Duchesnaye v. Silva

Decision Date30 October 1978
Docket NumberNo. 78-112,78-112
Citation118 N.H. 728,394 A.2d 59
PartiesRosaire J. DUCHESNAYE v. Charles SILVA et al.
CourtNew Hampshire Supreme Court

Edward J. Reichert, Gorham, by brief and orally, for plaintiff.

Bergeron & Hanson, Berlin (Arnold P. Hanson, Jr., Berlin, orally), for defendant.

GRIMES, Justice.

This action to quiet title concerns fee and easement rights in an undeveloped street. Two issues are presented: first, whether the trial court erred in finding that the plaintiff has a fee interest in one-half of an undeveloped access street which borders his subdivision lot, and second, whether the court erred in finding that defendant Silva, a subsequent purchaser of abutting lots, has an implied easement to the entire street as an access to his land. We answer both questions in the negative and affirm the lower court's rulings.

In 1904, the Brown Company (the company), then the Berlin Mills Company, duly recorded in the Coos County Registry of Deeds a plan or subdivision plat known as the "Cascade Addition, Plan No. 1 and 2." The Cascade Plan depicts an area within the city of Berlin containing some 300 lots divided into more than 30 blocks by a number of 50-foot access streets. As illustrated on the plat these streets were designed to provide each lot with access to Western Avenue, a well-developed public street abutting much of the plan's eastern length. One of these access streets, known as "Walnut Street," is the subject of the present dispute.

Plaintiff purchased two adjoining lots from the company in 1950; these lots, when joined as one property, abut both Western Avenue and Walnut Street. Plaintiff received a warranty deed which recited only that it conveyed "Lots 1 and 2 in Block 23" of the Cascade Plan, and that the conveyance was "subject to any and all rights the City of Berlin may have in the above-described premises for street purposes." A copy of the pertinent part of the plan was attached to the deed.

Plaintiff's property is but one of ten "Cascade lots" bordering Walnut Street. The property directly across Walnut Street from the plaintiff's land had been purchased from the company in 1949 by a Mr. Labonte. In 1967, Labonte sold the lot to a Mr. Leclerc. The deeds used in both the company-to-Labonte sale and the Labonte-to-Leclerc sale were similar to that used in the company-to-Duchesnaye (the plaintiff) sale; that is, the property description was by lot and block number only.

Following the sale to plaintiff the company made no further sales in the Walnut Street area until 1972. In that year, the company, by quitclaim deed, conveyed to the defendant Silva the entire remainder of block 22, most of block 21, a portion of block 20, "and all the land designated as proposed streets," including Linden, Walnut, and Wentworth Streets. Rights were reserved both for the city of Berlin for street purposes and for utility easements. Shortly thereafter, this dispute arose as to the respective rights of the parties in Walnut Street.

Both plaintiff and defendant Silva agree that the 1904 filing of the Cascade Plan constituted an offer of dedication of the proposed streets to the city of Berlin. Cf. Douglass v. Belknap Springs Land Co., 76 N.H. 254, 257, 81 A. 1086, 1088 (1911). See also Stozenski v. Borough of Forty Fort, 456 Pa. 5, 317 A.2d 602 (1974); 23 Am.Jur.2d Dedication § 23 (1965). Both parties also agree that the sales of lots by reference to the recorded plan in 1944 and 1950 constituted offers of dedication. See Harrington v. Manchester, 76 N.H. 347, 82 A. 716 (1912). It is undisputed, however, that the city failed to accept these offers of dedication within the time limits established by RSA 238:7. Since the city's interest is not now before us, future references to "the defendant" should be read to refer only to Mr. Silva.

Plaintiff's petition alleged that by reason of this failure of dedication, ownership of the disputed portion of Walnut Street reverted to himself and Mr. Leclerc. In addition plaintiff alleged that his continuous use of the street under a claim of right gave him title by adverse possession. Plaintiff's prayer asked that the court specifically foreclose any rights in the defendant and the city of Berlin to develop the portion of Walnut Street that he claims. The defendant answered that he owned the fee in the street, subject only to private easements of access for the benefit of abutting landowners. Defendant's prayer asked that it be decreed that he has the full right to develop all of Walnut Street for street purposes.

A trial before the Superior Court (Brock, J.) resulted in a finding that the plaintiff has fee simple title to the one-half of Walnut Street abutting his land. The court also found that the defendant has an "implied easement in such property, and has the right to develop such property for his and others' use for the purpose of ingress and egress." Both plaintiff and defendant took exceptions to these findings. All exceptions plus an agreed statement of facts were reserved and transferred to this Court (Brock, J.). The city of Berlin did not appear and does not contest that it has no rights in the disputed property.

I. Ownership of Walnut Street

In finding that plaintiff owns one-half of Walnut Street where it abuts his property, the trial court relied upon our decisions in Luneau v. MacDonald, 103 N.H. 273, 173 A.2d 44 (1961), and Gagnon v. Moreau, 107 N.H. 507, 225 A.2d 924 (1967). These decisions make it clear that a conveyance of property bounded by a street or highway normally conveys title to the center of the boundary street, unless clearly contrary language appears in the deed. Luneau v. MacDonald, supra, 103 N.H. at 276, 173 A.2d at 46. See also Holbrook v. Dow, Inc., 116 N.H. 701, 704, 366 A.2d 476, 479 (1976); Annot., 49 A.L.R.2d 982, 984-97 (1956). We have stated:

It is familiar law that where lots are sold by reference to a recorded plat or plan showing existing or proposed streets which constitute boundaries of the lots, a conveyance ordinarily operates to convey to the grantee the fee simple to land underlying adjoining streets and rights of way to the center line thereof . . . .

Gagnon v. Moreau, supra, 107 N.H. at 509, 225 A.2d at 925-26 (1967). See also Sawtelle v. Tatone, 105 N.H. 398, 201 A.2d 111 (1964).

We are mindful of the fact that each of the above-cited cases involved deeds which included both plat references and specific mention of the boundary streets. We see no reason, however, for a different rule where, as in this instance, the deed refers with particularity to a recorded map or plat. In such a case the grantor adopts and incorporates the map as a part of the deed, and the boundaries set forth on the map should be construed as if written in the deed. Suburban Land Co. v. Billerica, 314 Mass. 184, 189, 49 N.E.2d 1012, 1015 (1943); Loud v. Brooks, 241 Mich. 452, 454, 217 N.W. 34, 35 (1928); Henry v. Bd. of Trustees, 207 Ky. 846, 847, 270 S.W. 476, 477 (1925). See also Annot., 49 A.L.R.2d 982, 992-93 (1956). This is the majority and, in our view, the sounder rule.

The defendant points to certain language in plaintiff's deed in an attempt to show an intent contrary to the presumed intent to convey to the center line of Walnut Street. Defendant is correct in his assertion that this oft-quoted presumption can be rebutted; however, in this State, rebuttal requires a "clear and unequivocal declaration" of a contrary intent in the deed. Luneau v. MacDonald, 103 N.H. at 276, 173 A.2d at 46. The language in the deed that the conveyance to plaintiff was "subject to any and all rights the City of Berlin may have . . . for street purposes" is not a clear and unequivocal declaration. The quoted language merely confirms the fact that the access street had been offered for dedication. An offer of dedication is not inconsistent with an intent to convey a fee out to the center line. United States v. Certain Land in City of Portsmouth, 247 F.Supp. 932 (D.N.H.1965); Lake Garda Improv. Ass'n v. Lake Garda Co., 135 Conn. 240, 63 A.2d 145 (1948); 26 C.J.S. Dedication § 50 (1956).

The trial court correctly found that plaintiff owns the fee in one-half of the disputed portion of Walnut Street. We find it unnecessary to address plaintiff's theories of title by adverse possession and the reversion of title upon a failure of dedication.

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  • Shearer v. Raymond
    • United States
    • New Hampshire Supreme Court
    • January 13, 2021
    ...of the fee owner, subject to the public easement. Baldwin v. Wallace, 84 N.H. 71, 72, 146 A. 90 (1929) ; see also Duchesnaye v. Silva, 118 N.H. 728, 732, 394 A.2d 59 (1978) ("[A] conveyance of property bounded by a street or highway normally conveys title to the center of the boundary stree......
  • Hersh v. Plonski
    • United States
    • New Hampshire Supreme Court
    • December 7, 2007
    ...the twenty-year period ran from the date upon which the last lot was sold pursuant to the subdivision plan. See Duchesnaye v. Silva, 118 N.H. 728, 731, 394 A.2d 59 (1978). The trial court found, and the parties do not dispute, that the last lot was sold pursuant to the 1928 subdivision plan......
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    • United States
    • New Hampshire Supreme Court
    • November 16, 1981
    ...abandon their original easement by prescription. Cricenti v. Bewley, 120 N.H. 352, 353, 415 A.2d 675, 676 (1980); Duchesnaye v. Silva, 118 N.H. 728, 734, 394 A.2d 59, 62 (1978); Rosenblatt v. Kizell, 105 N.H. at 62, 192 A.2d at 615. There is no need to remand to the trial court for a determ......
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    ...conveys to center of dedicated street). Most jurisdictions adhere to this general rule of construction. See Duchesnaye v. Silva, 118 N.H. 728, 394 A.2d 59 (1978); Prewitt v. Whittaker, 432 S.W.2d 240 (Mo.1968); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 205 N.E.2d 222 (1965); F......
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