42-1209.  Encroachments on easements and rights-of-way.

 

(1) Easements or rights-of-way operated, maintained, controlled or owned by irrigation districts, Carey act operating companies, nonprofit irrigation entities, lateral ditch associations, and drainage districts are essential for the operations of such irrigation and drainage entities.

Accordingly, no person or entity shall cause or permit any encroachments onto the easements or rights-of-way, including any public or private roads, utilities, fences, gates, pipelines, structures, landscaping, trees, vegetation, or other construction or placement of objects, without the written permission of the irrigation district, Carey act operating company, nonprofit irrigation entity, lateral ditch association, or drainage district owning, operating, maintaining, or controlling the easement or right-of-way, in order to ensure that any such encroachments will not unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way and the incidental rights and protections described in sections 42-1102 and 42-1207, Idaho Code. Such written permission shall not be unreasonably withheld.

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(2)  Encroachments of any kind placed in such easement or right-of-way, without such express written permission, shall be removed or modified, and the ditch, canal, lateral, drain, conduit, easement, or right-of-way shall be repaired or restored at the expense of the person or entity causing or permitting such encroachments, upon the request of the persons operating, maintaining, or controlling the easement or right-of-way or the owner of the easement or right-of-way, in the event that any such encroachments unreasonably or materially interfere with the use and enjoyment of the easement or right-of-way.

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(a)  The person or entity that caused or permitted the encroachment shall perform such removal, modification, repair, or restoration within a reasonable time after request from the owner or operator of the easement or right-of-way, or immediately upon such request in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency. What constitutes a reasonable time to respond to the request depends on circumstances affecting the use, operation, maintenance, and repair of the ditch, canal, lateral, drain, or buried irrigation conduit and associated easement or right-of-way.

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(b)  If the person or entity that caused or permitted the encroachment fails to timely perform the requested actions, or in the event of reduced delivery or drainage of water, property damage, safety risk, or other emergency, the owner or operator of the easement or right-of-way may proceed to perform such actions at the expense of the person or entity that caused or permitted the encroachment, as long as no work is performed on any municipal or public utility line.

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(3)  Any person or entity that causes or permits an encroachment shall be responsible for its use, operation, maintenance, repair, and replacement to prevent unreasonable or material interference with a ditch, canal, lateral, drain, or conduit and the associated easement or right-of-way and shall be liable for all damages that may accrue therefrom.

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(4)  Nothing in this section shall in any way affect the exercise of the right of eminent domain for the public purposes set forth in section 7-701, Idaho Code.

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History:

[42-1209, added 2004, ch. 179, sec. 3, p. 563; am. 2019, ch. 158, sec. 5, p. 514; am. 2019, ch. 183, sec. 3, p. 592; am. 2024, ch. 93, sec. 15, p. 438.]