[WSBARP] Common Well

[swhite8893 at aol.com]

David,
     When the first of the two properties were conveyed back out by the
common owner, was the deed together with or subject to the well agreement.
If so, then I think as to the first argument, you are clearly foreclosed.
Even if you had some argument, I would think the neighbors deed could be
subject to reformation.
     As a practical matter, I don't think the first approach is going to
sit well with a court and hurts the credibility of your position. A court
will see that everyone expected the property to be served by the well and
will likely find a way to get there.
     On the other hand, your second concern regarding breach has the
neighbor being the bad guy and will engender less sympathy with the court.
I think the more letters you have in your file trying to be the nice guy,
which efforts were rebuffed by the neighbor, the more attractive your
client's position is to the court. You have an opportunity now, prior to
suit, to create a record. Give the neighbor every opportunity to show his
true colors. But remember, if a court sees your client as being 20% the
bad guy and the neighbor 80%, your client is still a bad guy. Take the
high road. It requires real patience from the client but pays off. 
     In a case I had years ago, Fawn Lake v. Abers, I must have had 15
letters in my file trying to get the then pro se to be reasonable. Those
letters ended up in the record and I have little doubt influenced the
trial court and Court of Appeals. 
     Good luck.
 
Steve
 
Stephen Whitehouse
Whitehouse & Nichols, LLP
Attorneys at Law
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com
 
 
-----Original Message-----
From: David Faber <david at faberfeinson.com>
To: wsbarp <wsbarp at lists.wsbarppt.com>
Sent: Wed, May 7, 2014 1:56 pm
Subject: [WSBARP] Common Well


WSBARP,

A potential client has approached me about an ongoing dispute with his
neighbor over a water well located on the potential client's property
serving both properties. A contract for the operation of the well is
recorded with the county, but the chain of title from the two individual
owners who signed the original agreement to the current property owners
passed through a single individual for a period of about four years.

My initial thought is that the contract has automatically become void
because, for a time, both parties to the contract were the same person,
which conflicts with the common law rule against contracting with oneself.
Am I correct that this would also be a reasonable argument to make with
regard to any sort of easement/covenant, if what I am looking at could
properly be called by either name (I'm not sure how to classify this
arrangement because it is unlike anything I am accustomed to seeing in my
[very] young real property practice)?

In the alternative to my void contract theory, my prospective client is
complaining that the neighbor has continuously breached the contract by
failing to pay for their contractual share of the well maintenance and by
negligently allowing conditions to persist that damage the well. Again, my
initial thoughts go to contract law, and material breach. My gut reaction
is to seek an injunction against the neighbor to cease using the well and
a court order terminating the contract. Because this issue concerns real
property, however, I can imagine that additional rules are probably in
play about which I am unaware at this point in time. Any thoughts? What
might limit my client's ability to terminate this contract because it
concerns property rights?

If the contract is void or has been materially breached and nothing bars
having the contract thrown out, should I then look at filing a quiet title
action to eject the neighbor from my prospective client's property
(provided the statutory qualifications for a prescriptive easement have
not been met, if indeed a prescriptive easement might be what I am looking
at here)?


I have searched for case law on point but have not seen anything directly
relevant, at least from the way I have been approaching the matter. Any
advice, pearls of wisdom, or on-point cases would be much appreciated.

Best,
David J. Faber
Faber Feinson PLLC
210 Polk st., ste. 4B
Port Townsend, WA 98368
(360) 379-4110

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