Jesurum v. WBTSCC Ltd. P'ship

CourtSupreme Court of New Hampshire
Citation169 N.H. 469,151 A.3d 949
Docket NumberNo. 2015–0583,2015–0583
Decision Date09 December 2016

169 N.H. 469
151 A.3d 949


No. 2015–0583

Supreme Court of New Hampshire.

Argued: September 21, 2016
Opinion Issued: December 9, 2016

Shaines & McEachern, PA, of Portsmouth (Paul McEachern and Jacob Marvelley on the brief, and Mr. Marvelley orally), for Robert Jesurum.

Douglas, Leonard & Garvey, P.C., of Concord (Benjamin T. King on the brief and orally), for WBTSCC Limited Partnership and William H. Binnie, trustee of the Harrison Irrevocable Trust.

Joseph A. Foster, attorney general (Rebecca L. Woodard, senior assistant attorney general), for the State, filed no brief.

Donovan Law Office, of Concord (Michael L. Donovan ), for the Town of Rye, filed no brief.


169 N.H. 473

WBTSCC Limited Partnership and William H. Binnie, trustee of the Harrison Irrevocable Trust (hereinafter "the defendants")1 , appeal orders of the Superior Court (Wageling, J.): (1) concluding that members of the public, including the plaintiff, Robert Jesurum, had acquired a prescriptive easement over a portion of property owned or controlled by the defendants in the Town of Rye; (2) determining the scope of the easement; and (3) awarding

151 A.3d 953

attorney's fees to the plaintiff. We affirm in part and reverse in part.


The pertinent facts are as follows. The plaintiff has been a resident of Rye since 1990. The defendants own property located on Wentworth Road in Rye, the majority of which is used as a golf course. At issue in this case is a small, parabolic-shaped area on the northeastern corner of the defendants' property, referred to by the trial court as "Sanders Point." Wentworth Road abuts the property's northern border. To the southeast, Sanders Point connects to Little Harbor Beach via a five-foot wide sandy walking path. Little Harbor Beach is on an inlet to the Atlantic Ocean and forms the southeastern border of the golf course.

Prior to 2012, Sanders Point was a flat, gravel area with two connections to Wentworth Road. On the edges of the area were several signs that had been installed by the Town of Rye. One read "Beach Access," another forbade parking from 11 p.m. to 6 a.m., and a third prohibited recreational vehicles and campers. Near Wentworth Road, there was a grass square containing a fire hydrant and two metal poles. The southwestern border of Sanders Point was separated from the rest of the golf course by a split rail wooden fence, which the plaintiff testified that he believes has existed since the early 1990s.

At least since the 1950s, members of the public parked at Sanders Point to access the adjacent Little Harbor Beach using the sandy path, usually to dig for worms. During the 1970s and 1980s, members of the public regularly parked their vehicles at Sanders Point throughout the year to access the beach to walk their dogs, dig for worms, observe birds or inclement weather, and windsurf.

In the 1990s, usage of Sanders Point increased. The plaintiff stated that he "very rare[ly]" saw Sanders Point devoid of people. On several occasions during the 1990s and 2000s, golf course personnel used a portion of Sanders Point as a staging area. In 1996 or 1997, golf course personnel stored materials on the gravel area for an irrigation project. In 2004, golf course

169 N.H. 474

personnel used Sanders Point when they rebuilt a golf course pump house. Finally, in 2007, golf course personnel used Sanders Point when they cleaned up debris caused by a storm. There was no evidence that the public's use was interrupted by these projects. At no point did members of the public seek or receive express permission to use the gravel area or to access the beach.2

Tensions between the public and the defendants rose concomitantly with the increase in the public's use of Sanders Point. Trash and dog feces were left on the golf course, and individuals traversed onto the golf course. In addition, Binnie testified that there were confrontations between golf course employees and members of the public. In response to these incidents, the defendants blocked off Sanders Point from public access in October 2012 by installing boulders, bushes, and a fence between Sanders Point and Wentworth Road.

151 A.3d 954

In January 2013, the plaintiff brought this action seeking, among other things, a declaratory judgment that both the plaintiff and the public have the right to a prescriptive easement over Sanders Point for parking and to access Little Harbor Beach. Both sides moved for summary judgment. The trial court granted the plaintiff's motion for summary judgment and denied the defendants' motion, ruling that the public possessed a prescriptive easement over Sanders Point. The trial court did not, however, determine the scope of the public's easement rights because the parties had not briefed that issue. Instead, the court scheduled a hearing on the "scope" issue, which was held in June 2015. Following the hearing, the court ruled that the public was entitled to use Sanders Point to park and to access Little Harbor Beach, subject to certain restrictions.3

The plaintiff also sought attorney's fees, which the trial court initially declined to award. The plaintiff moved for reconsideration, and, while that motion was pending, the defendants appealed to this court. When the trial court thereafter granted the motion for reconsideration and approved an award of attorney's fees, the defendants moved to strike the award. The

169 N.H. 475

trial court denied the motion, and we thereafter permitted the defendants to add the attorney's fees issue to their appeal.


Before considering the merits of the issues raised on appeal, we first determine the applicable standard of review. The defendants contend that, because the trial court granted summary judgment in favor of the plaintiff on the issue of the existence of a prescriptive easement, we must review de novo the trial court's application of law to the facts and "look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party." Del Norte, Inc. v. Provencher, 142 N.H. 535, 537, 703 A.2d 890 (1997). Although the defendants properly articulate the standard applicable to review of a trial court's grant of summary judgment, see, e.g., Prolerized New England Co. v. City of Manchester, 166 N.H. 617, 622, 103 A.3d 217 (2014), this case presents an unusual situation in which the standard does not apply.

It is true that the trial court granted summary judgment in the plaintiff's favor on the issue of the existence of a public easement over Sanders Point, and postponed ruling on the issue of the scope of the easement until it could hold an evidentiary hearing on the merits. Yet our review of the record demonstrates that, at that hearing, the distinction between the issues of the existence of the easement and the scope of the easement was blurred to the point that the court effectively allowed the defendants to re-litigate the issue of whether an easement existed at all. For example, the defendants' counsel asked several witnesses whether they were ever told by golf course employees that they could not use Sanders Point—a line of inquiry that relates to whether the public's use of Sanders Point was adverse, not the scope of the public's use. Similarly, the defendants elicited testimony that golf course personnel had used Sanders Point to the exclusion of the public. Again, this testimony did not relate to the scope of the

151 A.3d 955

public's easement, but to whether the public's use of Sanders Point was continuous. Based on this testimony, the defendants submitted proposed findings of fact and rulings of law that are emblematic of the conflation of the issues of "existence" and "scope" of the easement. Among other things, the defendants requested that the court find that the plaintiff "failed to satisfy his burden of persuasion that he or the public acquired any prescriptive rights over the subject land." (Emphasis added.) The trial court, in turn, ruled on the defendants' arguments that no public easement existed.4

169 N.H. 476

Given that the defendants re-litigated the existence of the easement at what amounted to a full bench trial on the merits, we disagree with the defendants that we are constrained by the standard of review applicable to appeals from orders granting summary judgment.5 Rather than reviewing the record in the light most favorable to the defendants, we employ the more deferential standard that applies to the review of a trial court's decision rendered after a trial on the merits. Under this standard, we uphold the trial court's factual findings and rulings unless they lack evidentiary support or are legally erroneous. N.H. Fish & Game Dep't v. Bacon, 167 N.H. 591, 596, 116 A.3d 1060 (2015). We do not decide whether we would have ruled differently than the trial court, but rather, whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Id....

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