Hemon v. Rowe Chevrolet Co.

• Decision Date: 24 February 1967
• Citation: 108 N.H. 11,226 A.2d 792
• Parties: Ernest W. HEMON v. ROWE CHEVROLET CO., Inc., et al.
• Court: New Hampshire Supreme Court

Page 792

226 A.2d 792

108 N.H. 11

Ernest W. HEMON v. ROWE CHEVROLET CO., Inc., et al.

Supreme Court of New Hampshire.

Argued Dec. 6, 1966.

Decided Feb. 24, 1967.

Flynn, Powell & McQuirk, Portsmouth, and Raymond P. Blanchard, New Market, for plaintiff.

Hartnett & Moher, T. Casey Moher, Dover, for defendants.

PER CURIAM.

The master's report containing his findings, rulings and decree, which were approved by the Court, is as follows:

'The Master had a view of the premises.

'This is an action to restrain the defendants from entering upon a strip of land approximately ten feet wide, title to which is disputed by the parties; to assess damage for cutting of certain trees situated upon the disputed tract by the defendants; and to establish the boundary line between land of the respective parties.

'The burden of proof of establishing the trespass and the boundary line rests upon the plaintiff.

'The plaintiff and the defendant acquired title from a common ancestor, Elizabeth T. Keenan. The plaintiff's deed was dated April 4, 1936 and was recorded upon the same date. The deed to the plaintiff described the southeasterly corner of the premises as a determinable point and the frontage on Oak Street as running northwesterly from this point one hundred feet. The Master finds that the area in dispute does not fall within the deed's description of the premises.

'At the time the plaintiff negotiated for the purchase of his lot, the husband of Elizabeth T. Keenan showed the plaintiff and his wife a plan of the sub-division of the area. However, there was no reference in plaintiff's deed to any plan or to any specified lots. The plaintiff did not purchase or select specific lots. He was merely interested in buying a corner lot. He did, at the time of purchase, secure an oral option to purchase the land adjacent and westerly of the parcel conveyed to him.

'The Master finds and rules that the plaintiff did not acquire title to the disputed tract by virtue of his deed of conveyance or by virtue of any representations made to him at the time of purchase.

'The defendant, William H. Rowe, is a majority stockholder in the defendant company and up until 1962 was active in its management. For the purposes of his report, unless otherwise indicated, the use of the word 'defendant' refers both to Rowe and the Company.

'The defendant acquired title to his tract by deed dated April 2, 1946, the deed being recorded on March 3, 1947. The description of the tract conveyed by this deed is inclusive of the disputed tract.

'As the plaintiff's deed did not include the disputed tract and the defendant's deed did include it, the plaintiff's title, if any, must rest upon some theory of adverse possession or color of title.

'At the time of the hearing, the plaintiff filed a motion to amend his pleading to include allegations of claim of title by virtue of possession under color of title or adverse use. The Master granted the motion on condition that the defendant should be allowed such time as he might desire to prepare an adequate defense.

'As the deed to the plaintiff did not give any semblance or appearance of having passed title to the disputed tract to the plaintiff, the Master finds that the plaintiff did not acquire title under any theory of color of title.

'The plaintiff did construct and use a walk from the rear of his premises over the disputed tract of Oak Street. This constituted an open and adverse use of a portion of the disputed tract. However, the evidence is quite clear that the use and walk were abandoned and did not continue for a period of twenty years. It follows, therefore, that such use does not lay the foundation for any claim of title under any theory of adverse use.

'This leaves the most difficult question in the case, that concerning the legal effect of the planting and maintaining of a row of spruce trees along the westerly side of the disputed tract. Sometime in 1937 the plaintiff planted a dozen or more trees on a line within the area now in dispute. Along part of the line the trees were planted some six feet or so apart, but the evidence does not indicate whether any trees were planted in the area of some thirty feet back from Oak Street. From the exhibits offered and from the views taken of the premises by the Master, it would appear that at most no more than two trees that survived were planted within this thirty some odd feet back from Oak Street. This is therefore not a case where the disputed area could be considered as having been entirely set off by a complete row or line of planted trees.

'While at the time when the alleged trespass was committed by the defendant, on August 15, 1962, the trees in question had grown to such a thickness that along the line where they stood they barred every access through them to the disputed area, the important indication to be considered is that which existed twenty years previous on August 15, 1942, and continued to the time of the alleged trespass. There was, of course, no evidence offered as to the situation as it then existed. However, plaintiff's Exhibit #4 indicated the situation as it existed after the defendant had acquired his premises in 1946 and had at least begun construction of the building upon his lot. At that time the trees did not bar access to the disputed area.

'The Master finds that the trees planted by the plaintiff did not provide a complete or substantial enclosure of the disputed area for the statutory limitation period of twenty years.

'The trees planted by the plaintiff as they stood on August 15, 1942 or any date prior thereto was not such a 'flying of the flag' as would give open and notorious notice that the plaintiff claimed posession to the disputed strip.

'The Master finds and rules that the plaintiff never had title to the disputed strip by adverse possession. Inasmuch as he did not have title to the land, he did not have title to the trees planted thereon, and therefore an action of trespass does not lie against the defendant for having cut and removed the same.

'The Master finds and rules that the boundary line between the land of the plaintiff and that of the defendant is that as indicated in defendant's Exhibit B. Said line is more particularly described as beginning at an iron pipe set in the ground of the northerly side of Oak Street at a point one hundred seventy-eight feet (178 ) westerly of Central Avenue, thence running North 38 49 East for a distance of one hundred feet (100 ) to an iron pipe set in the...