KIENZLE V. MYERS 853 N.E.2d 1203 (2006) CASE BRIEF

KIENZLE V. MYERS

853 N.E.2d 1203 (2006)

NATURE OF THE CASE: Myers (D) appealed a summary judgment to Kienzle (P) in his quiet title action with respect to the use by D of a sewer pipe on P's property.

FACTS: Duyne and Bauer were friends and neighbors on adjoining property. In 1981, following construction of a public sewer line both Duyne and Bauer were required by law to connect to the public system. For Bauer, a direct connection would mean excavation of her driveway, representing a substantial cost and inconvenience. It was agreed that Bauer would install her sewer through a 96-foot-long trench from her home to Duyne's property, where it would share a 207-foot trench with Van Duyne's connector line to the street. Each party bore her own tap and assessment fees. In 1982, Duyne's daughter and son-in-law, P, moved into her property. In 1987, P acquired the property. In 1989, D acquired the Bauer property. In 2003, P sent a letter to D advising D that P had 'decided to terminate the revocable license' by which D's sewer pipe crossed the P property. On March 26, 2004, P sued D, seeking to quiet title with respect to D's 'encroachment' across P's property, enjoin further trespass and for damages. D claimed an easement, easement by estoppel, or prescriptive easement for the sewer line. P moved for and was granted partial summary judgment. The trial court rejected D's assertion that their use of P's property was by easement. The court awarded P $14,000 for the 'cost of capping the sewer line,' and rejected D's counterclaim. D appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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