Sandford v. Town of Wolfeboro
| Citation | 143 N.H. 481,740 A.2d 1019 |
| Decision Date | 13 April 1999 |
| Docket Number | No. 96–588.,96–588. |
| Court | Supreme Court of New Hampshire |
| Parties | Joseph W. SANDFORD, Jr. v. TOWN OF WOLFEBORO and another. |
Douglas, Robinson, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and C. Kevin Leonard, on the brief, and Mr. Douglas orally), for the plaintiff.
Barto and Puffer, P.A., of Concord (Mark H. Puffer, on the brief and orally), for defendant Town of Wolfeboro.
Carolyn W. Baldwin, of Concord, for defendant Lake Wentworth Association, filed no brief.
The plaintiff, Joseph W. Sandford, Jr., appeals the Superior Court's (Abramson , J.) ruling that defendant Town of Wolfeboro (town) had acquired a prescriptive easement to flow Sandford's lakeside property above 528 feet mean sea level (M.S.L.). We affirm in part, reverse in part, and remand.
Because this case was decided by summary judgment, we recite the undisputed facts supported by sufficient documentation in accordance with RSA 491:8–a, and only those allegations necessary to illustrate the conflict before us. Sandford owns property on the shore of Lake Wentworth in Wolfeboro. The level of water on Lake Wentworth and Lake Crescent is controlled by dam # 258.01, which has had a height of approximately 534.7 feet M.S.L. since the 1920s. In 1958, the town acquired the dam by deed from the Smith River Corporation, subject to an agreement dated April 12, 1958. The agreement required the town to maintain certain minimum water levels in Lake Wentworth, which varied according to the time of year. It did not, however, limit the maximum water level. The agreement also stated that the town was acquiring the dam "primarily for the benefit of property owners along the shores of Lake Wentworth and Crescent Lake."
It is undisputed that since the 1920s, the water level of Lake Wentworth was maintained at the top of the dam during some portion of the year. Once the town owned the dam, it considered input from defendant Lake Wentworth Association (association), an organization representing the views of the lake's littoral property owners, when setting the particular water level. From 1958 to 1983, the town caused the lakes to be lowered approximately two and one-half feet from 534.7 feet M.S.L. between July 1 and September 1. Sandford alleges that in 1987, the town instituted a "no summer drawdown" policy and maintained Lake Wentworth's water level at 534.7 feet M.S.L. throughout the summer months. The town disputes this contention. He claims that this policy deprives him of the benefit of his property, and causes extensive shoreline erosion, tree damage, property damage, and damages to the structures on his property.
Sandford alleges that in 1989, he notified the town that he was withdrawing permission to flow his property beyond 528 feet M.S.L. The town agrees only that in 1989, Sandford informed it that he would like the level of the lake lowered at various times of the year. Following proceedings before the Water Resources Division of the Department of Environmental Services, Sandford filed a writ in superior court, in which the association intervened, alleging that the town's flow of his land beyond 528 feet M.S.L. was unlawful. The town moved for summary judgment, claiming that it had acquired a prescriptive easement to flow Sandford's land up to 534.7 feet M.S.L. based on the pre–1958 conduct of its predecessors in title as well as its own conduct since 1958. It conceded for purposes of the motion that it did not own Sandford's littoral land beyond 528 feet M.S.L. The trial court granted the town's motion, ruling that the town had a prescriptive easement to flow water to the top of the dam in a reasonable manner. The court further clarified its order in response to Sandford's motion for reconsideration. Sandford then appealed to this court.
"In reviewing a grant of summary judgment, we 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, 892 (1997). "If our review of that evidence discloses 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." N.E. Tel. & Tel. Co. v. City of Franklin , 141 N.H. 449, 452, 685 A.2d 913, 916 (1996) ; see RSA 491:8–a, III (1997). We consider a disputed fact " ‘material’ for purposes of summary judgment if it affects the outcome of the litigation under the applicable substantive law." N.E. Tel. & Tel. Co. , 141 N.H. at 452, 685 A.2d at 916 (quotation omitted). "Our review of the trial court's application of the law to the facts is de novo ." Del Norte, Inc. , 142 N.H. at 537, 703 A.2d at 892.
To achieve a prescriptive easement, the town must prove by the balance of the probabilities adverse, continuous, and uninterrupted flow of Sandford's land for twenty years "in such a manner as to give notice to the record owner that an adverse claim was being made to it." Greenan v. Lobban , 143 N.H. 18, 22, 717 A.2d 989, 992 (1998). "The nature of the use must [have been] such as to show that the owner knew or ought to have known that the right was being exercised, not in reliance upon [the owner's] toleration or permission, but without regard to [the owner's] consent." Town of Warren v. Shortt , 139 N.H. 240, 243, 652 A.2d 140, 141 (1994) (quotation and emphasis omitted). On appeal, Sandford challenges the trial court's conclusion regarding the adverse and continuous use elements, as well as the scope of any easement achieved.
Before reviewing Sandford's specific claims of error, we first address his assertion that our review is limited to whether a prescriptive easement was created prior to the town's 1958 acquisition of the dam. Sandford argues that because the trial court relied on the conduct of the town's predecessors in title between the 1920s and 1940s to conclude the town acquired a prescriptive easement, our review is likewise limited to the pre–1958 time period. We need not determine whether our review is so limited because we conclude that the sufficiently supported facts viewed in Sandford's favor demonstrate that the town acquired a prescriptive easement through the conduct of its predecessors in title. Therefore, we turn to Sandford's specific claims of error regarding the town's prescriptive easement claim.
Sandford argues that the trial court erred in concluding that the town satisfied the adverse use element. He asserts that the court erred in relying on the trespassory nature of the town's flowage of his land and by failing to require the town to prove absence of permission as a necessary component. He further asserts that the record was insufficient to establish that the town's use of his land beyond 528 feet M.S.L. was adverse; rather, he argues, the record shows permissive use when viewed in his favor.
The parties dispute whether the claimant or the landowner bears the burden of proof concerning permission, and particularly contest our holding in Town of Warren , 139 N.H. 240, 652 A.2d 140. Sandford argues that the town bears the burden of producing evidence of absence of permission to establish the adverse use element. The town contends that it need only produce evidence of trespassory use to establish the adverse use element, and that Sandford bears the burden of proving the existence of permission. The town asserts that under Town of Warren , a claimant need only prove absence of permission when asserting the existence of a prescriptive easement where the claimed right of way is coterminous with a deeded easement for the benefit of another. We conclude that neither party accurately interprets Town of Warren , and clarify that holding today.
In Town of Warren , we squarely addressed the issue of consent relating to the adverse use element. We reviewed our prior prescriptive easement case law and explained the parties' burdens of production and persuasion regarding this element. In so doing, we concluded that to establish a prima facie case on adverse use, a claimant must initially produce evidence of acts of such a character that create an inference that the claimant adversely used the landowner's property, that is, used it without permission. See id. at 243, 652 A.2d at 142. We did not require the claimant to produce affirmative evidence of absence of permission to satisfy its initial burden of establishing a prima facie case. Rather, we determined that once the claimant satisfies the initial burden of production, that burden then shifts to the landowner to produce evidence that the claimant's intrusive acts were, in fact, permitted. See id. This is not a shifting burden of persuasion; once the claimant satisfies the initial burden of establishing a prima facie case, the burden of production shifts to the landowner to produce evidence to the contrary on the issue of permission or run the risk of the fact finder finding in the claimant's favor. Cf. Tzimas v. Coiffures By Michael , 135 N.H. 498, 501, 606 A.2d 1082, 1084 (1992). The claimant always maintains the burden of persuasion on the issue of absence of permission as a necessary component of the claim of right or adverse use required for a prescriptive easement claim. See Town of Warren , 139 N.H. at 244, 652 A.2d at 142. The claimant must always satisfy the burden of persuasion to succeed on a prescriptive easement claim, even when the landowner fails to produce evidence of permission once the claimant establishes a prima facie case. Otherwise, "the requirement of adversity as an essential element of the prescriptive easement claim would be practically eliminated." Id. at 243, 652 A.2d at 142. With this standard in mind, we review the undisputed, sufficiently supported facts as to the relevant parties' pre–1958 conduct.
Since the 1920s, water has flowed to the top of the dam, which measured approximately 534.7 feet M.S.L., for a...
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