On June 07, 2018 a
Motion-Secondary
was filed
involving a dispute between
Kenneth Miller,
and
David Strothers,
Eric Bevard,
Gretchen Bevard,
for Real Property - Other (Declaratory Judgment/Ease)
in the District Court of Jefferson County.
Preview
FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
AFFIDAVIT
Plaintiff,
Index No. EF2018-00001369
v. RJ1 No. 22-19-0290
ERIC BEVARD, GRETCHEN BEVARD, and
DAVID STROTHERS,
Defendants.
STATE OF MARYLAND )
) ss.:
COUNTY OF HOWARD )
David Strothers,being duly swom, deposes and says:
1. I am one of thenamed Defendants in thisaction.
2. PlaintiffKenneth Miller claims thatI have prevented him from having access toan
repairing"
easement forpurposes of "maintaining and thewater pump forhis property.
"A"
3. Attached as Exhibit are threephotographs of thewater pump structurewhich
Plaintiffclaims has been "used continuously forthe benefitof theproperty toprovide water for
decades."
See Kenneth Miller'sAffidavit at paragraph8.
4. To my knowledge, the Millersceased using the waterpump and water lineshortly
aftermy immediate predecessor Bernie
in title, Harvey, purchased the propertyin 1996.
5. Instead,the Millersdrilleda welljustabout the time thatthey stopped using the
water pump.
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FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020
6. The attached photographs (Exhibit"A"), coupled with the factthatthe Millersdrilled
a wellfora permanent solution totheirwater issueover twenty years ago,present evidence of
abandonment of,and the intentto abandon, thepump system from the lake.
7. Even ifthepump system was notabandoned, the surveyattached to theComplaint, a
copy of which is attachedto thisAffidavitas Exhibit"B", clearlyshows that,as ofAugust 1996, the
locationof thewater lineto theirproperty, ifitis tobe usedat all,
must be moved.
8. Upon information and belief,the locationof a waterlineeasement may be
reasonably moved by the servientland owner ifitdoes not impose a greatburden upon the
dominant estate. Accordingly, ifMr. Miller isto reconstructhispump house and use itforthe
water supply to hisnon-waterfront property,he is required,
as outlinedat paragraph 7 ofhis
Affidavit,toplace the line"along the side
easterly of the above described premises to saidMiller
0.155 acre parcel,
providing thatthe service to theground willbe returned to its
originalcondition
work."
aftercompletion of any excavation This was and is a reasonablerequirement. I am not
aware that Mr. Millerintends to do this.
issue"
9. I respectfullysubmit thatthis"new over thewater line is nothingmore thanan
attempttoobtain ongoing access tomy stepsto thewater, designed to furtherPlaintiff's
claim that
"recreation," "sale"
he enjoyssome righttouse my waterfront forhis even though therewas a of
the propertyby Ms. Roeschlaub to Bernie Harvey, and the verysurvey which Plaintiffattachedto
"removed"
hisCGaip!âint (Exhibit"B") makes clearthatthe recreationarea was in 1996.
WHEREFORE, your deponent respectfullyrequests an Order and Judgment denying the
instant
application forpreliminary injunctivereliefwith allissuesto abide thetrialwhich is
2
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FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020
currentlyscheduled tocommence on November 2, 2020.
D THERS
Sworn to before me this/ 7 day
of gust,2 .
Notary Public
DAVID A. MARKS
Notary Public State ofMaryland
Expires 4/ /2
My Commission
3
3 of 3
Document Filed Date
August 19, 2020
Case Filing Date
June 07, 2018
Category
Real Property - Other (Declaratory Judgment/Ease)
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Preview
FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, AFFIDAVIT Plaintiff, Index No. EF2018-00001369 v. RJ1 No. 22-19-0290 ERIC BEVARD, GRETCHEN BEVARD, and DAVID STROTHERS, Defendants. STATE OF MARYLAND ) ) ss.: COUNTY OF HOWARD ) David Strothers,being duly swom, deposes and says: 1. I am one of thenamed Defendants in thisaction. 2. PlaintiffKenneth Miller claims thatI have prevented him from having access toan repairing" easement forpurposes of "maintaining and thewater pump forhis property. "A" 3. Attached as Exhibit are threephotographs of thewater pump structurewhich Plaintiffclaims has been "used continuously forthe benefitof theproperty toprovide water for decades." See Kenneth Miller'sAffidavit at paragraph8. 4. To my knowledge, the Millersceased using the waterpump and water lineshortly aftermy immediate predecessor Bernie in title, Harvey, purchased the propertyin 1996. 5. Instead,the Millersdrilleda welljustabout the time thatthey stopped using the water pump. 1 of 3 FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020 6. The attached photographs (Exhibit"A"), coupled with the factthatthe Millersdrilled a wellfora permanent solution totheirwater issueover twenty years ago,present evidence of abandonment of,and the intentto abandon, thepump system from the lake. 7. Even ifthepump system was notabandoned, the surveyattached to theComplaint, a copy of which is attachedto thisAffidavitas Exhibit"B", clearlyshows that,as ofAugust 1996, the locationof thewater lineto theirproperty, ifitis tobe usedat all, must be moved. 8. Upon information and belief,the locationof a waterlineeasement may be reasonably moved by the servientland owner ifitdoes not impose a greatburden upon the dominant estate. Accordingly, ifMr. Miller isto reconstructhispump house and use itforthe water supply to hisnon-waterfront property,he is required, as outlinedat paragraph 7 ofhis Affidavit,toplace the line"along the side easterly of the above described premises to saidMiller 0.155 acre parcel, providing thatthe service to theground willbe returned to its originalcondition work." aftercompletion of any excavation This was and is a reasonablerequirement. I am not aware that Mr. Millerintends to do this. issue" 9. I respectfullysubmit thatthis"new over thewater line is nothingmore thanan attempttoobtain ongoing access tomy stepsto thewater, designed to furtherPlaintiff's claim that "recreation," "sale" he enjoyssome righttouse my waterfront forhis even though therewas a of the propertyby Ms. Roeschlaub to Bernie Harvey, and the verysurvey which Plaintiffattachedto "removed" hisCGaip!âint (Exhibit"B") makes clearthatthe recreationarea was in 1996. WHEREFORE, your deponent respectfullyrequests an Order and Judgment denying the instant application forpreliminary injunctivereliefwith allissuesto abide thetrialwhich is 2 2 of 3 FILED: JEFFERSON COUNTY CLERK 08/19/2020 01:16 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 08/19/2020 currentlyscheduled tocommence on November 2, 2020. D THERS Sworn to before me this/ 7 day of gust,2 . Notary Public DAVID A. MARKS Notary Public State ofMaryland Expires 4/ /2 My Commission 3 3 of 3