Gagner v. Kittery Water District

Raymond and Beatrice Gagner (plaintiffs) purchased a parcel of property from Warren’s Realty, Inc. (defendant) in 1969. Warren’s conveyed the property by warranty deed, which did not note any easements on the property. As part of the transaction, the Gagners’ attorney conducted a title search and discovered that several earlier deeds noted an easement in favor of the Kittery Water District (defendant). The deeds referenced a release to the Water District, but the release was not recorded. The deed records showed that the parcel had been part of a larger parcel that was split into two parcels by previous owners. The deed to the other parcel continued to reference the easement, but the prior deed to the Gagners’ parcel did not note the easement. The Gagners’ attorney then asked Warren’s if the parcel was subject to any easement. Warren’s stated that the easement was only on the other parcel. The Gagners’ attorney certified that the parcel was free and clear of all encumbrances. After purchasing the property, the Gagners discovered that a water main owned by the Water District did run under their parcel. The Gagners sued Warren’s for violating the covenants in the warranty deed. Warren’s then sued the Gagners’ attorney for certifying that the parcel was free and clear of all encumbrances. The trial court determined that the Water District did not have a valid easement against the Gagners’ parcel. The Water District appealed.