Water-Drawing Easement: Rights and Obligations Between Neighbours

A well dug several generations ago now stands on the land of a single owner, while the neighbouring house has always used it to water the vegetable garden or fill a drinking trough. The new purchaser of the plot where the well is located decides to fence it off and now refuses any access. The neighbour considers that he has always had a right to draw water from it. This dispute, common in rural areas as well as in old housing developments, is settled through a specific mechanism of the French Civil Code: the water-drawing easement (servitude de puisage). This guide explains how a water easement between neighbours arises, what rights and obligations it entails, how to compensate the owner of the land that bears it, and by what means it may be extinguished.

Understanding the water-drawing easement

Definition and terminology

An easement (servitude) is defined by Article 637 of the French Civil Code as "a burden imposed on a property for the use and benefit of a property belonging to another owner". Two plots of land are therefore always involved: the dominant land (fonds dominant), which benefits from the easement, and the servient land (fonds servant), which bears it.

The water-drawing easement gives the owner of the dominant land the right to take water from the neighbouring land, usually from a well, a spring, a cistern or another water point. It necessarily includes a right of way to reach the water point, without which the right to draw water would remain theoretical. This is why a water easement between neighbours is never limited to the mere taking of water: it also governs movement across the servient land.

It must be distinguished from two other neighbouring easements. The aqueduct easement (servitude d'aqueduc) allows water to be carried across another person's land by a pipe or a ditch, without repeated human intervention. The spring easement (servitude de source) concerns the use of water that rises naturally. These distinctions are not academic: they determine the applicable legal regime, in particular the method of creation. The passage of a wastewater pipe under the neighbouring land, the ways in which it is created and the allocation of its maintenance are dealt with in our article on that easement.

A discontinuous easement, apparent or not

The technical classification of the water-drawing easement determines everything else. Article 688 of the French Civil Code classifies easements as continuous or discontinuous. Continuous easements are exercised without any actual act of man (a pipe that lets water flow permanently). Discontinuous easements require an actual act of man in order to be exercised. The text expressly cites drawing water as an example of a discontinuous easement.

This classification is decisive. Drawing water requires, each time, a person to go to the spot, operate a pump or fill a container. It is a repeated human act, never a passive flow. The water-drawing easement is therefore, by nature, a discontinuous easement.

It may also be apparent or non-apparent, depending on whether an external structure reveals its existence. A masonry well, a visible pump or a path marked out to the water point make the easement apparent. Conversely, a right to draw water exercised without any visible arrangement remains non-apparent. This second distinction, set out in Article 689 of the French Civil Code, matters above all when proving the existence of the easement and informing the purchaser of a plot of land.

How to create a water-drawing easement

Title, the only means of creation

This is the point most often misunderstood by owners of a shared well. Many believe that long-standing use, exercised for decades in full view of everyone, is enough to consolidate a right. This is not the case.

Article 691 of the French Civil Code is categorical:

"Continuous non-apparent easements, and discontinuous easements, whether apparent or not, may be established only by title. Even immemorial possession is not sufficient to establish them."

Since the water-drawing easement is discontinuous, it cannot be acquired by thirty-year prescription. A neighbour who has drawn water from the well for fifty years, without interruption, cannot rely on that use alone to impose a right on the new owner. Possession, however long, remains legally ineffective here. This rule contrasts with the regime of continuous and apparent easements, which may be acquired by thirty years of possession under Article 690 of the French Civil Code.

The "title" within the meaning of these provisions is a legal instrument. It most often takes the form of an agreement between the two owners, but it may also result from a will or a deed of partition of an estate. For a right relating to real property and intended to survive successive sales, a notarial deed registered with the land registration office (service de la publicité foncière) is in practice essential: it makes the easement enforceable against subsequent purchasers of both plots.

What the creating deed must contain

A properly drafted water-drawing easement agreement avoids most of the litigation. Ideally, it specifies the following:

• the cadastral identification of both plots, dominant and servient
• the exact location of the water point and of the route of the passage giving access to it
• the extent of the right: volume of water permitted, domestic or agricultural use, times or frequency of drawing
• the allocation of the costs of maintaining the well and the structures
• whether the easement is free of charge or for consideration and, where applicable, the compensation paid to the servient land

Take a concrete case. Two neighbouring owners, one running an orchard, the other having on his land a well fed by a groundwater table, sign before a notary (notaire) an agreement authorising the fruit grower to draw the water needed for irrigation, from 1 May to 30 September, using a track three metres wide running along the fence. The deed specifies that maintenance of the pump is shared and that compensation is paid to the owner of the well. This clause turns a precarious use into an enforceable real right.

The special case of destination by the head of the household

Some owners invoke "destination by the head of the household" (destination du père de famille) to justify an easement without a written instrument. This method of establishment, provided for in Articles 692 to 694 of the French Civil Code, applies where a single owner, before dividing his property, has organised an arrangement between the two parts. But Article 692 reserves this mechanism for continuous and apparent easements. Since the water-drawing easement is discontinuous, it cannot arise from destination by the head of the household. Here again, only an express title brings it into existence.

There is, however, a qualification: if, on the division of a single plot, the deed of division mentions the existence or continuation of a right to draw water for the benefit of one of the lots, that mention constitutes a title within the meaning of Article 694 of the French Civil Code. This is no longer destination by the head of the household, but a written title.

The rights and obligations arising from the easement

What the dominant land may do

The owner of the dominant land may exercise his right to draw water within the limits set by the title. Failing any specification, the use is determined by the intention of the parties and the purpose of the land. He also has, under Article 696 of the French Civil Code, everything necessary to use the easement: the right to draw water carries with it the right to pass in order to reach the water point.

Article 697 of the French Civil Code authorises the holder to carry out, at his own expense, the works necessary to use and preserve his easement, for example installing a pump or laying out a stabilised access. The cost of these works and of their maintenance falls on him, unless otherwise provided, pursuant to Article 698.

In return, the dominant land may not increase the burden. Article 702 of the French Civil Code prohibits using the easement beyond what the title provides. A neighbour authorised to draw water for domestic use may not turn that right into intensive industrial abstraction, nor open access to third parties unconnected with the dominant land.

What the servient land must respect

The owner of the shared well retains full ownership of his land and of his structure. He continues to use his well and may enjoy it freely, provided that he does not obstruct the neighbour's right.

Article 701 of the French Civil Code prohibits him from "doing anything that tends to diminish the use of the easement or to make it more inconvenient". He may therefore neither close off the well, nor move the water point as he pleases, nor obstruct access with an impassable fence. The same article nevertheless recognises his ability, if he can show an interest, to propose moving the route of the easement to a place equally convenient for the dominant land, at his own expense. This flexibility makes it possible, for example, to reorganise an access that interferes with a building project, without removing the neighbour's right. This ability to move the route is examined, for buried networks, in our article on building on a subsoil easement (servitude de tréfonds).

The sensitive question of maintaining the well

Maintenance of the shared well gives rise to a great deal of tension. The default rule of Article 698 places the cost of the works on the dominant land, but nothing prevents the parties from agreeing to share it. In practice, where the owner of the servient land also continues to use the well, an apportionment proportionate to each party's use is the most balanced and most durable solution. The creating deed should always settle this point: who pays for repairing the well curb, replacing the pump, and clearing silt.

Compensation of the servient land

A contractual easement freely negotiated

Unlike certain statutory easements, such as the right of way for enclosed land provided for in Article 682 of the French Civil Code, which gives entitlement to compensation proportionate to the damage caused, the water-drawing easement is in principle contractual. Its compensation is therefore a matter of freedom of contract. The parties freely set the price of the easement, which may be free of charge or for consideration. The criteria for calculating the compensation attached to a right of way are set out in our article on the price and compensation of a right of way (servitude de passage).

In practical terms, the creation of a water-drawing easement over a servient land constitutes a burden that durably encumbers the property and reduces its value. It is legitimate for the owner of the well to negotiate consideration. This consideration may take several forms: a lump sum paid once and for all on signature, a periodic payment, or reciprocity (the servient land receiving in exchange another right over the dominant land).

How to assess the compensation

No statutory scale fixes the amount. In notarial and expert practice, the assessment takes into account several parameters: the depreciation of the servient land, the intensity of the permitted use, the volume of water taken, the frequency of passage, the inconvenience suffered and the duration of the easement. A water-drawing easement limited to occasional summer watering does not have the same value as a permanent right of abstraction for intensive agricultural use.

Where the parties cannot agree on the very principle of the easement, no compensation is due: a water-drawing easement cannot be forced into existence by a neighbour, as it is not a statutory easement. The owner of the well remains free to refuse. Compensation comes into play only within an agreement of wills, of which it is precisely the counterpart.

How to extinguish a water-drawing easement

An easement is not necessarily perpetual. The French Civil Code provides for several grounds of extinction, particularly useful to the owner of a servient land who wishes to free his land.

Extinction by thirty years of non-use

This is the most common ground. Article 706 of the French Civil Code provides that "the easement is extinguished by non-use for thirty years". For a discontinuous easement such as the right to draw water, Article 707 specifies that these thirty years begin to run from the day on which the right ceased to be enjoyed.

Thus, if the neighbour holding the right has not drawn any water for more than thirty years, for example because he has connected to the mains drinking water supply, the easement is extinguished. The owner of the servient land may then have this extinction established and recover his land free of any burden. Article 708 adds that the manner of exercising the easement may also be extinguished by thirty years of non-use: a right to draw water exercised in a reduced way for three decades may become limited to that reduced use.

Extinction by merger

Article 705 of the French Civil Code provides that "every easement is extinguished when the land to which it is owed and the land which owes it are united in the same hands". If the owner of the dominant land buys the servient land, or the reverse, the easement disappears by merger (confusion): one cannot have an easement over one's own property. Note, however, that if the two plots are subsequently resold separately, the easement does not revive automatically. A new title will be required.

Extinction by impossibility of use

Article 703 of the French Civil Code provides that "easements cease when things are in such a state that they can no longer be used". If the well dries up permanently, if the groundwater table is exhausted or if the structure collapses with no possibility of repair, the water-drawing easement becomes devoid of purpose. It is, however, suspended rather than extinguished: Article 704 provides that it "revives" if things are restored so that it can be used, unless the thirty-year period of non-use has already elapsed in the meantime.

Extinction by renunciation or expiry of the term

The holder may renounce his easement, preferably by a written and registered instrument so that it is enforceable against third parties. Finally, where the title provided for an easement of fixed duration, it is extinguished when the agreed term arrives. Nothing prevents a temporary water-drawing easement from being stipulated, for example for the duration of a building project or of a seasonal operation.

Litigation and practical precautions

Proving the easement

Litigation over a shared well often pits the person who invokes an unwritten easement against the person who disputes it. Since a right to draw water can be acquired only by title, the burden of proof lies on the person claiming to benefit from it. Without an instrument, his right cannot be recognised, however long the use has lasted. Hence the crucial importance, for any purchaser of land said to benefit from a neighbouring well, of checking before purchase that a registered title exists.

A person who wishes to have his easement recognised in court brings a confessory action (action confessoire); a person who wishes to deny it and free his land brings a negatory action (action négatoire). These actions are brought before the judicial court (tribunal judiciaire) of the place where the property is located.

Anticipating at the time of sale

On the sale of a servient land, the seller must inform the purchaser of the existing easements. A non-apparent and undisclosed water-drawing easement may engage the seller's liability under the warranty. Conversely, a diligent purchaser has the title deed and the state of easements examined by a notary, and checks for any water easements between neighbours mentioned in the deed and at the land registration office.

Regularising long-standing use

Many shared wells have operated for generations solely on the basis of a verbal agreement or tolerance. This situation is fragile: tolerance creates no right and may end at any time, in particular on a change of owner. The solution is to formalise a title. The two neighbours often have an interest in securing the situation by a notarial deed, which protects the dominant land against a change of position by the servient land, and the servient land against an increase in the use.

Conclusion

The water-drawing easement illustrates a principle that many owners discover too late: under French law, long-standing use of a shared well does not create a right. Because it is a discontinuous easement, the water-drawing easement is never acquired by prescription, however long the possession, and can arise only from a title. This strictness, laid down by Article 691 of the French Civil Code, protects the owner of the servient land as much as it weakens the position of the person who has drawn water without any written instrument.

The safest position for both neighbours is therefore clear: formalise the situation by a precise notarial deed, which fixes the route, the extent of use, the allocation of maintenance and, where applicable, the compensation paid to the servient land. Such a deed prevents most disputes and survives successive sales. Conversely, the owner of a well who wishes to be released from an easement that has become useless has every interest in having its extinction established, by thirty years of non-use, by merger or by impossibility of use.

Before buying land said to benefit from a neighbouring well, or before allowing a neighbour to draw water on your land, have a professional check the existence and exact content of a registered title: it is the only document that turns a mere habit into an enforceable right.

Frequently asked questions

Can a water-drawing easement be acquired after thirty years of use?

No. The water-drawing easement is a discontinuous easement within the meaning of Article 688 of the French Civil Code, and Article 691 reserves this type of easement for establishment by title. Possession, even immemorial, is not sufficient. Use exercised for thirty years or more therefore creates no enforceable right in the absence of a written instrument.

How can the existence of a water easement over a neighbour's land be proved?

Proof rests exclusively on a title: a notarial agreement, a will, or a mention in a deed of partition. The title deed must be consulted and the registration of the easement at the land registration office checked. In the absence of a title, neither witness evidence, nor photographs, nor the length of the use makes it possible to have the easement recognised before the judicial court.

Can the owner of the well claim compensation?

Yes, because the water-drawing easement is contractual and its creation reduces the value of the servient land. The compensation is freely negotiated between the parties, in the form of a single lump sum or a periodic payment. Its amount takes account of the depreciation of the land, the intensity of the use and the duration of the easement. No statutory scale applies.

Can a neighbour be compelled to create a water-drawing easement?

No. Unlike the statutory right of way for enclosed land (Article 682 of the French Civil Code), the water-drawing easement is not a statutory easement. It requires the agreement of the owner of the servient land. No one can be compelled to allow water to be drawn on his land against his will.

Does a water-drawing easement disappear if the well dries up?

It ceases to have effect pursuant to Article 703 of the French Civil Code, which extinguishes the easement when it can no longer be used. But Article 704 specifies that it "revives" if the water point is restored so that water can be drawn again, unless the thirty-year period of non-use has elapsed in the meantime. The drying up therefore suspends the easement rather than extinguishing it definitively.

How can a water-drawing easement that has become useless be extinguished?

Several routes exist. Non-use for thirty years extinguishes it automatically (Article 706 of the French Civil Code). The union of the two plots in the hands of the same owner extinguishes it by merger (Article 705). The holder may also renounce it by a written and registered instrument. The owner of the servient land has an interest in having this extinction formally established in order to free his land.

Who pays for the maintenance of a shared well?

Failing a clause in the deed, Article 698 of the French Civil Code places the cost of the works necessary for the use of the easement on the dominant land. Where the owner of the servient land also uses the well, an apportionment proportionate to each party's use is the most balanced solution. It is strongly advisable to settle this allocation in the creating deed in order to avoid any later dispute.