Cataldo v. Grappone

• Citation: 381 A.2d 1194,117 N.H. 1043
• Decision Date: 30 December 1977
• Docket Number: No. 7817,7817
• Parties: Charles J. CATALDO et al. v. Allen R. GRAPPONE et al.
• Court: New Hampshire Supreme Court

Page 1194

381 A.2d 1194

117 N.H. 1043

Charles J. CATALDO et al. v. Allen R. GRAPPONE et al.

No. 7817.

Supreme Court of New Hampshire.

Dec. 30, 1977.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for plaintiffs.

James D. O'Neill, Laconia, by brief and orally, for defendants.

PER CURIAM.

This case involves an alleged easement on the property of the defendants, and a counterclaim for trespass and other damages by the defendants. The trial before a Master (John D. McLaughlin, Esq.) resulted in a recommendation that the plaintiffs had sustained their burden of proving continuous adverse use for the prescriptive period. The court issued a decree in accordance with the master's recommendation and enjoined the defendants from interfering with the plaintiffs' use of the right of way. During the course of trial both the defendants and the plaintiffs seasonably excepted to the denial of certain motions and requests for rulings of law and findings of fact, and to portions of the master's report. All questions of law raised by the foregoing exceptions were reserved and transferred by King, J.

The right-of-way in issue is a certain road, referred to at trial as " Road A", which runs over a portion of the defendants' land. The plaintiffs purchased their property in 1953, and alleged in their amended petition that they have been adversely using Road A to obtain access to their property since that time. The defendants purchased a lot adjoining the plaintiffs' property in 1974. After the purchase, they erected a barrier across the road to prevent any further use of the road by the plaintiffs.

The defendants' principal argument is that the master's finding that the plaintiffs have been adversely using Road A for the prescriptive period is unsupported by the evidence. Whether the plaintiffs satisfied the requirements for acquiring an easement by prescription was a question of fact to be determined at trial. Ucietowski v. Novak, 102 N.H. 140, 145, 152 A.2d 614, 618 (1959); Gowen v. Swain, 90 N.H. 383, 386, 10 A.2d 249, 251 (1939). In reviewing this factual determination the issue "is not . . . whether on the reported evidence, the members of this court would find as the master has found, but whether any reasonable man could so find." Brown v. Hitchcock Memorial Hospital, 117 N.H. ---, 378 A.2d 1138, 1141 (1977); Weeks v. Morin, 85 N.H. 9, 12, 153 A. 471, 472 (1931).

Defendants first challenge the master's finding that plaintiffs' use of Road A was uninterrupted for the prescriptive period. Mr. Merriman, a witness for the defendant, testified that in 1957 he notified Mr. Banfield, the then owner of the Grappone property, that a gate, concededly built by the plaintiffs on the road in question, was on Mr. Banfield's property. Thereafter the gate was moved from its original location further along Road A. This testimony did not require that the master find that the plaintiffs' use of the roadway was interrupted as defendants apparently contend. The master was free to give this testimony the weight he felt it was entitled to and could even refuse to credit it entirely. Powley v. Lessard, 117 N.H. ---, 380 A.2d 681 (1977). Plaintiffs introduced evidence that the dispute concerning the gate was over its location, but that plaintiffs' right to use Road A was not challenged. There was also evidence that the gate remained on Road A, continued to be maintained and controlled by the plaintiffs, and that the plaintiffs' use of Road A continued. This evidence was sufficient to sustain a finding that the plaintiffs' use was not interrupted by any assertion of paramount right or voluntary abandonment. See Leo Foundation v. State of New Hampshire, 117 N.H. ---, 372 A.2d 1311 (1977); Jean v. Arsenault, 85 N.H. 72, 74-75, 153 A. 819, 820 (1931); Comment, Interruption of Use: A Prescription for Prescription, 25 U.Fla.L.Rev. 204, 208 (1972).

Defendants challenge the master's finding that the plaintiffs' use of the right of way in question was continuous for twenty years, the period necessary for acquiring an easement by prescription. Weeks v. Morin, 85 N.H. 9, 11, 153 A. 471, 472 (1931). One of the defendants' witnesses testified that the road in question did not exist in 1954. However, on cross examination the witness stated that he considered a road to be a way that is passable "the year round." The plaintiffs' evidence tended to establish that the road has been in existence since at least 1953 and has been used at least intermittently since that time. The master could find on this evidence that the plaintiffs' use of the road was continuous for twenty years. The use, although intermittent and of slight volume, was "characteristic of the kind of road claimed." Leo Foundation v. State of New Hampshire, supra, 117 N.H. at ---, 372 A.2d at 1313; Blake v. Hickey, 93 N.H. 318, 321-22, 41 A.2d 707, 709 (1945).

Defendants also contend that there was insufficient evidence to find that the plaintiffs' use of Road A was "open and notorious." However, plaintiffs introduced evidence that Road A was clearly visible on the ground since at least 1953, and that the family had been openly using the right-of-way since that time. There was also testimony that the Cataldos maintained the road and put in a culvert. From this evidence the master could infer that the plaintiffs' use was of a "character calculated to give notice to the owner of an adverse claim to the land by the possessor," Weeks v. Morin, supra, 85 N.H. at 12, 153 A. at 472. In addition, there was evidence tending to establish that the prior owners of the Grappones' property and the Grappones themselves actually knew of plaintiffs' use of Road A. This evidence is sufficient to satisfy the requirement that plaintiffs' use be open and notorious. "A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious . . . " Pease v. Whitney, 78 N.H. 201, 204, 98 A. 62, 64 (1916).

The defendants argue that the master's report reveals that he applied the wrong law to the case at bar. The master refers in his report to the Restatement of Property § 477, comment b (1944) ("Prescriptive interests depend for their existence upon the principle that an adverse use made continuously and uninterruptedly for the prescriptive period becomes thereafter legally justified") which concededly is taken from the chapter concerning the extent of prescriptive easements, as opposed to their creation. However, we find no error in applying this general statement to the creation of a prescriptive easement. See Hoban v. Bucklin, 88 N.H. 73, 86-87, 184 A. 362, 186 A. 8, 10 (1936); 4 H. Tiffany, The Law of Real...