Blagbrough Family Realty Trust v. A & T Forest Prods., Inc.

• Decision Date: 28 February 2007
• Docket Number: No. 2005–669.,2005–669.
• Citation: Blagbrough Family Realty Trust v. A & T Forest Prods., Inc., 155 N.H. 29, 917 A.2d 1221 (N.H. 2007)
• Parties: BLAGBROUGH FAMILY REALTY TRUST v. A & T FOREST PRODUCTS, INC. and another.
• Court: New Hampshire Supreme Court

155 N.H. 29

917 A.2d 1221

BLAGBROUGH FAMILY REALTY TRUST

v.A & T FOREST PRODUCTS, INC. and another.

No. 2005–669.

Supreme Court of New Hampshire.

Argued: Nov. 8, 2006.

Opinion Issued: Feb. 28, 2007.

Motion for Rehearing Denied April 17, 2007.

Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis, on the brief and orally), for the plaintiff.

Wiggin & Nourie, P.A., of Manchester (Patricia M. Panciocco and Gregory E. Michael, on the brief, and Mr. Michael orally), for defendant A & T Forest Products, Inc.

Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little, on the brief and orally), for defendant Town of Wilton.

DUGGAN, J.

The plaintiff, Blagbrough Family Realty Trust (Blagbrough), and defendant A & T Forest Products (A & T) cross-appeal an opinion and order of the Trial Court (Lynn, C.J.), on two consolidated cases: (1) an appeal from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Wilton (Town) granting a building permit to A & T; and (2) a petition to quiet title. We affirm in part, reverse in part, and remand.

I. Background

Litigation involving the parties and the land here at issue was the subject of two previous opinions of this court. See Blagbrough Family Realty Trust v. Town of Wilton, 153 N.H. 234, 893 A.2d 679 (2006) ; Blagbrough v. Town of Wilton, 145 N.H. 118, 755 A.2d 1141 (2000). Here we recite the facts pertinent to this appeal as found by the trial court.

Blagbrough owns real property located at 293 Burton Highway in Wilton, which is identified on the Town's tax map as Lot A–22. A & T owns an adjoining parcel, identified on the Town's tax map as Lot A–21, and had obtained approval to subdivide it into two lots: Lots A–21–1 and A–21–2. Both Lot A–22 and Lot A–21 are bounded to the north by Old Peterborough Road and were at one time under the common ownership of John and Anne Dimeling. A & T also owns another parcel identified as Lot A–30, which is situated north of Old Peterborough Road.

A & T acquired Lots A–21 and A–30 on February 20, 2001, by warranty deed from heirs of the Dimelings. Blagbrough acquired Lot A–22 from the Dimelings by warranty deed dated September 16, 1963. The deed for the Blagbrough parcel contains a typed paragraph indicating that the conveyance included a canal easement with certain flowage rights therein. However, a line was drawn through the canal easement paragraph and a handwritten notation was inserted. It reads, "Above paragraph deleted—pertinent to land retained by Dimelings." The deed also grants Blagbrough an easement to use and access a well located on land which was, at the time, retained by the Dimelings (now Lot A–21–1). The well provided water for the house on the Blagbrough's parcel, but the trial court found that the well has not been used as a source of drinking water since 1985.

On September 29, 2003, the Town's board of selectmen (the selectmen) voted to authorize a building permit for A & T to construct a single family home on Lot A–30. Blagbrough appealed the selectmen's decision to the ZBA. The ZBA upheld the selectmen's decision and later denied Blagbrough's motion for rehearing. Blagbrough then appealed to the superior court.

Blagbrough also brought a petition to quiet title in superior court, seeking a declaration that it: (1) had acquired a portion of Lot A–21–1 through adverse possession; (2) had certain rights to the canal easement (described above); (3) had acquired a portion of Old Peterborough Road through adverse possession; and (4) was entitled to damages for interference with the well and canal easements that allegedly occurred when A & T removed timber and hauled it across Lot A–21–1. In response to a motion filed by Blagbrough, the ZBA appeal was consolidated with the quiet title petition, and both matters became the subject of a two-day bench trial and a subsequent hearing on damages.

When all was said and done, the trial court ruled that: (1) Blagbrough had acquired a portion of Lot A–21–1 by adverse possession; (2) Blagbrough had certain rights in the canal easement; (3) Blagbrough had not acquired any portion of Old Peterborough Road through adverse possession; (4) the decision of the ZBA was neither unlawful nor unreasonable; (5) A & T was required to replace a portion of the pipe running from the well on Lot A–21 to the Blagbrough property; and (6) A & T was required to repair some damage to the canal. Blagbrough then appealed and A & T cross-appealed, placing these rulings in dispute.

II. Adverse Possession: Lot A–21–1

The trial court found that, according to the pertinent deeds, the boundary between Lots A–22 and A–21–1 is "a straight course running between two granite bounds, one located on the northern side of the Burton Highway and the other located on the southern side of the so-called ‘Old Peterborough Road.’ " Neither side challenges this finding. Accordingly, we assume its correctness and use it as a reference point for our consideration of Blagbrough's adverse possession claim.

The foundation of a small boathouse is slightly to the west of the boundary line. Crediting the testimony of Corinne Blagbrough, Kenton Blagbrough (Corinne Blagbrough's son), and Howard Preston, the trial court found that the Blagbrough family engaged in activities in an area immediately around the boathouse and that these activities were sufficient to satisfy the criteria for adverse possession. However, the trial court also ruled that the extent to which the Blagbroughs engaged in activity on land to the west of the boathouse was unclear and could not satisfy the criteria for adverse possession. It therefore concluded that Blagbrough had acquired title by adverse possession to a portion of Lot A–21–1 which was east (i.e., in the direction of Lot A–22) of the western-most point of the boathouse.

On appeal, Blagbrough argues that the trial court's ruling is inconsistent with the evidence because the evidence demonstrated that Blagbrough acquired title by adverse possession to a significantly broader swath of Lot A–21–1, extending all the way to a stone wall located approximately 150 feet west of the boathouse. A & T cross-appeals, arguing that the evidence does not support a conclusion that Blagbrough acquired title by adverse possession to any portion of Lot A–21–1.

We review a trial court's application of law to facts de novo. Tech–Built 153 v. Va. Surety Co., 153 N.H. 371, 373, 898 A.2d 1007 (2006). We accord deference to a trial court's findings of historical fact, where those findings are supported by evidence in the record. Elwood v. Bolte, 119 N.H. 508, 510, 403 A.2d 869 (1979).

In order to obtain title by adverse possession, the adverse possessor must prove, by a balance of probabilities, twenty years of adverse, continuous, and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim is being made. Flanagan v. Prudhomme, 138 N.H. 561, 571–72, 644 A.2d 51 (1994). In addition, adverse use is trespassory in nature, and the adverse possessor's use of the land must be exclusive. See Kellison v. McIsaac, 131 N.H. 675, 679, 559 A.2d 834 (1989) ; Seward v. Loranger, 130 N.H. 570, 576–77, 547 A.2d 207 (1988). The success or failure of a party claiming adverse possession is not determined by the subjective intent or the motives of the adverse possessor. Kellison, 131 N.H. at 680, 559 A.2d 834. Rather the acts of the adverse possessor's entry onto and possession of the land should, regardless of the basis of the occupancy, alert the true owner of the cause of action. Id. In evaluating the merits of an adverse possession claim, courts are to construe "[e]vidence of adverse possession of land ... strictly." Bellows v. Jewell, 60 N.H. 420, 422 (1880) (citations omitted).

The trial court found that members of the Blagbrough family: (1) tore down the boathouse in approximately 1964 or 1965 because it was dilapidated; (2) routinely entered the parcel for walks and other recreational activities; (3) permitted their children to play on the parcel; (4) used the parcel as a source of Christmas trees; and (5) cut grass, removed trees, and planted some flowers on the parcel. Accordingly, the question here is whether these activities are sufficient to support a conclusion that Blagbrough obtained title by adverse possession to a portion of Lot A–21–1. We hold that they are not.

The law requires more than occasional, trespassory maintenance in order to perfect adverse title; the use must be sufficiently notorious to justify a presumption that the owner was notified of it. Pease v. Whitney, 78 N.H. 201, 204, 98 A. 62 (1916). The act of tearing down the boathouse, although not insignificant, was a one-time occurrence that the trial court found took place one or two years after the Blagbroughs acquired the parcel. That act, alone, therefore cannot be considered more than an occasional trespass. See id. Apparently recognizing this point, both the trial court and the parties properly focused more upon the Blagbroughs' other activities on the subject parcel in considering the adverse possession claim. With respect to these activities, although testimony did indicate that the Blagbrough family engaged in some of them "routinely," those activities are not sufficiently notorious or exclusive to satisfy the criteria for adverse possession. Compare Alukonis v. Kashulines, 97 N.H. 298, 299, 86 A.2d 327 (1952) (stating that forty years of continuous and uninterrupted use of disputed strip to cut hay, garden, and grow crops, combined with fact that strip visually blended in with possessor's lot due to rudimentary boundary monuments in his favor, constituted adverse possession), with Flanagan, 138 N.H. at 572, 644 A.2d 51 (noting occasional playing of children on tract constituted minimal use not exclusive or sufficiently adverse); Hemon v. Rowe Chevrolet Co., 108 N.H. 11, 16–17, 226 A.2d 792 (1967) (stating that plaintiff's setting off disputed boundary strip with row of spruce trees, which grew from small...