Carl and Jennifer were divorced in 2012. As part of the judgment of divorce, Jennifer was granted possession of their home in Albany and custody of their then three-year-old son, Sam. Carl was awarded broad visitation rights, including one night during the work week, alternate weekends and holidays, and one month during the summer.
Carl took full advantage of every possible opportunity to be with Sam, visiting with him during the week and spending the summer month and many weekends and holidays with Sam at Carl’s house on a lake 20 miles outside of Albany. Carl had purchased the lake house from Owner in 2001 as a vacation home before he was married, and he now lives there permanently while employed as the manager of a local business.
Jennifer, a lawyer, was laid off from her position as an associate in a law firm shortly after the divorce. After unsuccessfully searching for law work for over one year, Jennifer was beginning to face serious financial problems. Unable to afford the family home, Jennifer had to move in with her parents in their small apartment. Jennifer was recently offered a position in a law firm in Rochester, which is a three-hour drive from Carl’s house outside of Albany.
Jennifer has made an application in Supreme Court to modify the divorce judgment to permit her to move with Sam to Rochester so that she can accept the new job offer. She is willing to modify the visitation arrangements by extending Carl’s holiday and summer vacation visitation periods. Carl has opposed the application because it would curtail his ability to see Sam during the week and on many weekends. He insists that Jennifer can earn sufficient income by staying in Albany and working at more than one lower-paying non-legal job. Sam is upset about the move because he loves to spend as much time as possible with his father at the lake and because he will miss all of his new friends at kindergarten.
Carl’s lake house had been part of Owner’s property when Carl bought it in 2001, and Owner retained the adjoining property. The lake house at that time had received its water for many years from its own pump house next to the lake which, according to land records filed with the County Clerk, remained on Owner’s property. The deed of sale to Carl contained no mention of the pump house. Carl has relied on that pump house for his water supply and has maintained it since the time of purchase, although Owner has paid for all of its major repairs. Owner has just informed Carl that he will be removing the pump house to create a beach area at the lake for the private use of Owner’s family. Carl then will have to take out a $10,000 home improvement loan to dig his own well in order to access a water supply for his house.
(1) How should the Court rule on Jennifer’s application to move with
Sam to Rochester?
(2) May Carl lawfully prevent Owner from removing the pump house:
(a) By claiming an implied easement to use the pump house?
(b) By claiming a prescriptive easement to use the pump house?