Assessing the Quality of a Water Right

Abstract

This article deals with Kansas water rights – specifically how one assesses the quality of a water right, whether done for the purpose of conducting an inventory or preparing for a transaction. The topic is important because lawyers must aid clients in transactions involving water rights, which in Kansas are real property interests and thus treated as land: deeds are used for conveyancing; the Statute of Frauds requires the contracts of sale to be in writing; and mortgages are the security devices for financing the deal. In a water rights purchase, the buyer’s lawyer must assess both the quality of the title of the water right, including the real estate to which the right is appurtenance, and the quality of the water right itself. The former topic was covered by the author in an article, “Title and Related Considerations in Conveying Kansas Water Rights,” 66 J. Kan. Bar. Assoc., 38 (1997). These two articles go together, because a water right may have good title, but have problems un-associated with title such as mistakes in the documents or termination for non-use issues. Alternatively, the water right itself may be perfect in all regards, but the title may have issues. This article on the quality of the water right distinguishes between water (personal property) and water rights (real property). It discusses issues such as when water rights become real property interests, how water rights information is found, and what attributes water rights have. It discusses conditions in permits and certificates, abandonment, change orders, correctional orders, and water rights status reports.