How are well rights determined?

More than 40 years ago, three brothers bought three lots side by side, and each brother built a cottage. They dug a single well on the middle lot and shared it. Now the middle cottage has been sold, and the well went with it. The new owners are claiming that the well is theirs. What rights, if any, do the two brothers have to that well? —S. Jancen, via e-mail
 

Possibly none, says Rusty Russell of law firm Russell Christie in Orillia. It would have been incredibly helpful if, at any point during the last 40 years, the middle brother had given the other two an easement saying that they could use the well. However, Russell says bros one and three may have the right to use the well through a “prescriptive easement.”

A prescriptive easement can be granted after at least 20 years of “continuous, open, peaceable, uninterrupted use of the land without the objection of the owner,” says Rob Kerr, a lawyer with Lee Roche & Kelly in Bracebridge. If the two brothers have been accessing the well for 40 years under these circumstances, a court may feel they can continue doing so. (It’s possible that another type of easement applies in this case, but without more details, it’s hard to know.)

If the two brothers think they have legal grounds for an easement, they could explain this to the middle owners, who then might agree to share the well. If so, says Kerr, the three parties should sit down and discuss: Who maintains the well, repairs it, or replaces it? What happens if one party draws too much water? “Maybe the middle owner has 18 bathrooms,” says Kerr.

On the other hand, the middle owner might say, “It’s my well now, so get lost.” Then everybody has to go to court.