OTTO F. HAER, ELIZABETH C. HAER vs. ARTHUR KLEINWALD, ETHEL R. KLEINWALD

The plaintiffs seek a declaratory judgment as to the interpretation and effect of covenants and restrictions in the plaintiffs' and defendants' deeds and damages for breach of said covenants.

A hearing was held on July 25, 1977 in Pittsfield, Berkshire County, seven exhibits were introduced, which are incorporated herein for the purpose of any appeal, and three witnesses testified. The plaintiffs' brief was received by the Court on December 9, 1977, the defendants' on December 29, 1977 and the plaintiffs' reply brief on January 17, 1978.

Both plaintiffs and defendants acquired title to their parcels of land in Manitauk Heights, Stockbridge, Massachusetts from a common grantor, James G. Stevens.

The plaintiffs acquired title first by a deed (plaintiffs' Exhibit No. 1) dated September 27, 1962, recorded in the Berkshire Middle District Registry of Deeds, Book 751., page 170 & c, from James G. and Theresa T. Stevens which conveyed lot 6, Manitauk Heights, to them. This deed contains the following provisions material to this action.

"5. Until such time as water shall be reasonably available to the premises from a municipal water supply, the Grantees shall have the right, in common with the Grantors, their heirs and assigns, and future Grantees, their heirs and assigns, to take water from existing facilities consisting of a well and two - two thousand gallon tanks located on other land of the Grantors situate westerly of Lot No. 7 on said plan, and from any facilities hereinafter erected, said water to be taken from a main to be laid by the Grantors; cost of attachment from main to the dwelling to be at the Grantees cost and expense.

The Grantees will pay the Grantors a fee of Thirty-six ($36.00) Dollars a year for the water used; the said fee shall be open to adjustment at the end of each calendar year. If the parties are unable to agree as to what the fee shall be, the matter shall be submitted to three arbiters, one chosen by the Grantees, one by the Grantors, and the third by the two so chosen. The decision of the arbiters shall be final.

Water shall be provided by the Grantors for normal household purposes, but such purposes shall not include fountains, pools, or watering the premises without the consent of the Grantors.

Also granting the right and easement, in common with others, to enter upon land of the Grantors as shown on said plan, to maintain, repair and replace when necessary the water main, and also the right to operate, maintain, repair, and replace existing equipment and main, in the event that the Grantors shall fail, after reasonable notice, to properly operate and maintain said equipment and main, after due tender to the Grantors of the annual charge for said water has been made. This right and easement shall expire when water from a municipal water supply shall become reasonably available. Subject to similar rights granted by us to Donald T. Oakes et ux to enter upon Lot Nos. 6 and 7 for the necessary maintenance, repair and replacement of the existing water main all as more particularly described in our deed to them recorded with Berkshire Middle District Registry of Deeds in Book 725, Page 427 ....

The Grantors reserve the right and easement for themselves, their heirs, successors and assigns and other Grantees to enter upon Lots Nos. 6 and 7 on said plan to repair, maintain, and replace existing water main. This right and easement shall expire when water from a municipal water supply shall become reasonably available."

Plaintiffs are also the owners of Lot 7, Manitauk Heights.

The defendants acquired title to various other parcels in the Manitauk Heights subdivision by a deed (plaintiffs' Exhibit No. 2) dated November 23, 1971, recorded in the Berkshire Middle District Registry of Deeds, Book 918, page 267 & c from James G. Stevens, his wife Theresa having died. The defendants’ deed contains the following material provision:

"BOTH OF THE ABOVE-DESCRIBED parcels of land are conveyed subject to any other rights or easements of record and also reserving any rights to the grantees herein which may be in force and are described in prior deeds which I conveyed and which are recorded in the Berkshire Middle District Registry of Deeds in Book 684, Page 418 & c; Book 725, Page 427 & c; Book 751, Page 170 & c, and 172 & c; Book 779, 30 & c; Book 862, Page 107 & c; Book 863, Page 335 & c." (Emphasis supplied)

As the plaintiffs' deed is specifically referred to in the quoted portion above, the defendants took title subject to whatever rights or easements the plaintiffs had. What these are depends upon whether or not these rights or easements ran with the land.

The water system consists of a well with an electric pump attached thereto located on the defendants' property westerly of plaintiffs' Lot 7 and water lines running across plaintiff' Lots 7 and 6 to Lots 5, 4, 3, 2 and 1 on the plan to the users. Since the defendants acquired the property on which the well is located, the plaintiffs have paid for certain repairs, for which they seek reimbursement. This dispute between the parties centers on the extent, if any, of the defendants' duty to repair the water system.

The first question to be resolved is a construction of the covenants in plaintiffs' deed.

The Court believes that the provisions in this deed relating to the water system are unambiguous and therefore interprets the deed solely on the written instrument itself. But, as will be subsequently discussed, even if the deed were to be deemed ambiguous and resort made to extrinsic matter in order to determine the intention of the parties to the deed, the Court's interpretation would not change.

The material provisions of the deed provide that the grantees are to pay a certain fee and the grantors are to provide water from certain facilities located on the grantor's land. The deed states: "Water shall be provided by the Grantors for normal household purposes...." In order for the grantors to be able to provide said water in accordance with their covenant, they must maintain the facilities through which the water is obtained. If the facilities described in the deed cease to properly deliver water through no fault of the grantees, then water is not being provided in accordance with the grantors' covenant. Hence the phrase quoted above imposes a duty upon the grantors to repair and maintain the water system.

The defendants dispute this interpretation pointing to the following paragraph of the deed as an indication the grantors did not intend to maintain the system.

"Also granting the right and easement, in common with others, to enter upon land of the Grantors as shown on said plan, to maintain, repair and replace when necessary the water main, and also the right to operate, maintain, repair and replace existing equipment and main, in the event that the Grantors shall fail, after reasonable notice, to properly operate and maintain said equipment and main, after due tender to the Grantors of the annual charge for said water has been made."

However, the Court construes this language as merely giving the grantees a right, upon the performance of certain conditions, to maintain the system if the grantors fail after reasonable notice to do so. The Court does not construe this as imposing a duty upon the grantees to make repairs or as relieving in any way a duty of the grantors to do so. The Court thus finds that the grantors in plaintiffs' deed had the duty to provide water.

Even if the Court were to consider the testimony introduced relating the practical construction of the original parties to the deed, as evidenced by their acts in relation to the water system, the result would be the same. Mr. Haer testified that the arrangement prior to the defendants' purchase of the land in the event of a malfunction in the water system, which arrangement was not known to the plaintiffs at that time, was to call the plumber, Mr. Philling, who would fix the matter and bill Mr. Stevens. (Tr. 114-115). There is also evidence that the plaintiffs did some repairs on their own prior to 1971 (Tr. 93) and that the users of the water system purchased and paid for a $14 electric pump in the late 1960's. (Tr. 104). The users of the pump jointly shared the cost of electricity to run the pump (Defendants' Exhibit No. 2-5). However, there does not appear to have been any major problems with the water system prior to the defendants' purchase of the land. The Court finds this practical construction inconclusive to show an intention to have the grantees maintain the water system.

The next question is whether the covenant runs with the land. The requirements for a covenant to run with the land are privity of estate and the intention of the parties to have the covenant run with the land rather than be personal in nature. The Court finds there was privity here as there was a common grantor to both plaintiffs and defendants and that it was their intention to provide water for the grantees' land.

Consequently, the Court finds that the covenant does run with the land and that the defendants have a duty to maintain and repair the water system.

Having thus found, the Court must next consider whether the defendants' duty to repair extends to the specific repairs for which the plaintiffs seek reimbursement. These repairs for which reimbursement is sought are four in number.

The first major problem with the water system occurred in October, 1972 when a water pipe running across a portion of the plaintiffs' premises to a neighbor's sprung a leak, saturating a portion of the plaintiffs' land. (Tr. 119, 121). This leak did not interfere with plaintiffs' water supply though apparently a neighbor was without water for three days while plaintiff, Mrs. Haer, arranged to have the leak repaired. (Tr. 21, 81-83). Mrs. Haer testified she incurred $236.85 in expenses to repair this leak. (Tr. 22-23).

The defendants objected to the introduction of evidence relating to this specific break on the ground it was the subject of an action commenced in the District Court of Lee which was dismissed by that court for failure to prosecute. Plaintiffs' counsel agreed the $236.85 bill was the subject of the District Court action (Tr. 25) but argued that the dismissal was without prejudice. After trial, the defendants submitted to the Court a certified Certificate of the District Court Judgment of Dismissal, which certificate is incorporated for reference herein. As a dismissal for failure to prosecute is without prejudice under the provisions of Rule 41 (b) (i) Mass. R. Civ. P., the Court finds that the first breakage in which the plaintiffs incurred $236.85 expenses may be considered now.

The Court finds that this pipe was an integral part of the proper functioning of the water system and that the defendants had a duty to repair it. The defendants argue however that they were excused from repairing it because the plaintiffs had not tendered the yearly water charge and because the parties had entered into an implied adjustment of their duties under the covenant. These arguments will be considered subsequently.

The second problem with the water system occurred in early 1976 when the existing water pump was replaced with a new one at a cost of approximately $300, of which the plaintiffs paid $100. The remaining cost was apparently paid by the other two users of the water system. (Tr. 32). As a water pump is necessary to the proper operation of the water system, the defendants, subject to the defenses to be discussed, were responsible for it.

The third problem of which the plaintiffs complain occurred in June, 1976. During a storm some trees located across the street from plaintiffs' property fell, striking the electric wires which furnish electricity to the water pump and landing so as to block the entrance to the plaintiffs' driveway. The plaintiffs were without water for a few hours until the electric company fixed the wires. The plaintiffs expended $100.00 to have the trees removed from their driveway and $22.00 for an unspecified purpose. (Tr. 27-29). The Court finds the plaintiffs did not expend any money to repair the water system on this occasion as the electric company fixed the wires. The defendants' duty to maintain the water system does not encompass the removal of trees blocking plaintiffs' driveway.

The fourth incident again involved a tree striking the electric wires to the pump and landing on plaintiffs' front lawn. Again it appears from Mrs. Haer's [Note 1] testimony and the Court so finds that the expenses incurred by the plaintiffs related to the removal of the tree or part thereof from plaintiffs' property and not to the repair of the water system.

Thus, the defendants were responsible at most for the repairs made in October of 1972 and early 1976 and the Court proceeds now to consider the defendants' defenses to the plaintiffs' claims for damages incurred thereby. The defendants argue that there has been an implied adjustment whereby the plaintiffs are no longer required to pay the annual water charge and the defendants are not required to make repairs to the water system. The facts as found by the Court relating to this modification of the covenant follow.

In October, 1972 the defendants came to plaintiffs' property while the plaintiffs were repairing a leak. It was then that the plaintiffs learned that the defendants were the new owners of the property upon which the water facilities were located. The plaintiffs asked the defendants to repair the leak. While the parties dispute whether the defendants agreed to pay, the Court finds the defendants did not make an unqualified offer to pay the cost of repair; rather, they asked the plaintiffs to inquire into the cost and to then inform the defendants. Mrs. Haer does not remember whether she ever sent the defendants a bill for this repair, (Tr. 18); nor did she notify the defendants of any other problem with the water system. (Tr. 85, 149).

A short time after this visit, the defendants wrote the plaintiffs a letter stating that the defendants did not intend to collect the $36.00 yearly payment and therefore the defendants did not have the responsibility for maintaining the system (Tr. 150). Clearly this letter could not modify the covenant to repairs found in the deeds. It is possible to construe this letter to be an offer from the defendants to the plaintiffs to modify the arrangement set forth in the deed relative to the water system. The plaintiffs received this offer either in a letter directly from the defendants or from their attorney (Tr. 62, 86). However, the plaintiffs were not required to make an answer and they did not. Nor does the Court find that they did in fact accept it by their conduct.

Under the terms of the deed, the plaintiffs had a duty to pay $36.00 per year for the use of the water. This the plaintiffs did not do. The plaintiffs had paid Mr. Stevens the annual fee by checks dated May 21, 1966, June 5, 1967, September 28, 1968, September 25, 1969 (Tr. 13-14). In 1970 the plaintiffs sent a check to Mr. Stevens which was returned uncashed with a notation the occupant had moved and left no forwarding address. Thereafter, the p1aintiffs made no further annual water payments. They made no further payment after meeting the defendants on the premises in 1972 and after receiving the letter from the defendants that they were not going to collect the $36.00 yearly payment. However, after the receipt of the defendants' letter, which the Court construes to be a repudiation of the contract, the plaintiffs were entitled to withhold future water payments; they were not excused from the payments owed through September, 1972.

The plaintiffs seek to justify their failure to pay on the ground they did not know the defendants’ address or how to reach them. (Tr. 85). In light of the arrangement reached at the October, 1972 meeting for the plaintiffs to inform the defendants of the cost of repairing the pipe, it is unlikely the plaintiffs were not then informed of the defendants' address. Mrs. Haer never professed lack of knowledge of the defendants' address in response to the question whether she sent the defendants a bill for this repair, but only so argues as an excuse for not paying the water bill. In any event, Mrs. Haer testified she was corresponding with the defendants' attorney at about the time of the repair. (Tr. 17). Thus, the Court finds that after October, 1972 the plaintiffs were able to reach the defendants either directly or through their attorney.

In any event, the plaintiffs were under a duty to pay the $36.00 per year just as the defendants were under a duty to keep the water system in repair. The plaintiffs now owe the sum of $36.00 for the years, 1971, 1972, 1973, 1974, 1975, 1976, and 1977 to the defendants, a total of $252.00. In addition, they did not pay for the year 1970 which the Court finds was due to defendants' predecessor in title, the Stevens.

Thus, recapitulating, the plaintiffs owe to the defendants the sum of $252.00. As against this, the defendants owe to the plaintiffs the sum of $236.85 for the 1972 repairs and the sum of $100.00 for the 1976 repairs or a total of $336.85. Set off one against the other the plaintiffs are due the sum of $84.85.

The plaintiffs submitted 38 requests for findings of fact. The Court has agreed with the plaintiffs' requests numbered 1, 2, 3, 4, 5, 8, 12, 13, l5, 16, 18, 27, 29, 31, 34, 35 and 38 and has disagreed with those numbered 6, 7, 9, 11, 19, 21, 25, 26, 28, 30, 32, 33 and has incorporated them herein. The Court is unable to make specific findings as requested in numbers 10, 14, 17, 20, 22, 23, 24, 36, and 37 as the requests are not complete or are misleading.

Judgment accordingly.