United States: Delaware Chancery Court Tackles Fight Over Decades Old Water And Sewer Pipes

In Kunhs v. Hiler, (decided March 31, 2014), a dispute over decades-old underground water and sewer lines (laterals) brought neighbors in Rehoboth Beach, Delaware to Chancery Court. The residential properties in question are adjoining parcels that are part of a residential community that was first developed in the 1920s and 30s. Mr. and Mrs. Kuhns (Kuhn) purchased their property in 2008. The Kuhns property abuts and property owned by Bruce Hiler and Elaine Cacheris (Hiler) to the north. The Hiler property was purchased in 2002. Unbeknownst to both Kuhn and Hiler, the water and sewer lines that service the Kuhn property have been in existence from the 1920s or 30s and run along the eastern boundary of the Hiler property and are located under the setback area (an area that Hiler is not permitted to build upon).

Upon this discovery, the parties did communicate in order to discuss the situation but were unable to come to any resolution. Both properties are located within the City limits of the City of Rehoboth Beach. The City took the position that, because the lines existed for a period of more than 20 years, an implied or prescriptive easement across the Hiler property exists which benefits the Kuhn property. Hiler disagreed with this position and litigation ensued.

Kuhn Arguments

The Kuhns filed an action to Quiet Title in Chancery Court and contended that they are entitled to a permanent utility easement. The Court noted that, in order to establish a prescriptive easement, the Kuhns must show that the use of the disputed area was (a) open and notorious; (b) exclusive; (c) continuous; and (d) adverse to the rights of others for an uninterrupted 20 year period. The Court ruled that as the water and sewer lines were buried and unnoticed by anyone for more than 70 years, the use was not open and notorious and, therefore, a prescriptive easement could not be established. The Court similarly ruled that, in order to establish an implied easement arising from a quasi-easement, the moving party must show, among other things, that the need for the quasi-easement was apparent at the time that the properties, which had previously been owned by one party, were separated. This separation occurred in the 1920s or 1930s. Again, the Court notes that as the lines were buried and it could not be specifically established when the water and sewer lines were actually installed and there cannot be a finding that the need for the quasi-easement was apparent at the time, that the properties were separated. Accordingly, the Court ruled against the Kuhns by deciding that neither an easement by prescription or implication exists.

Hiler Arguments

The Hilers requested a permanent mandatory injunction and sought the removal of the laterals from their property. In order to prevail, Hiler was required to show, among other things, irreparable harm in the event the injunction is not granted and that the irreparable harm to be suffered outweighs the harm to the Kuhns if the injunction is granted. The Court, having found that no easement exists, ruled that the invasion of the Hiler property is an irreparable harm. However, the Court further held that this irreparable harm suffered by Hiler does not outweigh the harm which would be inflicted upon the Kuhns if the injunction were to be granted. The bottom line was no injunction. The Court did note that, even though it was not ordering a permanent injunction, it found, absent a statute or local law, nothing which would prevent the Hilers from themselves removing the laterals.

Hiler also argued that the situation constituted a trespass by the Kuhns. The Court did find that the location of the laterals did technically constitute trespass; however, it only awarded $3.00 in monetary damages as this trespass had gone unnoticed from the 1920s or 30s until approximately 2009. Accordingly, there was no real loss suffered by Hiler.

Finally, the Kuhns requested that the City of Rehoboth should be required to provide an alternative means of water and sewer service to the Kuhns. The Court ruled that this was an issue that was not properly before it in this litigation. Accordingly, as the Court concluded, all of the parties to this litigation came away unsatisfied.

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