Favart v. Ouellette, 052220 NHSC, 2019-0197

Docket Nº:2019-0197
Opinion Judge:HANTZ MARCONI, J.
Party Name:EDWARD E. FAVART v. STEVEN M. OUELLETTE & a.
Attorney:Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief and orally), for the plaintiff. Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the brief and orally), for the defendants.
Judge Panel:HICKS, BASSETT, and DONOVAN, JJ., concurred.
Case Date:May 22, 2020
Court:Supreme Court of New Hampshire
 
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EDWARD E. FAVART

v.

STEVEN M. OUELLETTE & a.

No. 2019-0197

Supreme Court of New Hampshire, Cheshire

May 22, 2020

Argued: January 14, 2020

Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief and orally), for the plaintiff.

Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the brief and orally), for the defendants.

HANTZ MARCONI, J.

The plaintiff, Edward Favart, appeals an order of the Superior Court (Ruoff, J.) ruling that land owned by the defendants, Steven and Kevin Ouellette, benefits from an implied easement over the plaintiff's land along a fifteen-foot wide access road to the "beach area" of Sip Pond depicted on a 1992 subdivision plan. The court further ruled that installation and use of a dock is a reasonable use of the easement. We affirm in part, reverse in part, and remand.

The trial court found, or the record supports, the following facts. The properties relevant to this appeal are located along the shore of Sip Pond in Fitzwilliam, and were once part of a single parcel owned by Susanna and William Anderson. In 1947, the entire property was conveyed to the Andersons' four children. In 1961, the four siblings subdivided the property amongst themselves into four lots: Lot 1, the southernmost lot, contained 5.2 acres; Lot 2, deeded to Lillian Bellis, contained 3.6 acres; Lot 3, deeded to Henry Anderson, contained 3.4 acres; and Lot 4, the northernmost lot, contained 3.3 acres. All four lots were rectangular in shape and had water frontage along the shore of Sip Pond, but only Lot 3 had a beach area along the shore due to the littoral topography. When the property was subdivided, there were approximately 10 cottage-like structures scattered among the four lots, all of which were accessed using a private access road that weaved amongst the lots. None of the deeds to these four lots expressly granted or reserved any rights-of-way. The private access road is still used today, and the trial court's view of the property revealed plainly visible pathways that run through the parcels and "connect" the various structures.

In the 1960s and 70s, Lillian Bellis, who owned Lot 2, executed a series of conveyances that effectively subdivided Lot 2 and created some parcels without any frontage on Sip Pond, including Lot 7, which is now owned by the defendants. Some of the deeds to these transactions included language granting or reserving rights-of-way. In addition, a plan depicting the previously mentioned access road as a right-of-way to Sip Pond was created in 1973. Finally, the remaining Anderson heirs recorded another survey plan in 1992 (1992 plan), which depicts the lots created as a result of the conveyances made by Lillian Bellis.

Lot 1 on the 1992 plan - a part of what was originally Lot 2 - was conveyed to Henry Anderson and granted a right-of-way "beginning at the old Turnpike Road leading from Fitzwilliam to Winchendon to the shore of Sip Pond." Lots 2, 4, and 5, as depicted on the 1992 plan, were also conveyed to Henry Anderson, but no rights-of-way were granted or reserved in those conveyances. Lot 3 on the 1992 plan, conveyed to Robert Anderson, was granted "[a] right of way fifteen feet wide on the land of Lillian Bellis and boarding [sic] the land of Henry Anderson to the shore of Sip Pond," and "[a] right of way on the Westerly side of the old turnpike road leading from Fitzwilliam to Winchendon across the land of Lillian Bellis to [Lot 3]." Each of these conveyances occurred between August 1964 and April 1965.

In 1975, Lots 6 and 7 as depicted on the 1992 plan were conveyed in a single transaction from Lillian Jean[1] to Frank and Joan Michaelson. Joan is the mother of the defendants; Frank is their stepfather and also the nephew of Lillian Bellis and Henry Anderson. The deed to Lot 6 grants "a right of way fifteen (15) feet wide to the grantees . . . along the 'right of way to Sip Pond' from the Old Winchendon Turnpike and across [Lot 7] herein conveyed and also across land of Henry Anderson2 and others as presently used by the residents of the area." Lot 7 was conveyed "[s]ubject to a right of way in favor of the grantees and others across part of [Lot 7] from Old Winchendon Turnpike to other lands on Sip Pond as said right of way is presently used."

The Michaelsons conveyed Lot 6 to the plaintiff in 2004, who had acquired Lot 8 (originally Lot 3 in the 1961 subdivision) earlier in the same year. The deed conveying Lot 8 to the plaintiff describes the fee conveyed by reference to "8" on the 1992 plan, and states that "[t]he premises are subject to all conditions, easements, matters and state of facts" shown on the 1992 plan and a plan recorded in April 1961. In the deed conveying Lot 6 to the plaintiff, the Michaelsons reserved a fifteen-foot wide right-of-way "along the 'right of way to Sip Pond' from the Old Winchendon Turnpike and across other land of grantors, across the within granted premises, and also across land of Henry Anderson and others as presently used by residents of the area." The plaintiff subsequently acquired Lots 1-5 as depicted on the 1992 plan. Thus, the plaintiff had acquired Lot 8 and all of the subdivided parcels comprising what was originally Lot 2, except for Lot 7.

In 2007, the Michaelsons conveyed Lot 7 to Steven Ouellette, one of the defendants. The deed to that conveyance states that it is "[s]ubject to a right of way in favor of the Grantors (Michaelson) and others across part of the [conveyed] premises . . . from Old Winchendon Turnpike to other lands on Sip Pond as said right of way is presently used." Steven subsequently conveyed Lot 7 to himself and his brother Kevin...

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