George Fox University. This agreement is a legal document between two parties regarding the supply of water to the well and the sharing of supply costs. The supplier part shares the water from the well with the delivered part and all costs of fixing the supply system are distributed among the parties. The agreement can be used in any U.S.
state. If a well needs to be repaired, the agreement must indicate who is responsible for the repair.