Donaghey v. Croteau, 79-003
| Decision Date | 09 May 1979 |
| Docket Number | No. 79-003,79-003 |
| Citation | 119 N.H. 320,401 A.2d 1081 |
| Parties | Kenneth A. DONAGHEY et al. v. Walter S. CROTEAU et al. |
| Court | New Hampshire Supreme Court |
McSwiney, Jones & Semple, Concord (Robert E. Bowers, Jr., Concord, orally), for plaintiffs.
Hatfield & Henderson, Hillsboro (Leigh D. Bosse, Hillsboro, orally), for defendants.
The issue in this declaratory judgment action to determine the location of and rights in a right of way and a wharf on Lake Sunapee is whether the trial court's decree to defendants of title to the wharf and certain rights in the land of plaintiffs is supported by the evidence and the law. We hold with slight modifications that it is.
In 1925, John A. Stevens owned a large tract of land on the eastern shore of Lake Sunapee in the town of Newbury. He subdivided his shoreline property into seventeen separate lots. By deed and plan, he established a common passageway or right of way leading to the shore and separating lots # 13 and # 14 along the southern boundary of lot # 14. Stevens retained title to lot # 14 until his death in 1927. The plaintiffs currently own lot # 14 as well as the fee under the common passageway.
Defendant Walter Croteau's father, Joseph Croteau, purchased an inland lot from Stevens in 1923. By deed dated July 21, 1925, Stevens granted Croteau a right of way leading to the lake. The deed reads as follows: "A right of way over land of said grantor (Stevens) to a certain boathouse to be erected by said grantee (Croteau) on the shore of Lake Sunapee and on the shore of Lot # 14." This right of way and the wharf which Joseph Croteau constructed instead of a boathouse are the subjects of the present dispute. In particular what is disputed is whether the right of way is over the southerly sixteen feet of lot # 14 or over the common passageway between lots # 13 and # 14.
At his death in 1927, Stevens left his realty to his only daughter, Irene, who in turn conveyed lot # 14 to Herbert D. Stevens (no relation to John A. Stevens) by deed dated January 18, 1933. Herbert Stevens soon thereafter entered into, and later recorded, a written agreement with Joseph Croteau concerning the right of way in question. The agreement states in pertinent part:
That whereas said Croteau has a certain right of way by the conveyance of John A. Stevens . . . affecting to some extent Lot # 14 . . .. Now therefore, for the purpose of defining and establishing what right of way shall be over said Lot # 14, the two parties hereto . . . agree that (it) shall be the width of 16 feet and shall extend over said Lot # 14 as follows: on the Southerly side of said Lot # 14.
Joseph Croteau used the right of way and wharf he had constructed on the shore of lot # 14 for the next twenty-nine years for recreational purposes such as boating, swimming and picknicking. Title in lot # 14 changed hands several times during the period. At one point, an owner of lot # 14 built a small shed on part of the southern sixteen feet of lot # 14, but Croteau registered no complaint because he was able to use a part of the common right of way between lots # 13 and # 14 to get past the obstruction and thus to the wharf. In May 1962, Joseph Croteau sold his interest in his right of way and wharf to his son, defendant Walter Croteau. The plaintiffs purchased lot # 14 in 1967.
The record indicates that for a time the plaintiffs and defendants were close friends. By agreement between them, the wharf was rebuilt and extended with their combined efforts. It is undisputed that the plaintiffs built some stone steps leading down to the water and that they improved the area generally, but as to the rest of the work, the parties are in dispute regarding who supplied what materials and did what work. Pleasant relations existed until the plaintiffs became concerned with the number of people using the wharf and with the defendants' parking their car on the sixteen-foot-wide strip between the shed and the shore in such a fashion as to block the plaintiffs' driveway.
The plaintiffs sought a declaratory judgment that defendants' right of way was confined to the common passageway between lots # 13 and # 14 and not over lot # 14 and a declaration of the parties' respective interests in the way and wharf. Trial was before a Master (Robert A. Carignan, Esq.), who found the wharf to be owned wholly by the defendants. He found also that the defendants' right of way ran over lot # 14, but that a portion of it running between the main road and the shed had been abandoned through lack of use and obstruction. The remaining portion of the way, between the shed and the shore, was found to have been retained as originally granted. The master concluded that defendants' right of way was an easement appurtenant to their nearby property, and that their rights in it were exclusive. The Superior Court (Johnson, J.) entered a decree in accordance with the master's findings and recommendation, and reserved and transferred plaintiffs' exceptions.
The decree of ownership of the wharf to the defendants raises a question previously unaddressed by this court: Consonant with the laws of riparian and littoral rights, may an owner of property abutting a navigable body of water convey ownership of a wharf separate from ownership of the littoral property upon which the wharf is built? In our opinion, the question must be answered in the affirmative.
Littoral rights are incidental property rights associated with ownership of lakeshore property. 5 R. Powell, Law of Real Property P 710 (1979). In New Hampshire, the right to wharf out to navigable depth has long been recognized as a common-law littoral right. See Heston v. Ousler, 119 N.H. ---, 398 A.2d 536 (1979); Clement v. Burns, 43 N.H. 609, 617 (1862). The right to wharf out, however, like the right to appropriate riparian water or ice, Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 25 A. 718 (1889), is severable from the abutting property itself. Whether the right is viewed as a "franchise," State v. Knowles-Lombard Co., 122 Conn. 263, 265, 188 A. 275, 276 (1936), or as only an incidental property interest, "(t)he reason of the law does not forbid (the littoral owner) to sever and sell or lease the right he may not wish to exercise." Concord Manufacturing Co. v. Robertson, 66 N.H. at 20, 25 A. at 727; 2 H. Tiffany, Real Property § 667, at 723 (3d ed. 1939); Cf...
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