Arcidi v. Town of Rye

• Decision Date: 05 April 2004
• Docket Number: No. 2003–238.,2003–238.
• Citation: 150 N.H. 694,846 A.2d 535
• Court: New Hampshire Supreme Court
• Parties: Alfred L. ARCIDI, Jr. v. TOWN OF RYE.

150 N.H. 694

846 A.2d 535

Alfred L. ARCIDI, Jr.

v.TOWN OF RYE.

No. 2003–238.

Supreme Court of New Hampshire.

Argued: Feb. 5, 2004.

Opinion Issued: April 5, 2004.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (E. Tupper Kinder on the brief and orally), for the plaintiff.

Michael L. Donovan, of Concord, by brief and orally, for the defendant.

DUGGAN, J.

This case involves a dispute over the defendant Town of Rye's (town) use of an easement over land owned by the plaintiff, Alfred L. Arcidi, Jr. The plaintiff appeals a decision of the Superior Court (Lewis , J.) that the town had the right to use the easement and that the construction and use of a gravel road was within the scope of the easement. The town cross-appeals the court's ruling that the installation and use of a subsurface water line was beyond the scope of the easement. In addition, the town challenges the award of attorney's fees. We affirm in part and reverse in part.

The trial court found the following facts. The plaintiff owns a 1.38–acre parcel of land on Church Road in Rye. Located behind and adjacent to the plaintiff's property is a 14.6–acre parcel of land owned by Valley Properties, Inc. (VPI). VPI's property is the site of the vacant Farragut Hotel. VPI has an easement by deed over the plaintiff's property for "ingress and egress by motor vehicle, foot and otherwise over a strip of land fifty (50) feet in width." The easement was intended to provide secondary access to the Farragut Hotel. The easement runs over the northerly side of the plaintiff's property from Church Road to VPI's property.

In 1990, VPI granted the town a "perpetual pump station easement," which gave the town the right to construct, operate and maintain a sewer pumping station on an 8,703 square-foot piece of the property owned by VPI. The pumping station easement is located behind the plaintiff's property. VPI also granted the town a fifty-foot sewer easement from the plaintiff's northeasterly property line to the pumping station easement. Both the pumping station easement and the sewer easement purported to convey VPI's easement over the plaintiff's property to the town.

In the summer of 1990, the town constructed a gravel access road over the plaintiff's property to the sewer pumping station site. The construction of the access road included clearing trees, ground excavation, filling wetlands, and installing culverts. The road, including the shoulders, is twenty feet wide and located in the middle of the fifty-foot easement. A subsurface water line to serve the sewer pumping station was installed under the road.

Once constructed, the town used the access road for ingress and egress from the pumping station site. This use consisted of the following: (1) regular daily use by the town sewer department to service the pump station equipment; (2) weekly use for maintenance; (3) occasional use by road crews to maintain and plow the area; and (4) occasional use by the police during routine patrols.

Subsequently, the plaintiff filed an inverse condemnation claim alleging that the town's construction and use of the road and subsurface water line was an unconstitutional taking. After a bench trial, the trial court held that: (1) the town has the right to use the easement; (2) the town's construction of the access road was within the scope of the easement; (3) the town's use of the road did not overburden the easement; and (4) the town's installation of the subsurface water line was not within the scope of the easement and, thus, constituted a taking. The trial court awarded damages for the installation of the subsurface water line and attorney's fees. This appeal followed.

The plaintiff argues that the trial court erred in holding that the town did not commit an unconstitutional taking by inverse condemnation in violation of the State and Federal Constitutions. See N.H. CONST. pt. I, art. 12; U.S. CONST. amends. V, XIV. Specifically, the plaintiff argues that the town committed an unconstitutional taking because the town did not have the right to use the easement. The plaintiff further argues that, even if the town had the right to use the easement, the town's use exceeded the scope of the easement and, thus, the town committed an unconstitutional taking. We first address the plaintiff's arguments under our State Constitution, using federal law only as an aid in our analysis. Webster v. Town of Candia, 146 N.H. 430, 438, 778 A.2d 402 (2001).

Inverse condemnation occurs when a governmental body takes property in fact but does not formally exercise the power of eminent domain. Sundell v. Town of New London, 119 N.H. 839, 845, 409 A.2d 1315 (1979). When this occurs, the governmental body has committed an unconstitutional taking and the property owner has a cause of action for compensation. See id. A permanent physical invasion or occupation of land by a governmental actor gives rise to a claim of inverse condemnation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

Here, although the town physically invaded the plaintiff's property to construct and use the access road and subsurface water line, this use does not give rise to a claim for inverse condemnation if the town has the right to use the easement over the plaintiff's property. Whether the town has the right to use the easement is a question of law that we review de novo . See Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986).

In deciding this issue, we must first consider the types of easements involved and the nature of the rights associated with the easements.

An appurtenant easement is a nonpossessory right to the use of another's land. Burcky v. Knowles, 120 N.H. 244, 247, 413 A.2d 585 (1980). It creates two distinct estates—the dominant estate, which is the land that benefits by the use of the easement, and the servient estate, which is the land burdened by the easement. See id. An appurtenant easement is incapable of existence separate and apart from the dominant estate. Id. The benefit of an appurtenant easement "can be used only in conjunction with ownership or occupancy of a particular parcel of land." Restatement (Third) of Property: Servitudes § 1.5 comment a at 31 (2000).

An easement in gross is also a nonpossessory right to the use of another's land, but it is a mere personal interest. Burcky , 120 N.H. at 247, 413 A.2d 585. "There is a servient estate, but no dominant estate," because the easement "benefits its holder whether or not the holder owns or possesses other land." J. Bruce & J. Ely, Jr., The Law of Easements and Licenses in Land § 2:2, at 2–3 (2001); see Burcky, 120 N.H. at 247, 413 A.2d 585. An easement in gross "grants to the holder the right to enter and make use of the property of another for a particular purpose." Warburton v. Va. Beach Fed. Sav. & Loan, 899 P.2d 779, 781 (Utah Ct.App.1995) ; see, e.g. , Town of Kearny v. Municipal San. Landfill Auth., 143 N.J.Super. 449, 363 A.2d 390, 396 (1976) (finding that an agreement to deposit refuse on land was an easement in gross because it permitted a limited use or enjoyment of the burdened estate).

Here, VPI has an easement over the plaintiff's property "for ingress and egress by motor vehicle, foot and otherwise over a strip of land fifty (50) feet in width." The trial court found, and we agree, that this language created an appurtenant easement because "the language creates two distinct tenements in which a dominant estate is benefited by use of an easement on a servient estate ... [and] the language is clear and unambiguous." Burcky, 120 N.H. at 247, 413 A.2d 585.

With regard to the pumping station easement, VPI granted the town a perpetual pump station easement "for the purpose of the construction, operation and maintenance of a sewage pumping station by the Town of Rye." This language created an easement in gross because "[i]t belongs to [the town] independently of [its] ownership or possession of other land." Id.

In this case, the plaintiff relies upon the nonpossessory nature of the town's easement in gross over VPI's property to argue that the town could not obtain the right to use the appurtenant easement over the plaintiff's property because the town does not have a possessory right in the dominant estate. In other words, the plaintiff argues that because the purpose of an appurtenant easement is to "benefit[ ] the owner of the dominant estate ... as the possessor of such estate[,]" Burcky , 120 N.H. at 247, 413 A.2d 585, the appurtenant easement over the plaintiff's property cannot benefit the town's pumping station easement, which is a nonpossessory interest in land.

We agree that, because it is a nonpossessory interest, the pumping station easement cannot serve as the dominant estate to the appurtenant easement over the plaintiff's property. "It is well settled that a dominant tenement's interest in an easement cannot be severed from the land by transferring it to a third party." Cricklewood on the Bellamy Condo. Assoc. v. Cricklewood on the Bellamy Trust, 147 N.H. 733, 737, 805 A.2d 427 (2002). For example, VPI, as the current owner of the dominant estate, could not transfer its interest in the appurtenant easement over the plaintiff's property to the town without transferring title to, or rightful possession of, a portion of the dominant estate. See id. Accordingly, VPI could not convey the easement over the plaintiff's property to the town because the town did not have a possessory interest in VPI's land. Thus, the town did not obtain the right to use the easement when VPI attempted to convey it to the town.

Nevertheless, the fact that the town, because of its status as an easement holder, could not obtain the right to use the appurtenant easement by VPI's conveyance does not end the inquiry. Instead, we must look to the nature of the rights associated with the town's easement arrangement with VPI and the effect of this arrangement on the...