Alfano Law Office, PLLC

Alfano Law Office, PLLC
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Home » Blog » Can a Temporary Well Easement Be Permanent? The Decision of the NH Supreme Court

Can a Temporary Well Easement Be Permanent? The Decision of the NH Supreme Court

Some deeds in the state of New Hampshire grant temporary well easements. However, there are times when these temporary well easements end up being permanent and according to the New Hampshire Supreme Court, that is legal. The case where the courts decided that a temporary well easement can become permanent was Arell v. Palmer. 

 

This case was brought to the courts, because two owners had been utilizing the water source on a neighboring property for 18 years. When those two owners purchased their properties, their deeds allowed them temporary access to the well on the neighboring property. Those owners were told they could access the temporary well easement until they could have another water source available to them. 

 

After 18 years, the two owners had made no attempt to create another water source on their own property. It was at this time that the owner of the neighboring property chose to sue the two owners of the properties that were using the temporary well easement. 

 

The first lawsuit was successful. The judge deemed that the temporary language required the two other owners to have a well dug on their own property if it could be done. However, when the case was then taken to the New Hampshire Supreme Court, the ruling was reversed. The NH Supreme Court decided the two owners did not need to obtain a new water source on their own properties.

 

The courts in New Hampshire always interpret deeds using the meaning that was intended for the parties when the deed was written. As long as the deed is written clearly and is unambiguous, the courts can simply interpret the meaning that was intended for the deed. No other evidence is required in those cases. 

 

However, if it is thought that the language used on the deed is ambiguous, additional evidence of circumstances and intentions may be required to clarify what the deed actually means. 

 

The Supreme Court decided that the temporary well easement was not ambiguous. Since the deed stated the two owners could utilize the temporary well easement until they could have another water source available to them, they were under no obligation to actually have their own wells installed. So, unless municipal water became available, the temporary well easement could technically last forever. 

 

The owner of the well easement could not prove that sharing the well was a burden. Therefore, that route could not reverse the court’s decision of keeping the temporary well easement in place. 

 

The New Hampshire Supreme Court ruling of this case should be kept in mind when people are creating temporary easements of any kind in the future. It is simply not enough to use the word “temporary” on the deed. There must be specific dates or circumstances as to when the temporary easement will end or there is a chance it could be permanent. 

 

Do you have any concerns about a temporary well easement, or other type of easement? Contact me today and let’s talk.

Filed Under: Legislation, Real Estate Law

The above information is for informational purposes only and does not constitute legal advice.

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