Ettinger v. Pomeroy Ltd. P'ship

• Decision Date: 02 July 2014
• Docket Number: No. 2013–354,2013–354
• Citation: 97 A.3d 1133,166 N.H. 447
• Parties: Thomas ETTINGER & a. v. POMEROY LIMITED PARTNERSHIP & a.
• Court: New Hampshire Supreme Court

166 N.H. 447

97 A.3d 1133

Thomas ETTINGER & a.

v.POMEROY LIMITED PARTNERSHIP & a.

No. 2013–354

Supreme Court of New Hampshire.

Argued: March 5, 2014

Opinion Issued: July 2, 2014

Hastings Law Office, P.A., of Fryeburg, Maine (Peter J. Malia, Jr. on the brief and orally), for the petitioners.

Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Kenneth D. Murphy on the brief and orally), for respondent The Nature Conservancy.

Orr & Reno, P.A., of Concord (Jeremy D. Eggleton ), for respondent Pomeroy Limited Partnership, filed no brief.

DALIANIS, C.J.

The petitioners, Thomas Ettinger, Margaret Ettinger, and Ettinger Family Holdings, Inc. (collectively, the Ettingers), appeal an order of the Superior Court (Houran, J.) denying their summary judgment motion and granting summary judgment to the respondents, Pomeroy Limited Partnership (Pomeroy Limited) and The Nature Conservancy (TNC), on the petitioners' petition for declaratory judgment. We reverse and remand.

The record establishes the following facts. The parties own real property on or around Silver Lake in Madison. The Ettingers own the servient estate identified on Madison Tax Map 121 as Lot 4. The original dominant estate, Lot 160, is separated from Lot 4 by lots owned by the Seasholeses and the Brookses, who are not parties to this litigation. Lot 160 is accessed by a private roadway known as Winter Road Extension. There is no dispute that Lot 160 has an easement to use Winter Road Extension.

The earliest mention of the easement in Lot 160's chain of title is contained in a 1930 deed from Rebecca H. Cummings to Logan R. Dickie. The 1930 deed from Cummings to Dickie conveyed Lot 160:

Together with the right to use the road leading from the Town of Madison to said Lot in common with the said grantor, his heirs and assigns and the owners and occupiers for the time being of all other houses or camps adjoining said road, and paying from time to time due proportion with other owners, whose lands abut upon said road, according to the extent of his or her frontage, of the expense of maintaining said road in proper repair, until the same shall be accepted and laid out by the town or other local authorities.

This language appears in subsequent deeds, in essentially the same form, up to and including the conveyance to Thomas W. Pomeroy, Jr. and Frances Pomeroy (the Pomeroys) in 1953. In 1965, twelve years after they obtained Lot 160, the Pomeroys obtained Lot 161, which abutted Lot 160. The Pomeroys' deed to Lot 161 does not refer to the Winter Road Extension easement.

In 1996, after Frances Pomeroy died, Thomas W. Pomeroy, Jr., deeded Lots 160 and 161 to Pomeroy Limited. That deed included the easement rights to Winter Road Extension, providing, in pertinent part: "TOGETHER with the right to use the private road known as Winter Road Extension leading from the Town of Madison for the purposes of ingress and egress to and from the above described Parcel One and Parcel Two...."

In 2010, Pomeroy Limited conveyed 31.63 acres of its property to TNC. The conveyance included land that comprised most of Lot 161 and a portion of Lot 160. Pomeroy Limited retained a 7.4–acre parcel that included the physical terminus of Winter Road Extension. The deed to TNC conveyed the "right of way over Winter Road Extension" and a "right of way over the remaining land of [Pomeroy Limited]." The deed to TNC also stated that the 31.63 acres conveyed are "not to be considered a separate lot of record," but are to "merge with the abutting land of [TNC]." The reference to "the abutting land" owned by TNC refers to TNC's nature preserve, known as Ossipee Pine Barrens Preserve, containing approximately 362 acres.

Following the conveyance from Pomeroy Limited to TNC, the Ettingers filed the instant action, asserting that the easement conveyed to TNC may benefit only Lot 160, and may not benefit Lot 161 or any of the rest of TNC's land with which Lots 160 and 161 have merged. Although the Ettingers at one time contended that the easement was overburdened by use, they no longer make that claim. They now claim that the easement was overburdened by extension. In ruling upon the parties' competing summary judgment motions, the trial court relied solely upon the language of the pertinent deeds. The court concluded that although "the easement language in this case presents a close[ ]" question, it "does not prohibit use to access after-acquired abutting parcels."

"In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party."

Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 82 A.3d 225, 227 (2013). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id . at 695–96, 82 A.3d at 227. "We review the trial court's application of the law to the facts de novo." Id . at 696, 82 A.3d at 227.

Resolving the issues in this appeal requires that we interpret the deeds in Lot 160's chain of title. The proper interpretation of a deed is a question of law for this court. Appletree Mall Assocs. v. Ravenna Inv. Assocs., 162 N.H. 344, 347, 33 A.3d 1097 (2011). As a question of law, we review the trial court's interpretation of a deed de novo . Id . In interpreting a deed, we give it the meaning intended by the parties at the time they wrote it, taking into account the surrounding circumstances at that time. Id. We base our judgment on this question of law upon the trial court's findings of fact. Id . If the language of the deed is clear and unambiguous, we will interpret the intended meaning from the deed itself without resort to extrinsic evidence. Id . If, however, the language of the deed is ambiguous, extrinsic evidence of the parties' intentions and the circumstances surrounding the conveyance may be used to clarify its terms. Flanagan v. Prudhomme, 138 N.H. 561, 566, 644 A.2d 51 (1994). A deed may have either a patent or a latent ambiguity. Id. A deed is patently ambiguous when the language in the deed does not provide sufficient information to adequately describe the conveyance without reference to extrinsic evidence. Id. A latent ambiguity exists when the language in the deed is clear, but the conveyance described can be applied to two different subjects or is rendered unclear by reference to another document. Id .

The Ettingers concede that TNC may use the Winter Road Extension easement to access that portion of Lot 160 that TNC now owns. However, they argue that TNC may not use the easement to access either the land that previously constituted Lot 161 or the Ossipee Pine Barrens Preserve. They contend that the language of the 1930 deed from Cummings to Dickie, which constitutes the first reference to the Winter Road Extension easement, is ambiguous, and that when extrinsic evidence is reviewed, it establishes that the easement was not intended to be used to benefit Lot 161 or any other non-dominant, after-acquired property. They argue that when the Pomeroys purchased Lot 161 in 1965, the Pomeroys had no right to extend to Lot 161 the easement conveyed with their previously purchased property, Lot 160.

TNC counters that "[t]he specific grant of the easement by Cummings in the 1930 deed is clear," and that there is no need to resort to extrinsic evidence. TNC contends that pursuant to the clear language of the 1930 deed, the easement may be used to benefit non-dominant, after-acquired estates. Alternatively, TNC argues that even if extrinsic evidence is reviewed, it does not establish any intent to preclude the Winter Road Extension easement from being used to benefit non-dominant, after-acquired properties.

"The general modern rule regarding the interplay between an easement appurtenant and a nondominant estate is that an appurtenant easement cannot be used to serve a nondominant estate." Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 757 A.2d 1103, 1111 (2000) (quotation and brackets omitted); see 1 Restatement (Third) Property, Servitudes § 4.11 (2000) ; see also J. Bruce & J. Ely, Jr., The Law of Easements and Licenses in Land § 8.14, at 8–49 to 8–52 (2011) ("The dominant owner may not use an appurtenant easement to benefit any property other than the dominant estate" because extending an easement "to serve nondominant land represents an overburden of the servient estate, regardless of the amount of usage." (citing cases)). "The purpose undergirding the rule is that the owner of the easement appurtenant may not materially increase the burden of the easement upon the servient estate or impose a new or additional burden." Il Giardino, LLC, 757 A.2d at 1111. "The doctrine was intended to protect the servient estate from the use of an easement in a manner or to an extent not within the reasonable expectations of the parties at the time of its creation." Id . (quotation omitted).

We have departed from this general rule in two cases: Heartz v. City of Concord, 148 N.H. 325, 330–31, 808 A.2d 76 (2002), and Soukup v. Brooks, 159 N.H. 9, 19, 977 A.2d 551 (2009). Heartz involved three parcels in Concord: 66, 66½, and 68 North State Street. Heartz, 148 N.H. at 326, 808 A.2d 76 ; see Soukup, 159 N.H. at 19, 977 A.2d 551. Lot 68 was owned by the Greek Orthodox Community, Inc., which sought to purchase lot 66½ to construct a parking lot that would benefit lot 68. Heartz, 148 N.H. at 326, 808 A.2d 76 ; see Soukup, 159 N.H. at 19, 977 A.2d 551. Lot 66½ had an easement to access the lot through lot 66. Heartz, 148 N.H. at 326, 808 A.2d 76 ; Soukup, 159 N.H. at 19, 977 A.2d 551. On appeal the owner of lot 66 argued that using the easement conveyed with lot 66½ to benefit lot 68 was "illegal because the easement will benefit a non-dominant ... tenement." Heartz, 148 N.H. at 330, 808 A.2d 76. We held that the church could use lot 66½'s easement to...