Gowing v. Lehmann

• Decision Date: 31 December 1953
• Citation: 98 N.H. 414,101 A.2d 463
• Parties: GOWING v. LEHMANN.
• Court: New Hampshire Supreme Court

Page 463

101 A.2d 463

98 N.H. 414

GOWING v. LEHMANN.

Supreme Court of New Hampshire.

Submitted Nov. 5, 1953.

Decided Dec. 31, 1953.

Howard B. Lane, Keene (by brief), for plaintiff.

Homer S. Bradley, Keene (by brief), for defendant.

GOODNOW, Justice.

In 1943, the adjoining premises now owned by the plaintiff and defendant were both owned by Isabel F. Clukey. On that part of her property now owned by the defendant there was located an artesian well with an electric pump attached thereto through which water was pumped into a pipe line supplying the building on the property now owned by the plaintiff as well as into lines supplying two buildings on the property now owned by the defendant. On July 16, 1943, Mrs. Clukey conveyed to her mother, Mary A. Hafeli, the land and building now owned by the plaintiff together with 'the right and easement to take water from the well on other land of the grantor as now used and taken to the building on the premises hereby conveyed with the right to enter upon the said other premises of the grantor for the purpose of repairing and replacing said pipes when necessary. * * * The granting of this easement to include the use of the pipe line on my premises as now used provided, however, that should it be necessary at any time to repair or replace said pipe line used by the grantee, her successors and assigns, [she] shall bear her share of the expense of such replacement'. Two months later, Mrs. Clukey conveyed to the defendant the land and buildings now owned by him subject to such water rights and easements as had previously been conveyed to Mary A. Hafeli. The plaintiff acquired the Hafeli title and rights in 1950. Thereafter until June, 1952, the defendant continued to operate the pump which supplied water not only to his own buildings but also to the building of the plaintiff. The same well, pump and pipes are presently in place on the defendant's property as were there in 1950 when the plaintiff purchased his property. In 1952, the defendant developed a new water system through which water could be brought into the lines supplying his buildings by means of another pump from a nearby lake rather than from the well. The connection of this system by-passed the line supplying the plaintiff's property. At the same time, the well system including the pump was left intact in a stand-by capacity for use during the period of frost in the winter months when the lake system was not usable. 'If we don't want to use the well, we throw the switch out, and if we do, we throw it in.' On June 20, 1952, after notifying the plaintiff of his intention to discontinue the operation of the well pump during frost-free months, the defendant threw the switch out and thereby stopped the flow of water to the plaintiff's property. No agreement was ever made between the parties concerning the operation, repair or maintenance of the pump connected with the well, the annual average cost of which for the three years prior to 1952 exceeded $200. The Court found that the plaintiff could at all times obtain water from the well by installing a pump of his own without any material alteration to the water pipes supplying his property and that defendant had done nothing to deprive the plaintiff of taking water from the system as it existed in 1943, other than to cease operating his pump connected with it.

The defendant's requests raised the issue of whether he was obliged as a matter of law to operate and maintain the pump for the purpose of supplying water from the well to the plaintiff's building. The defendant excepted to the denial of his request that he had no duty to operate an electric pump for the benefit of the plaintiff and to the Court's order that he permit the plaintiff to take water 'in the same manner and under the same conditions as existed prior' to that date. Consideration of these exceptions requires an examination of the terms and extent of the...