Flanagan v. Prudhomme

• Decision Date: 15 June 1994
• Docket Number: No. 92-625,92-625
• Citation: 644 A.2d 51,138 N.H. 561
• Parties: Michael FLANAGAN and another v. Steven and Eleanor PRUDHOMME.
• Court: New Hampshire Supreme Court

Page 51

644 A.2d 51

138 N.H. 561

Michael FLANAGAN and another v. Steven and Eleanor PRUDHOMME.

No. 92-625.

Supreme Court of New Hampshire.

June 15, 1994.

Rehearing Denied July 28, 1994.

Cooper, Hall, Whittum & Shillaber, P.C., Rochester (Daniel J. Harkinson, on the brief and orally), for plaintiffs.

Sheehan, Phinney, Bass & Green, P.A., Manchester (Daniel J. Lynch, on the brief and orally), for defendants.

BROCK, Chief Justice.

The Superior Court (Dickson, J.) resolved a dispute among neighbors about property boundaries and the location and use of a deeded right of way for access to the shore of Ossipee Lake. Dissatisfied with the results, the defendants, Steven and Eleanor Prudhomme, appeal the trial court's decision on the following grounds: (1) the trial court erroneously relied on parol evidence or the doctrine of adverse possession rather than on the terms of the deeds to resolve the boundary dispute; (2) the court's finding that the defendants' garage encroached on the plaintiffs' property and the award of $1000 as nominal damages were erroneous; (3) the court erroneously determined the intended use of the right of way based on parol evidence; (4) the award of damages for lost rental income was legally erroneous; (5) the award of costs for the plaintiffs' expert witness was excessive and legally erroneous; and (6) the award of attorney's fees to the plaintiffs was error. We affirm in part, reverse in part, and remand.

The parties all own lots with summer cottages in close proximity to each other along Ossipee Lake. Their lots are shown on a map, appended to this decision as appendix one, that designates several of the lots alphabetically. There is a common right of way, called the Camp Road, that crosses the lakefront lots approximately parallel to the shoreline. The defendants, Steven and Eleanor Prudhomme, own a lakefront lot, designated on the map as lots B and C, with their newly constructed house and garage. Plaintiffs Michael and Joyce Flanagan own a lakefront lot with a cottage, designated as lot D, and another lot, the back lot, located directly behind the Prudhommes' property. Plaintiffs Rocco Rizzuto and Kathleen Marciano own property with a cottage, which is located directly behind the Flanagans' lakefront lot; a separately deeded strip for a driveway from the Camp Road to their lot; and a deeded right of way extending from their driveway across the northern side of the Prudhommes' lot to the lake.

No dispute arose about the boundaries or the use of the right-of-way path to the lake through a series of property owners and for many years until the Prudhommes bought their lot in 1987. The Prudhommes had a survey done of their property and the surrounding area in 1987. Relying on boundaries indicated by their survey, the Prudhommes decided that their northern boundary with the Flanagans' lakefront lot, and the Rizzuto-Marciano right of way to the lake were further north than the path used as the right of way and the boundary claimed by the Flanagans. The Prudhommes built a stockade fence across the path and began to build a new house and a garage. When the Flanagans protested that the Prudhommes' land-clearing encroached onto their property, the Prudhommes responded that they could take them to court. As a result, the plaintiffs, the Flanagans, Marciano and Rizzuto, filed a petition for a permanent injunction, to quiet title to the land, and for compensatory damages. The plaintiffs also hired a surveyor to map the disputed properties. The disputed area, which includes the boundary between the Flanagans' and the Prudhommes' lots, hereinafter described as their "east-west boundary," and the Rizzuto-Marciano right of way, is designated as the area with diagonal lines between the lots marked C and D on appendix one. The defendants have not appealed the trial court's location of the Rizzuto-Marciano driveway.

The matter was heard in a nonjury trial and a view was taken of the property. The court found that the Flanagans' and Prudhommes' east-west boundary had been set by an oral agreement between the parties' predecessors in title at a line thirty-six feet north of the porch of the Prudhommes' predecessors' cottage. Alternatively, the court found that the same boundary had been established by adverse possession. The court determined, however, that the agreed boundary would "impose a harsh result on the defendants," and decided that a more equitable location, supported by observations made during the view, was warranted. Therefore, the court decreed the east-west boundary to be as drawn on the plaintiffs' survey. The relevant portion of the survey is appended to this decision as appendix two, and the boundary decreed by the trial court is the line drawn between points two and three. The court also decreed the location of the Rizzuto-Marciano driveway and the right of way to the beach to be based upon the plaintiffs' compromise agreed location also shown on appendix two. The decreed location of the driveway and the right of way is shown on appendix two as the area bounded by points one, two, three and four. The trial court explained the permissible uses of the right of way; ordered the defendants to remove their fence; ordered the defendants to pay the plaintiffs' attorney's fees and expenses including surveying fees; awarded Marciano and Rizzuto $15,400 as compensation for loss of rental income while the defendants blocked the right of way with their fence; and awarded the Flanagans $1,000 as "nominal damages" for the encroachment of the defendants' garage onto the Flanagans' back lot.

I. Resolution of the East-West Prudhomme-Flanagan Boundary

To prevail on appeal, the defendants must show that the trial court's determination of the disputed boundaries was unsupported by the evidence or was erroneous as a matter of law. MacNeill v. Brownell, 133 N.H. 184, 187, 574 A.2d 1375, 1377 (1990). The interpretation of deeds in a quiet title dispute is ultimately to be resolved by this court. Seward v. Loranger, 130 N.H. 570, 574, 547 A.2d 207, 210 (1988). Our determination of disputed deeds is based on the parties' intentions gleaned from construing the language of the deed from as nearly as possible the position of the parties at the time of the conveyance and in light of surrounding circumstances. Robbins v. Lake Ossipee Village, 118 N.H. 534, 536, 389 A.2d 940, 942 (1978).

The defendants argue that the trial court's order and decree of the boundaries is flawed because it is based upon evidence extrinsic to the deeds when, they argue, at least one relevant deed is unambiguous. Extrinsic evidence of the parties' intentions and the circumstances surrounding the conveyance may be used to clarify the terms of an ambiguous deed. Quality Discount Market Corp. v. Laconia Planning Bd., 132 N.H. 734, 740, 571 A.2d 271, 274-75 (1990); Locke Lake Colony Assoc. v. Town of Barnstead, 126 N.H. 136, 139, 489 A.2d 120, 122 (1985). 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. Locke Lake, 126 N.H. at 139, 489 A.2d at 122; Ouellette v. Butler, 125 N.H. 184, 188, 480 A.2d 76, 79 (1984). 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. MacKay v. Breault, 121 N.H. 135, 139, 427 A.2d 1099, 1101 (1981); see also In re Estate of Sayewich, 120 N.H. 237, 242, 413 A.2d 581, 584 (1980).

In this case, the Prudhommes' and the Flanagans' deeds are the beginning points for locating the east-west boundary between their lakefront properties. The Flanagans bought their property from Mildred Kelley, Joyce Flanagan's mother, in 1976. Their deed describes a lot with boundaries beginning at the lake shore at the land of John Colby (lot E on appendix one); then running westerly to the "Latti Farm, so-called"; then turning at a right angle and continuing thirty feet southerly; again turning at a right angle and running easterly to the shore of the lake; then turning northerly thirty feet along the shore to the beginning point. The Prudhommes' property was conveyed in two tracts from the Plumers. Tract one (lot B on appendix one) is described in the deed as a parcel with fifty feet of shore frontage and a depth of 130 feet, and named the southern abutter as the land of S.O. Huckins (lot A on appendix one). The deed description of the boundaries of tract two begins at a point on the shore of the lake thirty feet south of the "land formerly of John Colby"; the boundary then runs west to the "Latti Farm, so-called"; then turns at right angles and runs thirty feet on the western border to "land formerly of Dorothy Reith [sic ]"; then again turns at a right angle and runs east along the former Rieth property to the shore; and then runs north thirty feet along the shore to the beginning point.

The evidence at trial established that the Colby land, which later became the Kelleys' property and is designated as lot E on appendix one, can be fixed by reference to an existing granite monument in the northwest corner of the property. Once that point is located, the Flanagans' lot and the Prudhommes' tract two, each described with thirty feet of lake frontage and referencing the Colby land, can be situated as contiguous lakefront lots. Also, the Prudhommes' tract one, with fifty feet of frontage and abutting the land formerly of S.O. Huckins, can be located. When those lots are plotted on the ground as described by their distance calls, however, an unexpected fifty foot gap appears between the two tracts of the Prudhommes' property. As a result, the southern boundary of the Prudhommes' tract two that is described in its deed as abutting land formerly of Dorothy Rieth would actually abut the gap, rather than abutting tract one, which was the land formerly of Rieth.

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