Ouellette v. Butler, 83-335

• Decision Date: 03 July 1984
• Docket Number: No. 83-335,83-335
• Citation: 125 N.H. 184,480 A.2d 76
• Parties: Omer A. OUELLETTE, Jr. and Constance C. Ouellette v. Bradford F. BUTLER and Lois K. Butler.
• Court: New Hampshire Supreme Court

Page 76

480 A.2d 76

125 N.H. 184

Omer A. OUELLETTE, Jr. and Constance C. Ouellette v. Bradford F. BUTLER and Lois K. Butler.

No. 83-335.

Supreme Court of New Hampshire.

July 3, 1984.

Decker, Fitzgerald & Sessler, Laconia (James N. Sessler, Laconia, on the brief and orally), for plaintiffs.

Sulloway, Hollis & Soden, Laconia (John P. Chandler, Laconia, on the brief and orally), for defendants.

BROCK, Justice.

The plaintiffs brought this action to enjoin the defendants' use of their land. We are asked to determine whether an instrument which on its face gives the defendants a "license" to use the plaintiffs' land, may under the circumstances of this case be deemed to create an irrevocable interest; i.e., an easement. The Superior Court (Cann, J.), approving the recommendation of a Master (Robert A. Carignan, Esq.), ruled that the instrument in question, viewed in the light of the drafter's knowledge was clearly intended to convey an irrevocable interest and could be deemed to do so, notwithstanding its denomination as a license. We affirm.

The defendants, Mr. and Mrs. Butler, in 1961 purchased a parcel of land in Laconia from its owner, Rachel Gilbert. On the parcel was a house which had just been built by Mrs. Gilbert's husband, Eugene. At Mr. Butler's request, Mr. Gilbert also constructed a paved two-car parking area, or driveway, adjacent to the public right-of-way near the east side of the house, and connected this area to the house with a short paved walkway, all of this construction being completed prior to the closing of the sale.

At the closing, Mr. Butler, who was not represented by counsel, learned for the first time that the eastern boundary of the lot he was buying was only two feet from the wall (and the principal entrance) of the house, and that consequently the parking area and most of the walkway were not on his land. They were, in fact, on land owned by the estate of Eugene Gilbert's deceased brother Wilfred. The trustee of that estate, F.A. Normandin, also served as Eugene and Rachel Gilbert's attorney, and represented them at the closing.

F.A. Normandin died in 1967. At trial, Mr. Butler testified that Normandin told him at the closing that he would give the Butlers a legal document giving them the right to use the parking area and walkway, and Eugene Gilbert testified that Mr. Butler would not have purchased the property otherwise.

Normandin drafted and signed a document headed "SUPPLEMENTARY AGREEMENT," which reads in pertinent part: "The said F.A. Normandin, Trustee, hereby gives a license to the said Bradford F. Butler and Lois K. Butler to travel on foot and by vehicle, from said [public right-of-way], over the private land of Wilfred Gilbert Estate to the land of the aforementioned Lot # 4 [the Butler lot]." This document was witnessed, acknowledged, and sealed, but was never recorded in the Registry of Deeds.

The land on which the parking area is located was later owned by two of Wilfred Gilbert's children, and was purchased by the plaintiffs in 1978. The plaintiffs concede that they knew of the defendants' use of the parking area when they bought the land. By that time, the defendants had for several years been making small improvements to the plaintiffs' land adjacent to the parking area--seeding and mowing a lawn, building a low retaining wall, etc.

The plaintiffs then brought this action, seeking to enjoin the defendants from making any use of their land. They argued, first, that the defendants had no semblance of a right to use any of the plaintiffs' land outside the parking area; and second, that the right to use the parking area was a license and was thus revocable at will by the plaintiffs. They further argued that, even if equity might normally prevent a revocation, the defendants' inequitable conduct in using land outside the parking area barred them from raising such a defense.

The master found that, while the interest created by the "Supplementary Agreement" was a license, it

"was clearly and unambiguously intended by the drafter to be an irrevocable as opposed to a revocable license. Normandin was aware of the investment being made by the defendants; aware of the prior misunderstanding as to lot lines when the house was constructed and the peculiar problem created by the construction of the house so near a lot line and the necessity for the license and right to park vehicles and the right to travel over their abutter's property for so long as the structure remained in existence."

The master recommended that the plaintiffs' petition for an injunction be approved only insofar as it applied to the land outside the parking area and walkway. The defendants would thereby be restrained from making any use of the plaintiffs' property other than for parking vehicles and for ingress to and egress from their house, using the area paved in 1961. The trial court entered an order to that effect, and the plaintiffs appealed. The defendants cross-appealed from the issuance of the injunction, arguing among other things that the plaintiffs' construction of a fence, which restricts the defendants' access to the land outside the parking area, constituted a nuisance.

While the interpretation of deeds and analogous instruments is ultimately a matter for this court, see Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536, 389 A.2d 940, 941 (1978), our determination of their terms "is based on the parties' intentions as properly found by the trial court." Id. (emphasis added). In this case, the master acted properly when he interpreted the language of the instrument "with reference to the surrounding circumstances known to the grantor at the time of the conveyance." MacKay v. Breault, 121 N.H. 135, 139, 427 A.2d 1099, 1101 (1981). Extrinsic evidence is admissible when it "serves to aid in interpretation, or to clarify an ambiguity...