Caouette v. Town of New Ipswich, 83-144

• Decision Date: 05 October 1984
• Docket Number: No. 83-144,83-144
• Citation: 484 A.2d 1106,125 N.H. 547
• Parties: Francis CAOUETTE et al. v. TOWN OF NEW IPSWICH. Francis CAOUETTE v. TOWN OF NEW IPSWICH. Raymond SOLOMONOFF v. Francis CAOUETTE et al.
• Court: New Hampshire Supreme Court

Page 1106

484 A.2d 1106

125 N.H. 547

Francis CAOUETTE et al. v. TOWN OF NEW IPSWICH.

Francis CAOUETTE v. TOWN OF NEW IPSWICH.

Raymond SOLOMONOFF v. Francis CAOUETTE et al.

No. 83-144.

Supreme Court of New Hampshire.

Oct. 5, 1984.

Runyon & Sweeney P.A., Peterborough (Walter H. Sweeney, Peterborough, on brief and orally), for Francis Caouette.

Tower, Bean & Crocker P.A., Jaffrey (Jeffrey R. Crocker, Jaffrey, on brief and orally), for the Town of New Ipswich.

Robert G. Senn, Nashua, by brief and orally, for Raymond J. Solomonoff.

PER CURIAM.

This is an appeal of three consolidated cases. In the case numbered E-81-488 below (hereinafter "Case 1") Francis Caouette appeals the superior court's ruling that its direct review of a decision of Selectmen of New Ipswich about location on the layout of a class VI highway must be limited to issues of fraud or gross mistake. In E-82-187 ("Case 2") Caouette appeals the superior court's dismissal on grounds of collateral estoppel of his petition for declaratory judgment and injunctive relief brought against the Town of New Ipswich to determine that certain roads had never legally been discontinued. In E-82-315 ("Case 3") Caouette appeals from an order of the superior court favorable to the plaintiff in a suit by Raymond Solomonoff to enjoin trespass to land. The consolidated cases were tried before a Master (James D. O'Neill, Esq.), whose report and recommendations were adopted by the Superior Court (Bean, J.). We reverse and remand case 1 and affirm cases 2 and 3.

In December 1978 Francis Caouette and Jeffrey Gray took title to a tract of land in New Ipswich. The description of the tract in their deed made no mention of any roads. There is no question, however, that the tract conveyed is bordered on the East by Old Peterborough Road, on the South by Old Rindge Road, and on the North and West by land of Raymond Solomonoff. Virginia and Raymond Allard own land to the South of Old Rindge Road, and their deed purported to convey to them the entire width of Old Rindge Road opposite the Caouette and Gray tract.

The deed to Caouette and Gray reserved from its conveyance "any rights of way if any such exist," but it did not purport to convey any right of way to them. The respective deeds to Solomonoff and to the Allards excepted from their conveyances any rights of way of the public or others. None of the deeds expressly created or granted any right of way to the Caouette and Gray tract.

In 1844, the Town of New Ipswich voted to discontinue the two old roads mentioned, and for many years before the time in question there had been no vehicular traffic over them. In 1920 the State blocked the intersection of Old Rindge Road with state route 123-124, and thereafter anyone passing from the state road to Old Rindge Road had to cross the land owned during this litigation by Solomonoff. Solomonoff in fact constructed a driveway from the state road over a corner of his land and over a portion of Old Rindge Road which he claimed as his own land, westerly of the portion of it that the Allards claimed as theirs. Solomonoff used his driveway to reach his own house. The driveway and stretches of Old Rindge and Old Peterborough Roads formed segments of the Wapack Trail for hikers, who had traveled the trail on foot over the years.

At the time of the conveyance to them, Caouette and Gray knew that without the use of Old Rindge or Old Peterboro Roads, or some other right of way, there could be no access by land to their tract. Accordingly, more than two weeks before taking title, Caouette and Gray obtained a license from Solomonoff to use his driveway as access to their tract for one year. Before the year was out Solomonoff advised them that he would not renew the license. Without access, the tract was useless as a site for the logging and lumber milling that Caouette and Gray desired to do, or for any other purpose.

The three cases here on appeal are parts of a complicated series of legal proceedings, either brought by Caouette and Gray to obtain access to the tract or brought against them to contest their assertions of rights of access. Since the appeal in Case 2 involves the effect under the doctrine of collateral estoppel of a prior judgment in two other consolidated cases heard before a different master (Cases A and B), it is necessary to consider these other cases even though they are not under appeal.

The preclude of this current litigation occurred in June 1980, when counsel for Caouette and Gray asked the town clerk of New Ipswich about the legal status of the two old roadways. In July 1980 and before either Caouette or Gray had received any response from the clerk, Caouette applied to the town planning board for a permit to build a three-room house on the tract. The board denied the permit and in August 1980, Caouette's attorney asked for its reasons. In September, the chairman of the planning board explained that "the road" had been discontinued and that Caouette and Gray had no proof of a right of access to the tract. In further communications the town clarified its position that both Old Rindge and Old Peterborough Roads had been discontinued by vote of the town in 1844.

In October 1980, counsel for Caouette and Gray began Case 1 by petitioning the selectmen of New Ipswich to lay out a highway over the route of Old Rindge Road, to give them access to their tract. They brought the petition under RSA 234:18-a (now RSA 231:22) (cf. RSA 231:40), which required the selectmen to lay out a highway subject to gates and bars over the course of a discontinued roadway, if the petitioner had no other public access to his land and if no one objected. The petition thus implied that Caouette and Gray accepted the town's position that the roads had been discontinued.

Before the selectmen had acted on the petition, in December 1980 the Allards brought a civil trespass action against Caouette and Gray alleging that they had trespassed on the portion of Old Rindge Road lying South of the Caouette and Gray tract and claimed by the Allards as theirs. Thus began Case A.

In February 1981, the selectmen had not yet acted on the petition for layout in Case 1. In correspondence with counsel for the selectmen, counsel for Caouette and Gray stated that they reserved the option to demonstrate that the town had never legally discontinued the old roads.

When the selectmen did act on the petition, a written objection to the petition was filed, with the legal effect of converting it into one for the layout of a new highway under RSA 234:1 (now RSA 231:8). In July 1981, the selectmen responded to the petition by laying out a road over Chapman and Old Peterborough Roads. The portion of the layout over Old Peterborough Road followed a right of way offered to the town for that purpose by Solomonoff, as less intrusive on his privacy than the route proposed by Caouette and Gray.

Caouette and Gray then began Case B, a quiet title action against the Allards and Solomonoff. Caouette and Gray claimed a right to use Old Rindge and Old Peterborough Roads, and claimed access to route 123-124, basing their claims on the deeds of the parties and on public prescription. After beginning Case B, in August 1981 Caouette and Gray appealed the selectmen's layout in Case 1 to the superior court under RSA 234:24 (now 231:34). At that point, Cases 1, A and B were all pending in the superior court.

In September 1981, a superior court master heard the combined cases A and B: the Allards' trespass action against Caouette and Gray, and Caouette's and Gray's action against the Allards and Solomonoff to quiet title. At the joint trial, Caouette and Gray again appeared to accept the position that the town had discontinued Old Rindge and Old Peterborough Roads. They asked the master to find the discontinuance as a fact and to predicate certain title determinations on the discontinuance. While we have been supplied only with fragments of the record in Cases A and B, it is apparent from the master's report that some evidence was presented on the issue of the discontinuance of the roads.

In December 1981, the master filed his report in Cases A and B. He found that "Old Rindge Road was discontinued by vote of the town in 1844," a "fact ... not contested by the parties in either action." While the master found that the parties had "little concern" for the status of Old Peterborough Road, he noted there was evidence of its discontinuance, and concluded that it too had been "effectively closed in 1844."

He went on to find no use by the public over any of the land except for hikers' use of the Wapack Trail. He concluded Caouette and Gray could claim no rights by prescription. He ruled that the Allards owned only the southerly half of Old Rindge Road, but that Caouette and Gray had trespassed on the Allard's half of that road by cutting trees. In January 1982, the superior court approved the master's report. None of the parties appealed the decree.

At this point, then, Cases A and B were over, and Case 1 was still pending in the superior court. Some three months later, Caouette alone brought Case 2, the petition to declare that the town had not legally discontinued the old roadways in 1844. He claimed that under the law in effect in 1844 the Town's vote to discontinue the roads had been legally insufficient for failure to gain the approval of the Court of Common Pleas. The town did not claim it had obtained court approval, but denied that such had been necessary. Caouette's claim appeared to be inconsistent with the position he had assumed in cases A and B, and with the master's findings in those cases.

The third of the actions now on appeal began in June 1982 when Solomonoff brought Case 3, a suit to enjoin Caouette and Gray from committing trespass.

By agreement, the Superior Court (DiClerico, J.) entered a temporary order enjoining Caouette and Gray from committing or causing trespass on Solomonoff's land. The case was...