Is a deed’s language granting a “temporary” well easement enough to ensure that the easement is actually temporary? The New Hampshire Supreme Court determined it did not in its opinion in Arell v. Palmer, 2020 WL 6372951 (N.H. October 30, 2020).
Arell involved a dispute between owners of two neighboring residential properties. When the defendants bought their property, their deed granted a “temporary easement” to access a well on a neighboring parcel. The deed granted access “until such time” as the defendants “have another water source available”. After 18 years of defendants’ using the well and making no attempt to create their own water source, the owners of the servient estate (the neighboring property with the well onsite) sued the defendants in the superior court. Their lawsuit was successful in the superior court. The judge held that the easement’s “temporary” language was ambiguous and that the rule of reason required the defendants to install a well on their own property if it was feasible.
The Supreme Court Decision
The New Hampshire Supreme Court reversed the superior court’s decision. It held that the defendants’ easement was unambiguous and imposed no duty on the defendants to obtain another water source.
In interpreting a deed, courts in New Hampshire give it the meaning intended by the parties at the time they wrote it. The courts take into account the surrounding circumstances at that time. If the language of the deed is clear and unambiguous, courts interpret the intended meaning from the deed itself. They consider it as a whole, without resorting to extrinsic evidence. If, on the other hand, the language of the deed is ambiguous, extrinsic evidence of the parties’ intentions and the circumstances surrounding the conveyance may be used to clarify its terms.
The Supreme Court held that the deed’s reference to a “temporary easement” was not ambiguous, and instead only conditioned the phrase “until such time as” the defendants have an alternative water source. This means that if the defendants never decide to install their own well, and if municipal water service is never available to the parcel, the “temporary” well easement could really last forever, as there is no triggering event that would automatically terminate the easement. Easements that automatically terminate upon the occurrence of a specific event are referred to as “determinable easements.”
As the Supreme Court held that the easement language was unambiguous, it disapproved of the trial court’s application of the rule of reason to interpret the language, as it only applies to give reasonable meaning to general or unclear terms in the deed language granting an easement. The court also held that there was not enough evidence supporting the plaintiffs’ argument that the ongoing nature of the well easement was unreasonably burdensome.
Often these types of basic infrastructure easements are drafted last minute as a courtesy or as a means to push the sale of real property through by the deadline for closing. The holding in Arell should be a warning to future grantors and grantees of well easements (as well as utility and access easements). If the intent of the parties is to create a truly temporary easement, just using the phrase “temporary” is not enough. Additionally, reviewers of the deed language granting the easement should ensure that there is a specific obligation for the grantee (the person that uses and benefits from the well easement) to install their own well. This could be triggered by a set number of years passing or another triggering event over which the grantee does not have sole control.
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