We had a very similar situation in NW Montana where a property owner (A) tied into a private well on an adjoining property (B) without any documentation. They were friends. Some years later the friendly neighbor (B) died and the property was sold. The person (A) borrowing the water was told to move on as they did not want to share the well.

After a few years of battling back and forth, (A) ended up drilling their own well and abandoning the other connection.

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Originally posted by Bassamatic:

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Originally posted by CEShooter:
My money is on the architect missed this waterline during their design and is now trying to save face or try and buffalo the HOA into paying for the repair costs as the school told them that they, the architects, should have known it was there and the school isn’t going to pay for their mistake.

Yeah, it is unusual for an architect to write a letter like that but I doubt it would carry any less weight. Why do you think the architect should have known where the line is? There is nothing of record that discloses it.

My assumption is purely based upon who is "picking the fight" as it's been presented and assumptions on that market sector of construction. Also, because I've seen language on occasion that puts the responsibility of locating public and private utilities on that of the contractor. Most public bid jobs aren't rolling in the high profit margins so to get involved in a legal battle where typically everyone loses something seems a bit unique. If I was working on the contractors side the usual course of action that I would see is a letter stating, "Dear Mr./Mrs. School Board Member, you have a problem that's not my fault, you need to fix it and let me know when it's fixed and I reserve the right to charge you for my costs related to your problem."

That's 100% me passing judgement with a fraction of the information but it's seems odd enough that it grabs my attention.

As an architect, and one who has worked on schools, I see no reason the architect would be the one writing that letter. The city/county owns the land and they have the full legal resources to handle it.

Although I will say that I have done some public work that the municipality contracted us to do just about everything and have all contracts under us so I could possibly see the architect writing a letter about the discovery of the condition. But not demanding removal. All we would do is document the finding and maybe ask for a clarification with a survey, just as a red tape document.

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Originally posted by CEShooter:

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Originally posted by a1abdj:

The architect is the project manager, but owns nothing. Does their demand letter carry any weight?

I’ve only worked on the contractor side of school construction but this strikes me as a very odd letter for an architect to write. I’m not an architect or lawyer but I would think such a demand would come from the school’s lawyer. My money is on the architect missed this waterline during their design and is now trying to save face or try and buffalo the HOA into paying for the repair costs as the school told them that they, the architects, should have known it was there and the school isn’t going to pay for their mistake.

How would an architect miss it?

If a surveyor didn't know about it then that would mean it either wasn't permitted, it was built in the wrong place, or no official easement was ever filed in the records. It is possible that a surveyor didn't do the due diligence.

And surveyors are usually hired by owners, not architects.

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Originally posted by CEShooter:

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Originally posted by Bassamatic:

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Originally posted by CEShooter:
My money is on the architect missed this waterline during their design and is now trying to save face or try and buffalo the HOA into paying for the repair costs as the school told them that they, the architects, should have known it was there and the school isn’t going to pay for their mistake.

Yeah, it is unusual for an architect to write a letter like that but I doubt it would carry any less weight. Why do you think the architect should have known where the line is? There is nothing of record that discloses it.

My assumption is purely based upon who is "picking the fight" as it's been presented and assumptions on that market sector of construction. Also, because I've seen language on occasion that puts the responsibility of locating public and private utilities on that of the contractor. Most public bid jobs aren't rolling in the high profit margins so to get involved in a legal battle where typically everyone loses something seems a bit unique. If I was working on the contractors side the usual course of action that I would see is a letter stating, "Dear Mr./Mrs. School Board Member, you have a problem that's not my fault, you need to fix it and let me know when it's fixed and I reserve the right to charge you for my costs related to your problem."

This is exactly the letter the architect would write, as well. That's why it doesn't make sense the architect would write the other letter unless they had some contractual obligation as a project manager proxy for the municipality.

One last thing... retaining walls and site work are designed by civil engineers, not Architects. So the whole scope seems out of the architects hands.

Just my simple opinion - The buried line has been there 20 years. Whatever research and site investigation the school district did, they failed to discover the buried line. It's on the school district. Maybe the school district can go after who they bought the property from.

Nobody owns the water line, but the water line is within an easement owned by the water provider who plans to eventually install a new larger water line.

Small town politics. Water line was apparently put in by developer on a hand shake sort of deal. No inspections, no permission, nothing. When development was complete, nothing was ever deeded to anybody else.

City says it's not theirs, water company says it's not theirs, school doesn't want it on their property even though the water provider does have an easement where it's located, and homeowners in development have nothing that says they own it in their paperwork.

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Originally posted by a1abdj:
Nobody owns the water line, but the water line is within an easement owned by the water provider who plans to eventually install a new larger water line.

Small town politics. Water line was apparently put in by developer on a hand shake sort of deal. No inspections, no permission, nothing. When development was complete, nothing was ever deeded to anybody else.

City says it's not theirs, water company says it's not theirs, school doesn't want it on their property even though the water provider does have an easement where it's located, and homeowners in development have nothing that says they own it in their paperwork.

Hold on now. That changes everything.

If there was in fact an easement executed by the original developer and the adjoining land owner then that document was never recorded and must be sitting in a drawer somewhere.

I say that because a recorded easement would have shown up as an encumbrance on the school district's title policy and it would also be shown on the subdivision properties abutting the easement line. That did not happen so I am assuming this easement was never recorded. If in fact it was recorded then the school district would have a claim against the title company. Recording an easement is important as that gives "constructive notice" to the world that it exists. Also, a recorded easement does not need to be deeded or conveyed each time a piece of property is sold as it will always "run with the land".

Whoever is providing the water is in fact the owner of the water line...like it or not. I would love to see a copy of the title policy owned by the school district...but that ain't gonna happen.

This all needs to be litigated.

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If there was in fact an easement executed by the original developer and the adjoining land owner then that document was never recorded and must be sitting in a drawer somewhere.

There was never anything in writing involving the original developer and previous school property owner.

The easement that currently exists was just granted a few months ago for other purposes prior to the discovery of the encroachment.

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Whoever is providing the water is in fact the owner of the water line

The wording of the easement doesn't say they have to own the line, but I suspect they would have to claim ownership in order for it to be legal.

At the same time that easement was granted, the homeowners all granted an easement of their own for the future addition of a new larger water main. The water company says they won't be doing anything water line related until the school project is completed in another year or so. I'm assuming they would then abandon the current line in question.

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The water company says they won't be doing anything water line related until the school project is completed in another year or so. I'm assuming they would then abandon the current line in question.

That seems to be a possible solution.
Is the existing water line preventing the school district from developing or using that portion of the property currently?
If not, a new water line, within the easement and abandoning the old one should allow the school district to develop that part of the property without it being much of a hindrance.

I am a lawyer, but I prefer agreeable solutions over litigation. Litigation is time consuming and expensive and often leaves a bad taste in the mouth of both litigants. If it's just to prove a point it's usually not worth it.

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Is the existing water line preventing the school district from developing or using that portion of the property currently?

There's a retaining wall being built on that section of the property, and the contractor building the wall says they will not guarantee the integrity of the wall with the main running beneath it. This has caused the construction of the wall to stop until they figure out how they want to handle it.

So could the retaining wall be delayed until the new water line is put in? And then it won't matter if the old one is destroyed in the construction of the retaining wall?

I just got off the phone with the water company. The guy there has common sense like most of us here, but unlike those running our district.

He said that the new main has already been laid, but that the remainder of that work and some sewer work must be completed before they can take that over. Getting that done fixes this problem.

He added that since they won't be getting that finished in the near term, that the school should simply buy 100' of PVC and trench it in at their expense away from the wall project. He said that the expense of doing that would be less than a single day of delay on the wall, which apparently has already been ongoing for a few weeks at this point.

He has evidence that the district's engineer knew (or should have known) that this line existed in that exact location, and when they drafted the easement missed it entirely. That evidence was provided to the HOA and the district's superintendent yesterday. Board members have yet to know of its existence.

well with all the new information, the input of additional data, it appears to be a fluid situation....

If there is a recorded easement, regardless of it was executed 20 years ago or 2 years ago it has to be respected and the school should not have the right to build anything on it that would restrict the easement grantee from using it.