Opinion
No. 3969
Decided January 2, 1951
The fact that the defendant without right used the plaintiff's land, as a passageway to a lake for recreational purposes, did not terminate the defendant's easement to use, repair and maintain pipes and a pump house on such land for a water supply. So also, the use of other water supplies by the defendant for a period of four years and the failure to use the water pipes and pump house for the purpose for which they were granted during that period are not such clear, unequivocal and decisive acts as to constitute abandonment.
BILL IN EQUITY, to determine the rights of the defendants in and over plaintiff's land with respect to a right of way to Lake Paugus for recreational purposes and a right to use, repair and maintain pipes and a pump house near Lake Paugus for a water supply. Trial by the Court (Leahy, J.) and a decree that the defendants had no right of way to the lake for recreational purposes and that the right to the pump house and water supply had been abandoned. Defendants' exceptions to the decree were reserved and transferred by the court.
The findings of the Court relative to the pump house and water rights are as follows: "The deed to the petitioner contained a reservation which was also set forth in the deed from Lillian Carrol to Louis Cushing, predecessor in title to the petitioner. This reservation reads as follows: `Reserving and excepting from the above described premises a water pump in the small building on the shore of said lake, and water pipes to said pump from the Hill Crest buildings, . . . so called with the fight and privilege to enter said premises for the purpose of repairing or laying pipes to said pump house, doing no unnecessary damage.' The petitioner claims petitionee, Ruby Carrier by her acts has abandoned the easement granted. The court is considering the question raised with respect to the intention and purpose of the easement and its present use by the petitionee. The court finds that the intent and purpose of the granted easement was to furnish a source of water to the so-called Hillcrest buildings with the right of entry limited to maintenance, repair and relaying of pipes and maintenance of the pump. Four years ago, or shortly after petitionee, Carrier, purchased Hillcrest she removed the pump and electric motor. The petitionee now obtains water from the Weirs and from a well on her premises. She no longer seeks water from the source on land of the petitioner and to all intents and purposes has abandoned that source of supply. No very sincere effort was made by petitionee in asserting the need of the pump house as a source of supply, but merely that it should remain there and she should have the right to enter it at any time. The court finds her desire was to have the use of the house as a bath house for herself, her children and her paying guests in conjunction with the wharf she had erected. In reviewing the law concerning situations similar to this one it appears that the purpose for which the easement was granted, its present need, and acts of the easement holder are all to be considered on the question of abandonment. Having given full consideration to these elements the court finds as a fact that an actual abandonment has been effected."
Morris D. Stein (by brief and orally), for the plaintiff.
Bernard I. Snierson and Thomas J. McIntyre (Mr. McIntyre orally), for the defendants.
It is understood from the oral arguments that the defendants do not seriously press their exception to that part of the decree which determines that the defendants have no right of way over plaintiff's land to the lake for recreational purposes. Therefore it is not necessary to detail the evidence supporting the decree and it is sufficient to say that the decree of the Court relating to the right of way is clearly correct.
The mere non-user of an easement, however acquired, does not result in its loss or destruction even if continued for a long period of time. New England Box Co. v. Wood, 81 N.H. 124; Howard v. Britton, 67 N.H. 484. The holder of an easement does not forfeit a part of it because he has no present need for it or because he is unlikely to exercise the whole of it. Wheeler v. Wilder, 61 N.H. 2, 8. See State v. 4.7 Acres of Land, 95 N.H. 291, 293, 296. Although the defendants were in error in assuming and acting as though they had a right of way to the lake for recreational purposes, this did not affect their easement to the water pipes and the pump house. One who uses an easement to which he has no right does not terminate another easement to which legal right. Les v. Alibozek, 269 Mass. 153. While the defendants had no right to convert their easement of water supply into right of way for recreational purposes (Noyes v. Hemphill, 58 N.H. 536), this did not constitute an abandonment of the water supply easement.
Rights in real estate are not presumed to be lost by abandonment by failure to use them for a period of a few years. Great Falls Co. v. Worster, 15 N.H. 412, 447, 456; Pickard v. Bailey, 26 N.H. 152, 165; Jones v. Company, 31 N.H. 381, 385. See Coulombe v. Gross, 84 N.H. 212, 215. The use of other water supplies by the defendants for a period of four years and the failure to use the water pipes and pump house for the purpose for which they were granted during that four year period, are not such clear, unequivocal and decisive acts as to constitute abandonment. 3 Tiffany, Real Property (3rd ed.) s. 825; Albano v. Puopolo, 309 Mass. 501; Adams v. Hodgkins, 109 Me. 361; Byard v. Hoelscher, 112 Conn. 5; Nelson v. Bacon, 113 Vt. 161.
The first paragraph of the decree relating to the right of way and the wharf is affirmed; the second paragraph relating to the water pipes and the pump house is set aside.
Exceptions overruled in part and sustained in part.
All concurred.