Robbins v. Lake Ossipee Village, Inc., 78-069

Decision Date18 July 1978
Docket NumberNo. 78-069,78-069
Citation389 A.2d 940,118 N.H. 534
PartiesHenry J. ROBBINS v. LAKE OSSIPEE VILLAGE, INC.
CourtNew Hampshire Supreme Court

Shaines, Madrigan & McEachern, P. A., Portsmouth (Branch S. Sanders, orally, Portsmouth), for plaintiff.

Sands & Patten, Ossipee (William S. Green, Manchester, orally), for defendant.

BOIS, Justice.

This is a petition for declaratory and injunctive relief. The plaintiff claims that the defendant may not restrict his use of certain beach property owned by the defendant and that he may not be assessed for his use of the property or beach facilities located on it. The property had been owned by the plaintiff and two other persons. When they conveyed it to the defendant, on May 21, 1971, they reserved a 120,000 square foot parcel of land, which was to be subdivided into no more than three residential lots. They also reserved a right of way to the beach located on part of the conveyed property. The deed to the defendant stated that:

said right-of-way (to the beach property) shall be subject to whatever assessment and restrictions on use that the Grantee may hereinafter place on said property. It is understood that said restrictions on use to be placed on said property by Lake Ossippee Village, Inc. will be declared and recorded in the Carroll County Registry of Deeds on or before June 1, 1972.

The defendant planned to subdivide the conveyed property and create a planned community on the site. The beach was to be a common area for all of the purchasers of the defendant's lots as well as for the plaintiff and his co-grantors. The defendant intended to construct a beach club on the property.

Originally a default judgment was entered against the defendant. That judgment decreed that the defendant may not impose any assessments or restrictions on the use of the beach. The judgment was to apply to the "plaintiff or plaintiff's successors in title as to the three lots of real estate retained by the plaintiff at the time of his sale of real estate to Lake Ossipee Village."

The defendant moved to vacate the default and set aside the decree. This motion was granted, and a hearing was held on the merits of the plaintiff's claim. The Master (Mayland H. Morse, Jr.) found that the defendant had failed to record restrictions on the plaintiff's use before the June 1, 1972 deadline. The master therefore recommended that the original decree be reinstated. This recommendation was approved by the Court (Cann, J.), who then reserved and transferred the defendant's exceptions.

[1,2] The defendant's first argument is that the lower court erred in decreeing that the plaintiff's use of the Beach may not be restricted when the deed reserves only a Right of way to the beach. We hold that the decree was not erroneous. The interpretation of deeds is ultimately for this court; however, our determination of the terms of a deed is based on the parties' intentions as properly found by the trial court. Woolsey v. Carmichael, 117 N.H. ---, 381 A.2d 328 (1977); Kalman v. Hutcheson, 111 N.H. 36, 276 A.2d 260 (1971). In construing the language of a deed, "the finder of facts must place himself as nearly as possible in the position of the parties at the time of the conveyance and gather their intention in light of the surrounding circumstances." Frew v. Dasch, 115 N.H. 274, 278, 339 A.2d 18, 20 (1975). Here the master found that the parties intended that the plaintiff retain not only access to the beach but also use and enjoyment of the beach. This finding is amply supported by the testimony at the trial. It is also supported by a common-sense reading of the deed itself. If plaintiff retained no right to use the beach, then his retention of a right of access to the beach would be meaningless. Cf. Williams v. Babcock, 116 N.H. 819, 824, 368 A.2d 1166, 1170 (1976). We therefore hold that the right of way referred to in the deed includes a right of use, and that the requirement that restrictions on the right of way be recorded includes a requirement that restrictions on the right of beach-use be recorded.

Defendant next challenges the finding that it did not file any restrictions on the plaintiff's right of way and use of the beach. At trial the defendant introduced a deed it gave to one of the purchasers of lots in the defendant's subdivision. This deed, which was recorded on September 7, 1971, provides that the purchaser has a right of membership in the defendant's beach club if the purchaser complies with "Beach Club Regulations." In this 1971 deed the defendant also reserved "the right to designate any lot or lots or portion thereof for community facilities or common areas," "the right to change or modify any restrictions without the consent of any lot owner by duly recorded amendments hereto," and "the right to execute and deliver deeds with restrictions different from these herein contained." The defendant relies on the pre-June 1, 1972, recording of this deed in arguing that the defendant complied with the requirement that it timely file restrictions on the plaintiff's access to and use of the beach.

The master properly rejected this argument. The parties contemplated that the defendant would record either a document expressly restricting the plaintiff's use of the beach or a document setting forth a common scheme of development of...

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14 cases
  • FDIC v. Caia
    • United States
    • U.S. District Court — District of New Hampshire
    • July 19, 1993
    ...at the time of the conveyance and gather their intention in light of the surrounding circumstances.'" Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536, 389 A.2d 940 (1978) (quoting Frew v. Dasch, 115 N.H. 274, 278, 339 A.2d 18 (1978)). Though the court's interpretation of the partie......
  • Flanagan v. Prudhomme
    • United States
    • New Hampshire Supreme Court
    • June 15, 1994
    ...the position of the parties at the time of the conveyance and in light of surrounding circumstances. Robbins v. Lake Ossipee Village, 118 N.H. 534, 536, 389 A.2d 940, 942 (1978). The defendants argue that the trial court's order and decree of the boundaries is flawed because it is based upo......
  • Burke v. Pierro
    • United States
    • New Hampshire Supreme Court
    • December 16, 2009
    ...of the terms of a deed is based on the parties' intentions as properly found by the trial court." Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536, 389 A.2d 940 (1978). "In construing the language of a deed, the finder of facts must place himself as nearly as possible in the positio......
  • Dumont v. Town of Wolfeboro
    • United States
    • New Hampshire Supreme Court
    • March 30, 1993
    ...181 (1990). We base our judgment on this question of law on the trial court's findings of fact. See Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536, 389 A.2d 940, 941 (1978). Clear and unambiguous terms of a deed control how we construe the parties' intent, see Lussier, 133 N.H. at......
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