Gallo v. Traina
| Decision Date | 12 September 2014 |
| Docket Number | No. 2013–652,2013–652 |
| Citation | 103 A.3d 1183,166 N.H. 737 |
| Parties | Ralph P. GALLO & a. v. Susan TRAINA & a. |
| Court | New Hampshire Supreme Court |
Brown and LaPointe, P.A., of Epping (Scott W. LaPointe on the brief and orally), for the petitioners.
Casassa and Ryan, of Hampton (Daniel R. Hartley on the brief and orally), for the respondents.
The respondents, Susan and Joseph Traina (the Trainas), appeal an order of the Superior Court (Delker, J.) ruling in favor of the petitioners, Ralph P. and Ruth L. Gallo (the Gallos), on their petition to quiet title to land that the Gallos use to access their home on Captain's Pond in Salem. We affirm.
The trial court found the following facts after a two-day evidentiary hearing and a view of the property in question. In 1986, the Gallos purchased land on Emilio Lane Extension in Salem. They tore down the existing structures and, in 1987, built their current home. They built a garage in September 1988.
Since purchasing the property, the Gallos have accessed it by using a looped driveway that ends on Emilio Lane Extension. They paved the driveway in May 1989. Before doing so, the Gallos installed a cement retaining wall and a decorative stone wall, planted a "burning bush" inside the stone wall, and planted various flowers and other vegetation along one side of the paved driveway.
In 1997, Susan Traina purchased property on Captain's Pond. In 2004, as part of a settlement agreement with her cousin, Ronald Peredna, she became the owner of a strip of land immediately to the east of the Gallos' property, which includes a paved area directly in front of the Gallos' walkway to their home and garage, a portion of their retaining wall and decorative stone wall, and the "burning bush." At some point, Peredna had acquired an easement to use a strip of land between the Gallos' property and his own property. The strip of land is currently owned by Dennis Iannalfo and his wife. Peredna later conveyed an easement deed to Susan, purporting to convey the easement to her. The Gallos' paved driveway and plantings are included on the Iannalfo strip of land.
The instant lawsuit was prompted by a long-running dispute between the neighbors that culminated in Susan's threat to build a fence around her property to cut off the Gallos' access to their garage. She also demanded that the Gallos remove the stone wall and plantings. The Gallos sought a declaration that they had a prescriptive easement to use their paved driveway located on the strip of land owned by the Iannalfos and that they had the right, by adverse possession, to maintain their retaining and decorative stone walls and plantings on Susan's land. Susan filed a cross-petition asserting a superior right to use the Iannalfo strip of land. On the morning of trial, Susan added her husband as a party. Although she originally purchased the subject property in her own name, it has since been transferred to her and her husband as joint tenants.
With regard to the Gallos' use of the land owned by the Trainas, the trial court ruled as follows. The court decided that land on which the retaining and stone walls and the bush sit belongs to the Gallos by adverse possession. The trial court rejected the Trainas' assertion that the granite post and fence that they installed in 2007 on their boundary line, to the south of the Gallos' retaining wall, and their occasional yard work around the burning bush interfered with the Gallos' exclusive use of the property. Specifically, the court found that "[b]y placing the fence there," the Trainas "in no way interfered with the Gallos' burning bush, retaining wall, or stone wall" and that the fence and maintenance of the land did not constitute "a co-occuring use of the land."
The court explained that "to interrupt the adverse possession, the record owner must perform some act which constitutes an ouster of the adverse claimant." Such conduct, the court observed, "must be such as would put a reasonably prudent person on notice that he or she actually has been ousted." (Quotation omitted.) Accordingly, the court stated, "[a] mere casual...
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