Motion Motors, Inc. v. Berwick
| Decision Date | 20 April 2004 |
| Docket Number | No. 2003–008.,2003–008. |
| Citation | 150 N.H. 771,846 A.2d 1156 |
| Court | New Hampshire Supreme Court |
| Parties | MOTION MOTORS, INC. v. Kenneth G. BERWICK and another. |
Lester Wm. Firstenberger, PLLC, of Pittsfield, and Allyn C. Bridge, of Concord (Lester Wm. Firstenberger and Mr. Bridge, on the brief, and Mr. Firstenberger orally), for the plaintiff.
Sheehan Phinney Bass + Green, of Manchester (Robert R. Lucic and John–Mark Turner, on the brief, and Mr. Lucic orally), for the defendants.
The defendants, Kenneth G. and Doris D. Berwick, appeal orders of the Superior Court (Fitzgerald , J.) that: (1) the Berwicks could not maintain a claim for enhanced damages under RSA 227–J:8 (2000); (2) the Berwicks' gravel rights did not extend to the entire eastern half of the property owned by the plaintiff, Motion Motors, Inc. (Motion Motors); and (3) the Berwicks must remove the sawmill upon Motion Motors' demand. While the trial court addressed some issues as if both Berwicks had the rights in question, we note that the reservations of rights in the gravel, timber and sawmill were reserved to Kenneth Berwick personally. Motion Motors cross-appeals, arguing that the trial court erred by: (1) granting the Berwicks' petition to quiet title; (2) not admitting the testimony of certain witnesses; (3) dismissing Motion Motors' claim for damages; (4) ruling that Motion Motors had unlawfully terminated the Berwicks' mineral rights and extending those rights an additional three years; (5) denying Motion Motors' request for discovery of the drafting attorney's personal notes; and (6) granting the Berwicks' motion for a directed verdict. We affirm in part and reverse in part.
The record establishes the following facts. On March 24, 1988, Motion Motors purchased real property from the Berwicks, which Motion Motors had been renting from the Berwicks. At that time, the Berwicks' son, Michael Berwick, and Ralph Langevin each owned fifty percent of Motion Motors. The property is a square plot of land in Loudon, connected to Ricker Road by a twelve-foot wide "panhandle" that runs approximately 200 feet adjacent to the Berwicks' property. The Berwicks' property borders Ricker Road and, except for the "panhandle," separates Motion Motors' property from the road. The property conveyed consists of approximately 10.4 acres. Additionally, there is a sawmill on the conveyed property, which was used by Kenneth Berwick before and after the sale.
Motion Motors purchased the property by a quitclaim deed, which contained a metes and bounds description of the property, set out certain covenants and reservations, including a reservation for future use of the sawmill, and incorporated by reference an agreement (referenced agreement). The referenced agreement was revised on March 24, 1993 (revised agreement). Both parties argue that there are conflicts among the grants, covenants, and reservations in each document, as well as ambiguities within each document. Motion Motors has sought to sell its interest in the parcel. To date, any proposed sales have been contingent upon Motion Motors securing a release of Kenneth Berwick's reservation of the use of the sawmill.
We begin with the Berwicks' issues on appeal. They first appeal the denial of their counter-claim seeking enhanced damages for the unauthorized felling of timber.
When the Berwicks sold the property to Motion Motors, they reserved "under Kenneth G. Berwick, personally, ... the rights to harvest and remove all standing timber" on the property for fifteen years. The Berwicks allege that Motion Motors unlawfully invaded that right by cutting down trees on the property.
In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Estate of Ireland v. Worcester Ins. Co., 149 N.H. 656, 661, 826 A.2d 577 (2003). We look first to the statutory language itself, and, where possible, we ascribe the plain and ordinary meanings to words used. Id. If the language is plain and unambiguous, we need not look beyond the statute for further indications of legislative intent. Id. The trial court's interpretation of a statute is a question of law, which we review de novo . Pennelli v. Town of Pelham, 148 N.H. 365, 366, 807 A.2d 1256 (2002).
80 N.H. 14, 14, 112 A. 796 (1921), and argue that, as the owner of the trees, they are entitled to enhanced damages.
The penalty provided in RSA 227–J:8 is intended to protect trees as a marketable resource. See Peaslee v. Koenig, 122 N.H. 828, 831, 453 A.2d 832 (1982). The statute has two criteria to qualify for damages. First, the timber in question must have been situated on "the land of another person." RSA 227–J:8, I. Second, the person bringing the action must have been "the person injured." RSA 227–J:8, II.
In Smith , the plaintiff owned property and the defendant owned certain timber on that property, which he had purchased from the plaintiff. After the time period had expired for the defendant to cut down his purchased timber, he entered the plaintiff's land and over the plaintiff's objection cut down the timber. The plaintiff brought an action against the defendant claiming enhanced damages under a statute virtually identical to RSA 227–J:8. See PS 244:1 (1891); Smith, 80 N.H. at 14, 112 A. 796. We ruled that, although the defendant had committed an unlawful entry onto the plaintiff's land, the plaintiff was not entitled to damages under the statute because the plaintiff was not injured. See Smith, 80 N.H. at 14, 112 A. 796. Therefore, although the plaintiff met the first criterion, since the defendant cut down timber situated on the land of another person, the plaintiff failed to meet the second criterion because the plaintiff was not injured by the defendant's actions since the defendant owned the timber.
In the present case the roles of the plaintiff and the defendant are reversed. Kenneth Berwick, as owner of the rights in timber, qualifies as a person injured by the felling of the timber. Thus, the question is whether Motion Motors felled timber "on the land of another person." The Berwicks argue that timber rights should qualify as an interest in land sufficient to satisfy this requirement. They further argue that RSA 227–J:8 is a trespass statute and that chopping down the trees of another is considered trespass to land in other contexts.
In Lake v. Sullivan, 145 N.H. 713, 717, 766 A.2d 708 (2001), interpreting an almost identical predecessor statute, see RSA 539:1 (Supp.1994) (repealed 1995), we held that a tenancy did not qualify as "land of another" for the purposes of section I of the statute. Similarly, timber rights do not qualify as "land of another" for the purposes of RSA 227–J:8, I. The statute applies to timber felled on the land of another person. The legislature could have, but did not, provide that it apply when a party fells timber belonging to another person. See RSA 227–J:12, I (2000) ; see also Clifton Iron Co. v. Curry,
108 Ala. 581, 18 So. 554, 556 (1895). Therefore, the Berwicks fail to meet the first criterion because Motion Motors owned the underlying land and, thus, did not injure timber situated "on the land of another person."
The Berwicks next challenge the trial court's ruling that, under the quitclaim deed and referenced agreement, they could remove gravel only from a particular bluff of sand behind the sawmill rather than from the entire eastern half of the parcel.
The proper interpretation of a contract, such as a deed, is a question of law for this court. Baker v. McCarthy, 122 N.H. 171, 174–75, 443 A.2d 138 (1982). When the language of the deed is clear and unambiguous, we will interpret the intended meaning from the deed itself without resort to extrinsic evidence. Petition of Rattee, 145 N.H. 341, 345, 761 A.2d 1076 (2000). We review the trial court's interpretation of the contract de novo . Lawyers Title Ins. Corp. v. Groff, 148 N.H. 333, 336, 808 A.2d 44 (2002).
The language of the quitclaim deed states:
(Emphasis added.)
Motion Motors argues that the phrase "within premises" is ambiguous and should be interpreted in accordance with extrinsic evidence that it argues shows that the Berwicks intended to reserve rights only to the gravel behind the sawmill. The Berwicks argue that the language is unambiguous and that any extrinsic evidence shows that they are entitled to deposits throughout the...
To continue reading
Request your trial