Loeffler v. Bernier
| Decision Date | 31 March 2020 |
| Docket Number | No. 2019-0107,2019-0107 |
| Parties | Thomas J. LOEFFLER v. Paul BERNIER |
| Court | New Hampshire Supreme Court |
Beaumont & Campbell, Prof. Ass'n., of Salem (Bernard H. Campbell on the brief and orally), for the plaintiff.
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley, Jr., and Brett W. Allard, Manchester, on the brief, and Mr. Tilsley orally), for the defendant.
The defendant, Paul Bernier, appeals two orders of the Superior Court (Wageling, J.) granting partial summary judgment to the plaintiff, Thomas J. Loeffler, and denying the defendant's subsequent motion for reconsideration. The court ruled that the defendant was estopped by deed from denying that the plaintiff had an implied easement to access a right-of-way located on the defendant's property from a specific point on the plaintiff's property. The court also denied the defendant leave to raise new arguments at the reconsideration stage asserting that the plaintiff had abandoned any implied easement and, alternatively, that the purpose of any implied easement had been frustrated. The defendant appeals both rulings. We affirm.
The trial court determined that the following relevant facts were undisputed for purposes of ruling upon the plaintiff's motion for partial summary judgment. The plaintiff and defendant each own land that once belonged to Ernest Pillsbury. By 1968, Pillsbury had subdivided a portion of his land into thirteen lots. Six of those lots were positioned immediately adjacent to a right-of-way, which ran through Pillsbury's property from Pillsbury Road to Pillsbury's home. Those six lots are depicted on a 1968 subdivision plan as Lots 21, 23, 25, 27, 29, and 31. Although Lot 21 also has frontage on Pillsbury Road, Lots 23, 25, 27, and 29 do not. Those lots share boundaries with other lots and the right-of-way.
The plaintiff is the current owner of a portion of Lots 21 and 23, and all or nearly all of Lots 25, 27, and 29. At the time Pillsbury first carved out the plaintiff's lots, Pillsbury owned the land underlying the right-of-way. The deed for Lot 29, which was the first of the plaintiff's lots to be conveyed by Pillsbury, partially described the lot as "proceeding along Lot No. 31 a distance of one hundred twelve and six tenths (112.6) feet to the Westerly side line of a twenty-foot right of way; thence turning ... and proceeding along Westerly side line of said right of way a distance of fifty feet ...." This deed also "conveyed, as appurtenant to and to be used in connection with the above described premises a right of way over other lands of the above grantors to [Pillsbury Road], for all necessary purposes of entrance and exit to the conveyed premises ...."
In January 2018, the plaintiff initiated this action seeking declaratory and injunctive relief, damages, and attorney's fees. Arguing that he benefitted from an easement over the right-of-way, he sought to enjoin the defendant from interfering with his ability to access the right-of-way. The plaintiff later moved for partial summary judgment on the basis that there were no genuine disputes of material fact with respect to his right to access the right-of-way from a proposed access point on Lot 21. The defendant objected. After a hearing, the trial court granted the plaintiff's motion for partial summary judgment. Applying the doctrine of estoppel by deed, and relying upon the decision in 700 Lake Avenue Realty Co. v. Dolleman, 121 N.H. 619, 433 A.2d 1261 (1981) (2-1 decision), the court ruled that the defendant was estopped from denying that the plaintiff had an implied easement to access the right-of-way from the proposed access point on Lot 21 "because Pillsbury defined Lots 21, 23, and 25 by using the right-of-way ‘as a boundary in the deed’ at a time when he owned the right-of-way." (Quoting Dolleman, 121 N.H. at 624, 433 A.2d 1261.)
The defendant filed a motion to reconsider, seeking leave to raise new arguments as to why the plaintiff did not have an implied easement to access the right-of-way. The defendant asserted that he should be permitted to raise new arguments that the plaintiff had abandoned any implied easement and that the purpose of any implied easement had been frustrated because, while the plaintiff had argued he had the right to access the right-of-way, he did not specifically contend that he had this right based upon estoppel by deed. The court denied the defendant's request to raise these new arguments. Pursuant to Superior Court Rule 46(c), the trial court then directed that its order granting partial summary judgment be treated as a final decision on the merits. This appeal followed.
The defendant contends on appeal that the trial court erred in ruling that Lot 21 benefits from an easement over the right-of-way via estoppel by deed. According to the defendant, the original grantee of Lot 21 could not have "reasonably expected" to receive an easement over the right-of-way despite the fact that the deed to the lot used the right-of-way as a boundary in describing the lot's dimensions. The defendant also contends that the court erred in declining to address his arguments raised for the first time in his motion for reconsideration. We address these issues in turn.
In reviewing the trial court's grant of summary judgment, we consider the affidavits, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party. Town of Barrington v. Townsend, 164 N.H. 241, 244, 55 A.3d 952 (2012). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court's application of the law to the facts de novo. Id.
We have previously recognized that "[w]here property is conveyed in a deed and one or more of the calls is an abuttal on a private way there is a grant or at least a presumption of a grant of an easement in such way when the way is owned by the grantor."
Dolleman, 121 N.H. at 623, 433 A.2d 1261 (quotation omitted); see also Greenwood v. The Wilton Railroad, 23 N.H. 261, 265 (1851). In those circumstances, "the grantor, and all claiming under him, are estopped by deed from denying such an easement exists," and "[i]t is of no consequence that the fee to the [private way] remains in the hands of the original grantor or his assigns, or that the grantor did not intend to grant an easement, or that the easement is not one of necessity." Dolleman, 121 N.H. at 623, 433 A.2d 1261 (citations omitted); see also Melrose Fish v. Tennessee Gas Pipeline, 89 Mass.App.Ct. 594, 52 N.E.3d 1089, 1093 (2016) (noting that this principle of estoppel by deed " ‘seems to have become a rule of law rather than a mere canon of construction’ " (quoting Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 205 N.E.2d 222, 225 (1965) ). "Such an estoppel is one by deed because the deed on its face makes either an express grant or one arising by necessary implication and prevents the grantor from denying the representation made." Dolleman, 121 N.H. at 624, 433 A.2d 1261 (citation omitted).
Here, the plaintiff's motion for partial summary judgment sought to establish that he was entitled to access the defendant's right-of-way from a specific point on Lot 21. The 1968 deed that simultaneously conveyed Lots 21, 23, and 25 described these lots, in part, as "running in a Southeasterly direction along the 40 foot right of way for a distance of 150 feet ... to the intersection of said 40 foot right of way and said Pillsbury Road ...." Pillsbury owned the right-of-way at the time he conveyed the deed. Thus, "we are confronted," as we were in Dolleman, "with the situation in which a deed uses a way as a boundary and the grantor owns the way." Id. at 626, 433 A.2d 1261. "An implied easement has therefore been created," and "all parties in privity with [the original grantor] are estopped to deny" the easement's existence.1 Id.
The defendant nevertheless argues that the trial court erred in granting partial summary judgment to the plaintiff. The defendant contends that the doctrine of estoppel by deed is based in part upon the grantee's reasonable expectations, and the original grantees of Lots 21, 23, and 25 could not have reasonably expected to receive an easement over the right-of-way because (1) Lot 21 fronts Pillsbury Road, which is a public way, and (2) Pillsbury included an express easement to access the right-of-way in the deed for Lot 29 but did not do so in the deed for Lots 21, 23, and 25. The defendant's arguments are unpersuasive.
The defendant cites our opinion in Dolleman for the proposition that he is not estopped from denying the existence of the easement if "it can be shown that the grantee did not reasonably expect to receive an easement." Dolleman does not support this proposition. In Dolleman, the plaintiff acquired a...
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