Kenny v. Dwyer

546 A.2d 937, 16 Conn. App. 58, 1988 Conn. App. LEXIS 333
CourtConnecticut Appellate Court
DecidedSeptember 6, 1988
Docket5943
StatusPublished
Cited by18 cases

This text of 546 A.2d 937 (Kenny v. Dwyer) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenny v. Dwyer, 546 A.2d 937, 16 Conn. App. 58, 1988 Conn. App. LEXIS 333 (Colo. Ct. App. 1988).

Opinion

Dupont, C. J.

The defendant is appealing from the judgment of the trial court ordering the defendant to [59]*59allow the plaintiff unimpeded access to a well located on property owned by the defendant and issuing a permanent injunction restraining the defendant from interfering with the plaintiffs use of that well. We find error.

The following facts are pertinent to this appeal. The parties own adjoining properties located at Oak Grove Beach in East Lyme.1 Prior to December, 1970, municipal water service was not provided in that area. A fresh water well is located on the defendant’s property.

In 1962, the defendant’s predecessors in title to lot 313, Leslie and Ethel Sanders, entered into a “well agreement” with five adjoining property owners. That agreement granted these adjoining “[l]ot owners, their successors, heirs and assigns, an easement to use the well on said lot 313 and the installation leading therefrom to the various properties and to enter said lot 313 for the purpose of maintaining and repairing said Well and installations.” The well agreement provided that the easement was granted “with binding effect on any subsequent owner of lot 313.” The agreement further provided that the lot owners, excepting the grantor, would assume the cost of maintenance of the well and of the water pipes leading to the various properties. The well agreement was dated July 28, 1962, and was recorded on October 29, 1962.

The plaintiff’s predecessors in title to lot 316, F. L. and Dorothy McWilliams, were signatories to the well agreement. Prior to their signing of the agreement on July 28, 1962, however, the McWilliamses conveyed lot 316 to Raymond and Alice Sergent on July 12, 1962. The deed transferring lot 316 from the McWilliamses to the Sergents expressly included “the right to take [60]*60water from a well situated on Lot Number 313 . . . and owned by Leslie W. Sanders and Ethel G. Sanders, and subject to the obligations specifically set out in a ‘Well Agreement’ recorded on the Land Records . . . . ” On November 1, 1968, the Sergents conveyed by warranty deed lot 316 to John R. King, which deed expressly granted the right to take water from lot 313 pursuant to the well agreement. From 1962 to December, 1970, both the Sergents and John R. King took water from the well located on lot 313.

In December, 1970, a municipal water line was installed providing service to Oak Grove Beach. Thereafter, neither the Sanderses, the owners of lot 313, nor King, nor any other signatories to the well agreement used or drew any water from the well. Early in 1971, the tank and pumping equipment was dismantled and sold, and the well was covered with a wooden box.

On August 31, 1972, King conveyed title to lot 316 to the plaintiff. The deed conveying the property did not expressly mention the well easement but did, however, convey title “with the appurtances thereof” pursuant to the habendum clause of the deed. The plaintiff testified that he was aware of the well prior to his purchase of the property and that he considered the option to draw water from the well, rather than from the municipal water line, a distinct advantage and an added value to the property.

On October 10, 1973, a release of the well agreement was signed by the Sanderses, the owners of lot 313; John R. King, the plaintiff’s predecessor in title to lot 316; and the other signatories to the well agreement. The release contains neither witnesses nor an acknowledgment of King’s signature. There was testimony that the plaintiff was invited but declined to sign the release at the time of his purchase of lot 316. The plaintiff denied that he was requested to sign the release at the [61]*61time he purchased lot 316. There was no dispute, however, that the plaintiff declined to sign the release when so requested in June, 1978. The release was recorded on July 10, 1978.

Following the plaintiffs purchase of lot 316 in 1972, he has not used, maintained or drawn water from the well. On June 28, 1978, the Sanderses conveyed lot 313 to the defendant “subject to a certain agreement concerning well rights and obligations . . . .” On May 15, 1984, the defendant removed the box covering the well and filled the well with sand. One week later, the plaintiff commenced this action. Although the well has not been used since December, 1970, soundings of the well indicate that the original water level remains intact.

The plaintiff alleged in his complaint that his predecessor and the defendant’s predecessor in title entered into a well agreement granting well rights in favor of lot 316, that the well agreement was in effect at the time he purchased lot 316, and that such agreement was binding on any subsequent owner of lot 313. Accordingly, the plaintiff alleged that the defendant’s filling in of the well prevented the exercise of his rights under the well agreement and caused him irreparable harm. The plaintiff farther alleged that the defendant’s actions constituted a trespass and that the defendant, by proceeding “under the guise that the well agreement is terminated,” was acting in bad faith. The plaintiff requested a permanent injunction requiring the defendant to restore the well and restraining the defendant from ever filling in the well or interfering with the plaintiff’s right to use the well.

The defendant in her answer denied that the easement was in effect at the time the plaintiff purchased lot 316 and denied that she had breached the easement agreement. The defendant also denied the plaintiffs allegations regarding trespass and bad faith. The [62]*62defendant raised two special defenses, claiming that the easement was extinguished due to abandonment or, in the alternative, estoppel. In addition, the defendant, by way of a counterclaim, made an allegation of adverse possession.

The trial court concluded that the language contained in the habendum clause of the deed conveying the plaintiff title to lot 316 was sufficient to include the well rights under the well agreement, and that the plaintiffs nonuse of the well was insufficient to establish abandonment by the plaintiff of his rights under the agreement. The trial court further concluded that the release of the easement was invalid in that King signed it subsequent to his conveyance of lot 316 to the plaintiff, and due to the lack of witnesses or an acknowledgment of King’s signature. The court also concluded that the defendant had presented insufficient evidence to support her special defense of estoppel and her counterclaim alleging adverse possession. Accordingly, the trial court rendered judgment for the plaintiff on both his complaint and on the defendant’s counterclaim. The court ordered the defendant to restore the well by removing the sand placed therein and to allow the plaintiff unimpeded access to the well, and issued a permanent injunction restraining the defendant from interfering with the plaintiff’s right to use the well. The court also ordered that maintenance of the well was to be in accordance with the terms and conditions of the well agreement.2

[63]*63The defendant claims that the trial court erred (1) in concluding that an easement appurtenant existed in favor of lot 316 at the time the plaintiff purchased that property, (2) in concluding that well rights passed to the plaintiff under the habendum clause in his deed, (3) in concluding that the easement was not abandoned, and (4) in ordering the defendant to restore and maintain the well.

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Bluebook (online)
546 A.2d 937, 16 Conn. App. 58, 1988 Conn. App. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenny-v-dwyer-connappct-1988.