Blaisdell v. Raab, 88-329

• Decision Date: 08 March 1990
• Docket Number: No. 88-329,88-329
• Citation: 132 N.H. 711,571 A.2d 261
• Parties: George BLAISDELL and Albert Blaisdell v. Arthur S. RAAB and Rita Raab.
• Court: New Hampshire Supreme Court

Page 261

571 A.2d 261

132 N.H. 711

George BLAISDELL and Albert Blaisdell v. Arthur S. RAAB and Rita Raab.

No. 88-329.

Supreme Court of New Hampshire.

March 8, 1990.

Michael J. Carroll, Portsmouth, by brief and orally, for plaintiffs.

Coolidge Professional Ass'n, Somersworth (Ronald P. Indorf, on the brief and orally), for defendants.

THAYER, Justice.

The plaintiffs, George and Albert Blaisdell, appeal a decision of the Superior Court (Perkins, J.) that they are not entitled to an easement by implication, and that the defendants, Arthur and Rita Raab, granted them merely a revocable license to use the roadway across the defendants' land to reach adjacent property owned by the plaintiffs. For the reasons that follow, we affirm.

The defendants were the owners of a large parcel of land located on Portland Street in Rochester. In 1977, the defendants subdivided their property into two separate parcels: a 34,680 square foot lot with frontage on Portland Street ("Lot 1"), and an approximately thirty-five acre lot with frontage on three city streets ("the back land"). A five or six hundred foot roadway, passing through Lot 1, provided further access into the back land. In April, 1979, George Blaisdell began negotiations with the defendants on behalf of himself and his parents for the purchase of the back land. After a few meetings, the parties agreed to a purchase price of $55,000, which was due by December 31, 1979. Mr. Blaisdell testified that during their discussions, the defendants orally agreed to grant the Blaisdell family a lifetime use of the roadway across Lot 1. He claimed that this agreement was reduced to writing, but was unable to produce a copy of the agreement at trial.

The plaintiffs began making payments toward the purchase of the back land on June 20, 1979. There is conflicting testimony concerning when the final payment was made, but the trial court found that the Blaisdells made their final payment on December 31, 1979. There is also conflicting testimony regarding the date on which the defendants gave the warranty deed to the plaintiffs. The plaintiffs alleged that the deed, dated December 14, 1979, was delivered on December 14; the defendants claimed that the deed was delivered on December 31; and the trial court found that the deed was given on December 31, 1979.

Contrary to Mr. Blaisdell's representations concerning the defendants' grant of a lifetime use of the roadway, Mrs. Raab testified that she and her husband never had any intention of granting the plaintiffs a lifetime use, and would not have sold the back land to the plaintiffs had they known that the Blaisdells wanted such a use. Instead, Mrs. Raab testified that when Mr. Blaisdell informed the defendants during their initial negotiations of the plaintiffs' desire to use the roadway to get to the back land, the Raabs told him that they thought it would be all right, but that they would have to contact their lawyer first. Thereafter, the defendants' lawyer drafted a document entitled "License to Use Driveway," in which Mr. and Mrs. Raab granted "to George Blaisdell and the members of his immediate family a revocable license to use a driveway for purposes of ingress to and egress from" the back land, "which is situate on a lot of land shown as Lot No. 1...." (Emphasis added.) Although Mr. Blaisdell denied having seen this document prior to May, 1985, Mrs. Raab testified that she and her husband showed him the initial draft of the license sometime during July, 1979. Mrs. Raab further testified that she and her husband presented the plaintiffs with an executed copy of the License to Use Driveway on December 31, 1979, the same day the plaintiffs made their final payment and the deed was delivered, according to the trial court's finding.

The plaintiffs used the roadway across Lot 1 to reach their property without incident from June, 1979 until May, 1985, when the defendants informed Mr. Blaisdell that they were going to revoke the license. On May 7, 1985, Mr. and Mrs. Raab presented the Blaisdells with an executed document entitled "License to Use Driveway Revoked," which terminated the plaintiffs' right to use the roadway across Lot 1. Disputing the defendants' right to terminate their use, the plaintiffs continued to drive across Lot 1 until the middle of July, 1985, when the defendants posted "No Trespassing" signs and placed a wire across the entrance to the driveway. The plaintiffs' lawsuit followed.

By writ of summons dated October 31, 1985, the plaintiffs filed pleadings in which they requested equitable relief in addition to legal relief that is not pertinent to this appeal. Specifically, the plaintiffs requested that the court find that they were entitled to a lifetime use of the driveway pursuant to an agreement between the parties. The defendants duly filed their appearance through counsel in November, 1985. On November 25, 1985, the defendants filed a motion to dismiss on the ground that the plaintiffs had failed as a matter of law to plead a claim upon which relief could be granted. After a hearing, the Trial Court (Nadeau, J.) denied the defendants' motion on May 22, 1986, but ordered the plaintiffs to set forth a bill of particulars within thirty days. The plaintiffs filed a bill of particulars on or about June 23, 1986, to which the defendants filed no objection, denial, or demurrer. On October 1, 1986, the defendants filed a second motion to dismiss, this time alleging that the plaintiffs were improperly seeking equitable relief. Rather than ruling on the defendants' second motion, the trial court severed the issues contained in the plaintiffs' writ and bill of particulars, ordering separate trials for the equitable and legal issues. From October, 1986, through March, 1988, the parties engaged in discovery.

Immediately prior to trial, on March 23, 1988, the plaintiffs requested the court to enter a judgment pro confesso in their favor based on the defendants' failure to file an answer to the bill of particulars as required by the Superior Court Rules. The defendants responded that they did not file a specific response to the bill because the suit had been framed as an action at law, requiring only the filing of a general appearance. After determining that the plaintiffs were not claiming surprise to the defenses that the defendants might raise during trial, the trial court denied the plaintiffs' motion. Following a trial on the merits, the lower court ruled that the plaintiffs were not entitled to an easement by implication or an easement by necessity. Additionally, the court concluded that based on the evidence presented during trial, the defendants granted the plaintiffs nothing more than a revocable license to use the driveway, so that "the defendants' exercise of their right to revoke the license terminates any rights the plaintiffs may have had to use the driveway."

The first argument the plaintiffs make on appeal is that the trial court erred in not granting them a judgment pro confesso based on the defendants' failure to file a written response to their bill of particulars. According to the plaintiffs, "Superior Court Rules 131, 132 and 133 require the defendants to specifically address, by way of answer, denial, or demurr [sic], the allegations and facts contained in plaintiffs' Bill of Particulars or have the allegations and facts deemed admitted...." The rules upon which the plaintiffs rely state as follows:

"131. If the defendant, having been duly notified, shall neglect to enter his appearance on the return day, or shall neglect to file and deliver to the plaintiff's attorney his plea, answer or demurrer within the time prescribed in the order, the bill shall be taken pro confesso, and a decree entered accordingly.

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133. The defendant, in answering the allegations in the bill, libel or petition shall not do so evasively but shall answer fully and specifically every material allegation in the bill, libel or petition and set out his defense to each claim asserted by the bill, libel or petition....

All facts well alleged in the bill, libel or petition and not denied or explained in the answer, will be held to be admitted."

Super.Ct.Rs. 131, 133. A writ differs from a bill or petition in that a party files a writ to initiate an action at law, whereas a party files a bill or petition to initiate an action in equity. See R. Wiebusch, 4 New Hampshire Practice, Civil Practice and Procedure § 214, at 157 (1984). Under New Hampshire practice, a defendant does not file an answer in response to a writ. Instead, if the defendant disputes some or all of the facts on which the plaintiff's action is based, the defendant need only file a general appearance. See Super.Ct.R. 131; R. Wiebusch, 4 New Hampshire Practice, Civil Practice and Procedure § 282, at 192-93 (1984). In equitable proceedings and other actions not begun by writ, however, it is necessary for a defendant to file an answer admitting or denying the allegations contained in the plaintiff's bill. Super.Ct.R. 133...