Choquette v. Roy, 2013–743

• Decision Date: 03 April 2015
• Docket Number: No. 2013–743,2013–743
• Parties: Raymond CHOQUETTE & a. v. Jason ROY Raymond Choquette & a. v. Thomas Robichaud & a. Raymond Choquette & a. v. Philippe E. Roy & a.
• Court: New Hampshire Supreme Court

167 N.H. 507

114 A.3d 713

Raymond CHOQUETTE & a.

v.Jason ROY

Raymond Choquette & a.

v.Thomas Robichaud & a.

Raymond Choquette & a.

v.Philippe E. Roy & a.

No. 2013–743

Supreme Court of New Hampshire.

Submitted: January 7, 2015

Opinion Issued: April 3, 2015

Cooper Cargill Chant, P.A., of North Conway (Christopher T. Meier on the brief), for Raymond and Pamela Choquette.

John L. Riff, IV, of Lancaster, by brief, for Jason Roy, Thomas and Kelly Robichaud, and Philippe E. Roy.

CONBOY, J.

Raymond and Pamela Choquette (the petitioners), filed separate petitions against Philippe E. Roy (P.E. Roy), individually and as trustee of the Roy Family Trust, Jason Roy, and Thomas and Kelly Robichaud (the respondents). These consolidated actions relate to the transfer of, use of, and access to certain parcels of land originally owned by the petitioners and currently owned by the respondents. The petitioners appeal an order of the Superior Court (Vaughan, J.), and the respondents cross-appeal. We affirm in part, reverse in part, and remand.

I. Background

The trial court found, or the record supports, the following facts. In 1986, the petitioners purchased approximately 400 acres of land off Hall Stream Road in Pittsburg. By 1988, the petitioners had begun subdividing and selling portions of this 400–acre parcel, some of which they conveyed to various buyers on a lot-by-lot basis. Between 1988 and 2002, many of the parcels conveyed were subject to restrictive covenants; the deeds, however, did not contain uniform covenants.

In 1999, the petitioners sold a 103–acre tract to P.E. Roy and his late wife. The deed for this parcel contained two easements over the petitioners' land: a fifty-foot right-of-way to Hall Stream Road and a twenty-foot right-of-way.

The fifty-foot right of way would have connected the 103–acre parcel directly to Hall Stream Road, but it has not been constructed.

The deed stated that P.E. Roy and his wife were responsible for the construction costs of the twenty-foot right-of-way and also for its maintenance, as long as they were the "sole users of said right-of-way." The deed further specified that when they were no longer its sole users, the maintenance was to be "apportioned equally between the users." The twenty-foot right-of-way was constructed and now is referred to as "Roy Boulevard." Roy Boulevard connects the 103–acre parcel to "Sugar Shack R.O.W.," which is a road owned by petitioner Raymond Choquette. Roy Boulevard was intended to be a driveway for a future residence on the 103–acre parcel, and was never intended to provide access to permit future development of the parcel; it was, nonetheless, eventually physically widened to fifty feet.

Sugar Shack R.O.W. connects to Hall Stream Road and terminates at the northeastern corner of the 103–acre parcel. Although the only way to access Roy Boulevard is to travel from Hall Stream Road over Sugar Shack R.O.W., the deed to P.E. Roy does not expressly grant him an easement over Sugar Shack R.O.W. P.E. Roy's testimony suggests that he has used Sugar Shack R.O.W. to access the northeastern corner of the 103–acre parcel since he acquired title to the property. P.E. Roy has previously performed maintenance and repairs on both Sugar Shack R.O.W. and Roy Boulevard. The petitioners have objected to P.E. Roy's maintenance of both roads, and, at times, have interfered with P.E. Roy's use of the roads.

In 2002, the petitioners filed an "Application for Registration of a Subdivision" (Subdivision Application) with the New Hampshire Attorney General, which proposed a subdivision of their property with six restrictive covenants (application covenants) for the future lots. In May 2002, a Certificate of Registration was recorded in the Coos County Registry of Deeds, but it did not recite or refer to any restrictive covenants.

In 2004, the petitioners conveyed two parcels identified in the Subdivision Application. First, they sold Lot 33–12 to the Robichauds' predecessor-in-title by a warranty deed that contained restrictive covenants that were "substantively and materially different" from the application covenants. Next, the petitioners conveyed Lot 33–13 to P.E. Roy, as trustee of the George M. Roy Trust, by a warranty deed that also included restrictive covenants that were "substantively and materially different" from the application covenants. At the time that these lots were conveyed, no other lots identified in the Subdivision Application had been conveyed, and the application covenants had not been recorded in the Coos County Registry of Deeds.

The Robichauds purchased Lot 33–12 in 2007 by a warranty deed with a description identical to that contained in their predecessor's 2004 deed. In 2010, Jason Roy acquired Lot 33–13 by a warranty deed with a description identical to that in his predecessor's 2004 deed. In 2011, the petitioners notified the Robichauds and Jason Roy that they wanted to amend the deeds for Lot 33–12 and Lot 33–13 to include the application covenants. The Robichauds and Jason Roy objected to the proposed amendments.

Subsequently, the petitioners filed a petition for declaratory relief against P.E. Roy to prohibit him from using and maintaining Sugar Shack R.O.W. and from maintaining Roy Boulevard. They also filed separate petitions to reform the deeds held by Jason Roy and the Robichauds. The respondents each filed answers and counterclaims, and the trial court consolidated the actions.

Following a bench trial, the trial court denied the petitioners' requests to reform the Robichauds' and Jason Roy's deeds. With respect to the petitioners' request for declaratory relief against P.E. Roy, the trial court concluded that P.E. Roy has the right to travel over Sugar Shack R.O.W. for ingress and egress to his 103–acre parcel but that he has "no right to maintain ... or interfere with the road." The trial court also ruled that Roy Boulevard "is a common right-of-way that the adjacent landowners may agree to maintain by sharing the costs and responsibilities," and that the petitioners have no independent right to maintain Roy Boulevard. Finally, the trial court found no basis for the respondents' counterclaims for breach of title and bad faith and, consequently, denied their requested recovery of attorney's fees and costs. This appeal followed.

II. Trial Court's Ruling Regarding P.E. Roy's Easement over Sugar Shack R.O.W.

We first address the petitioners' argument that the trial court erred by granting P.E. Roy an easement over Sugar Shack R.O.W. They assert that the deed to the 103–acre parcel does not include a right of access over Sugar Shack R.O.W. and that the trial court "ignore[d] the doctrine of merger" by relying upon language in the purchase and sale agreement to authorize such a right.

Under the merger doctrine, "prior negotiations must be taken, so far as the construction of the deed is concerned, to have been merged in that instrument, the conclusive presumption being that the whole engagement of the parties, and the extent and manner of it, were reduced to writing." Wells v. Company, 47 N.H. 235, 253 (1866) (quotation omitted); see also Russell v. Hixon, 117 N.H. 35, 38, 369 A.2d 192 (1977). Accordingly, pursuant to this doctrine, agreements between the parties that were included in a contract for sale are extinguished and merged into the deed. See 77 Am.Jur.2d Vendor and Purchaser § 241, at 318 (2006). "The rule that a contract is merged in a deed applies where the deed contains provisions which are inconsistent with provisions in the contract, where the deed varies from that stipulated for in the contract and where the purchaser protests against accepting the deed tendered as full performance of the contract." Id. at 319 (footnotes omitted).

The trial court, in evaluating the petitioners' request to prohibit P.E. Roy from using a portion of Sugar Shack R.O.W., "examined" both the deed and the purchase and sale agreement for the 103–acre parcel. The purchase and sale agreement states that the "Seller agrees to give buyers deeded access over existing road owned by Raymond Choquette"; the trial court found that Sugar Shack R.O.W. is the "existing road" referred to in the agreement.

The interpretation of a trial court order is a question of law, which we review de novo. State v. Kay, 162 N.H. 237, 242, 27 A.3d 749 (2011). Based upon our review of the order in this case, we cannot conclude that the trial court relied upon the language in the purchase and sale agreement to reach its decision that P.E. Roy was granted a right to use Sugar Shack R.O.W. Rather, the trial court recognized that P.E. Roy's deed did not include language granting P.E. Roy " ‘deeded access over [the] existing road[ ],’ " and then correctly recited the law on merger, stating: "As the result of the doctrine of Merger, the purchase and Sale agreement merged into the deed of conveyance and was extinguished." Consequently, we are not persuaded by the petitioners' argument that the trial court ignored the merger doctrine and "pull[ed] the right of access from language in the [purchase and sale agreement], and add[ed] such a right where it is not included in the deed."

We also disagree with the petitioners to the extent that they argue that the trial court erred by granting P.E. Roy a right of access over Sugar Shack R.O.W. because the access was not necessary. Although not expressly stated by the trial court, we interpret its order as finding that P.E. Roy had an easement by implication over Sugar Shack R.O.W.

An easement by implication is presumed to exist if, "during unity of title the owner imposes an apparently permanent and obvious servitude on one tenement in favor of another, which at the time of severance of title is in use and is reasonably necessary for the fair enjoyment of the tenement to which such use is beneficial."

Blaisdell v. Raab, 132 N.H. 711, 716, 571 A.2d 261 (1990) (quotation and ellipsis omitted). However, because "this doctrine is based on the theory of an implied...