Boyle v. City of Portsmouth

• Decision Date: 24 January 2020
• Docket Number: No. 2018-0327,2018-0327
• Citation: 172 N.H. 781,235 A.3d 985
• Parties: James BOYLE, Individually and as Trustee of the 150 Greenleaf Avenue Realty Trust v. CITY OF PORTSMOUTH & a.
• Court: New Hampshire Supreme Court

172 N.H. 781

235 A.3d 985

James BOYLE, Individually and as Trustee of the 150 Greenleaf Avenue Realty Trust

v.CITY OF PORTSMOUTH & a.

No. 2018-0327

Supreme Court of New Hampshire.

Argued: September 25, 2019

Opinion Issued: January 24, 2020

Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John Kuzinevich on the brief and orally), and Devine, Millimet & Branch, P.A., of Manchester (Joshua Wyatt and David P. Eby on the brief), for the plaintiff.

Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and Robert J. Dietel on the brief), and McLane Middleton, P.A., of Manchester (Bruce W. Felmly and Benjamin B. Folsom on the brief, and Mr. Felmly orally), for the defendant.

Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior assistant attorney general, on the memorandum of law and orally), for the State.

DONOVAN, J.

The plaintiff, James Boyle, individually and as Trustee of the 150 Greenleaf Avenue Realty Trust, appeals, and the defendant, City of Portsmouth (City), cross-appeals, following a trial in the Superior Court (Delker, J.) in which the jury awarded damages to Boyle for trespass and nuisance arising from the City's sewer line on his property.

On appeal, Boyle contends that the trial court erred in: (1) determining as a matter of law that the City's trespass began in 2013; and (2) excluding all evidence of future lost profits after 2016. The City asserts that the trial court erred in: (1) permitting Boyle's lost profits claims to go to the jury and refusing to set aside the jury's award; and (2) determining that the City did not have permanent rights in the sewer line. We affirm the trial court's ruling that the City had only a revocable license in the sewer line, reverse, in part, the court's rulings concerning the timing of Boyle's damages, reverse the court's ruling on Boyle's lost profits claim and vacate the jury award, and remand.

I. Factual and Procedural Background

The trial court found, or the record supports, the following facts. In 1967, the State owned the property at issue upon which the New Hampshire Board of Education (Board) had constructed a vocational school. On November 20, 1967, the Board approved "the request by the Department of Public Works of the City of Portsmouth to extend a sewer line across the rear of the property of the Vocational-Technical Institute in Portsmouth." The State thereafter sold the property on February 18, 1983, to three New Hampshire residents as tenants-in-common. On October 21, 1988, the tenants-in-common conveyed the property to MSM Brothers, Inc. (MSM), and on December 30, 2003, MSM conveyed the property to Boyle. In 2004, Boyle discovered the sewer line when he sought to develop the property to add an automobile dealership next to his existing dealership, Toyota of Portsmouth. Shortly after this discovery, Boyle contacted the City's attorney and granted the City permission to keep the sewer line on his property as the parties attempted to resolve the issue.

In 2010, Boyle sued the City, alleging, among other things, trespass "as a result of the presence of the sewer line," and nuisance from the "accumulation of water" due to the improper maintenance of the sewer line. In 2013, the parties cross-moved for summary judgment. In its orders, the trial court determined with respect to the trespass claim that: (1) the City does not have an easement in the sewer line by estoppel, ratification, or prescription; (2) the City obtained only a revocable license to install and maintain the sewer line; (3) as of November 12, 2013, Boyle "unequivocally" revoked the license; (4) the sewer line is trespassing on Boyle's property; (5) the City must "either remove the sewer line or obtain easement rights by eminent domain within a reasonable time"; (6) the "equities of the present case do not justify" compensating the City for the cost of removing the sewer line; (7) the City must provide reasonable compensation to Boyle from November 12, 2013, "until the line is removed or easement rights are acquired"; and (8) the amount of damages is subject to jury trial.

A ten-day jury trial was held in early 2017 on damages for the trespassing sewer line and on liability and damages for nuisance caused by water impounded by the sewer line. The jury found that Boyle was entitled to lost profits for the trespass, that the City created a nuisance due to water on the property, and that Boyle was also entitled to recover lost profits as a result of the nuisance. Boyle was awarded $3,570,000 in damages. The trial court denied the parties' post-trial motions, and this appeal and cross-appeal followed.

II. Analysis

A. The Sewer Line

We first address the City's argument that the trial court erred in determining that it does not have permanent rights in the sewer line.

Acknowledging that it does not have a recorded easement, the City contends that it "proved that it has a prescriptive easement" and that it "demonstrated that it met the criteria for an irrevocable license." Boyle counters that "the only evidence in the record" is that the City had permission for the sewer line from all owners prior to him and, therefore, there "is no evidence [the City] made adverse claims." Further, he argues that irrevocable licenses "are not recognized under New Hampshire law" and that, at most, the City obtained a revocable license from the Board.

In reviewing the trial court's rulings on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. See Conant v. O'Meara, 167 N.H. 644, 648, 117 A.3d 692 (2015). We review the trial court's application of the law to the facts de novo. Id.

1. Prescriptive Easement

To establish an easement by prescription, the claimant must prove, by a preponderance of the evidence, twenty years of adverse, continuous, and uninterrupted use of the land. See Marshall v. Burke, 162 N.H. 560, 564 n.3, 34 A.3d 705 (2011) ; Burke v. Pierro, 159 N.H. 504, 512, 986 A.2d 538 (2009) (the adverse, continuous, and uninterrupted use of the land must be such "so as to give notice to the owner that an adverse claim was being made to it" (quotation and brackets omitted)). When use of another's land begins with permission, it cannot become adverse in nature without an explicit repudiation of the earlier permission. See Taylor v. Gerrish, 59 N.H. 569, 571 (1880). The character of the use is a question of fact and the burden of proof remains on the claimant. Gowen v. Swain, 90 N.H. 383, 385-86, 10 A.2d 249 (1939).

The City asserts that the trial court erroneously determined that the prescriptive period did not begin to run until October 21, 1988, when the State's grantees — the tenants-in-common — conveyed the property to MSM. The City argues that the court "misinterpreted RSA 539:6, which prevents adverse possession as to State-owned lands," as providing that the prescriptive period "would not run during the times both that the State and the State's initial grantees" owned the property. According to the City, "[p]roperly construed, the statute prohibits adverse possession from accruing against the land while it is owned by the State," but does not "preclude adverse possession from running on land once it is privately owned." Therefore, the City asserts, "the prescriptive period started to run on February 18, 1983" and "ripened twenty years later on February 18, 2003, well before Boyle's purchase in December 2003." Even assuming, without deciding, that the City's interpretation of the statute is correct, there is no evidence in the record that the City's use of the land was anything other than permissive until Boyle revoked permission.

The City also argues that when the trial court found on reconsideration of its initial summary judgment order that the City has only a revocable license, it then erroneously "failed to reconsider how that ... impacted the permissive-versus-adverse aspect of" the City's use of the sewer line. The City asserts that as a matter of law the trial court "should have determined, in light of its new ruling, that the license was revoked by the conveyance of the Property from the State to [the tenants-in-common] and the period for establishing prescriptive rights was running." However, the burden was on the City to prove by the balance of probabilities twenty years of adverse, continuous, uninterrupted use of the land claimed "in such a manner as to give notice to the record owner that an adverse claim was being made to it." Ucietowski v. Novak, 102 N.H. 140, 144, 152 A.2d 614 (1959). Again, there is no evidence that the City's use of the sewer line was anything but permissive until Boyle revoked permission. See Taylor, 59 N.H. at 571 (the use having been commenced under a license, "if the defendants ... would have had their use[ ] adverse, they should have done some unequivocal act showing such intention"). Accordingly, we affirm the trial court's determination that the City does not have an easement by prescription.

2. Irrevocable License

The City argued in its motion for summary judgment that its license became irrevocable upon its expenditure of funds to install the sewer line. The trial court noted that "[e]arly New Hampshire case law recognized that licenses could become irrevocable even if they were orally given as long as they were executed, meaning the licensee detrimentally relied on the permission and expended resources in that reliance." However, as the trial court stated, that early case law was overruled by Houston v. Laffee, which held that a parol license could never become an easement because it does not comply with the Statute of Frauds. See Houston v. Laffee, 46 N.H. 505, 507-08 (1866). The Houston Court reasoned that to hold otherwise "would be giving to a parol license the force of a...