Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2019-0553

October 30, 2020

Reversed and remanded


  • Whether the trial court correctly found that a deed’s language relating to an easement for a well was ambiguous.
  • Whether the trial court properly applied the rule of reason in directing the defendant to take steps to develop another water source.


Plaintiff petitioned for a declaratory judgment and injunctive relief, asserting that the defendant’s temporary easement to maintain a well on the plaintiff’s property required the defendants to develop their own water source. The trail court’s order on cross-motions for summary judgment directed the defendants to investigate the cost and feasibility developing a new well on their own property, and if possible, to install such a well within three years.

The relevant deed language granted the defendants a “temporary easement … until such a time as the grantees shall have another source of water available.”  In interpreting this language, the trial court found that the word “temporary” was ambiguous, and cited the rule of reason in ordering the defendants investigate and, unless unreasonable, construct a new well on their own property.

The Court found the deed language to be unambiguous, imposing no duty on the defendant to obtain another water source. Based on the words “until such time,” the Court concluded that the deed created a determinable easement, which terminates only upon the occurrence of a stated event. The Court noted that if the stated event does not occur, the easement could potentially last forever.

The plaintiffs argued that not withstanding the deed’s language, the rule of reason still required the defendant to develop an independent water supply.  The Court held that in the first instance, as a rule of interpretation, the rule of reason was inapplicable given its findings. The Court further noted that the plaintiffs had not presented evidence that the easement was overburdened, therefore the rule of reason could not be applied to determine whether a particular use of the easement would be unreasonably burdensome.

The Court concluded that the trial court erred in granting the plaintiffs’ motion for summary judgment, reversed that order, and remanded the case.


Shaheen & Gordon, P.A., of Concord (Karyn P. Forbes and Alexander W. Campbell on the brief, and Ms. Forbes orally), for the plaintiffs. Cleveland, Waters and Bass, P.A., of Concord (Timothy E. Britain and Jeffrey C. Christensen on the brief, and Mr. Christensen orally), for the defendants.