Dalzell v. Harlow, 86-139

• Decision Date: 30 December 1986
• Docket Number: No. 86-139,86-139
• Citation: 129 N.H. 43,523 A.2d 54
• Parties: Hugh M. DALZELL et al. v. Robert F. HARLOW et al.
• Court: New Hampshire Supreme Court

Page 54

523 A.2d 54

129 N.H. 43

Hugh M. DALZELL et al. v. Robert F. HARLOW et al.

No. 86-139.

Supreme Court of New Hampshire.

Dec. 30, 1986.

Nighswander, Martin & Mitchell P.A., Laconia (Peter J. Minkow, on brief and orally), for plaintiffs Hugh M. Dalzell, Howard G. Dalzell, Kathleen F. Dalzell, Edward Funkhouser, and Nancy F. Funkhouser.

Decker, Fitzgerald & Sessler P.A., Laconia (Paul T. Fitzgerald, on brief) for plaintiffs Arnold Robbins, Howard A. Layer, and Jane M. Layer.

Carolyn W. Baldwin and Robert K. Mekeel, on brief, Concord, (Robert K. Mekeel orally), for defendants.

MEMORANDUM OPINION

Acting on a petition and a cross-petition for injunctive relief and for declarations construing terms creating easements or other interests, the Superior Court (O'Neil, J.) excluded parol evidence offered by the defendants and entered an order in the plaintiffs' favor. We reverse.

The record provides evidentiary support for the following allegations. A property development known as Tall Pines Harbor, located on Lake Winnipesaukee's Meredith Neck, comprises five condominium units and eight individually owned back lots without shore frontage. The back lots were conveyed subject to the terms of a declaration affecting the condominium units. See RSA 356-B:16. The declaration reserved to the back lot owners rights, inter alia, "to use the beach area ... and dock," subject to obligations to contribute to maintenance costs as set by a "beach committee" of back lot and condominium owners. The declaration itself referred to an earlier condominium declaration, which provided that each condominium unit would carry with it the right to moor one boat, owned by the unit owner or lessee, "on the 'Wooden Dock' area."

The plaintiffs own back lots, and the defendants own the condominium units. The plaintiffs claim that their rights to use the dock include the right to use it for mooring boats, just as condominium owners and lessees are able to do; the defendants disagree, asserting that the back lot owners are entitled to use the dock only in connection with bathing, and for the collection and discharge of boating passengers. After the plaintiffs and other back lot owners began to moor boats at the dock, the defendants purported to amend the condominium declaration so as to eliminate the beach committee and forbid the back lot owners from using the dock for mooring.

The principal issues in this ensuing litigation are the extent of the permissible activities...