Seward v. Loranger

Decision Date08 July 1988
Docket NumberNo. 86-448,86-448
Citation547 A.2d 207,130 N.H. 570
PartiesRussell SEWARD et al. v. Patrick LORANGER et al.
CourtNew Hampshire Supreme Court

Grinnell & Bureau, Derry (David R. Connell, on the brief and orally), for plaintiffs.

Stephen N. Cahill, Concord, on brief and orally, for defendants.

BROCK, Chief Justice.

The plaintiffs, Russell and Elaine Seward, appeal from a decision of the Superior Court (Gray, J.), denying their petition to quiet title and for injunctive relief in a boundary dispute involving property in the vicinity of Pleasant Lake in Northwood. The trial court, at the same time, granted the petition of the defendants, Patrick and Michele Loranger, for such relief. For the reasons that follow, we reverse and remand.

The dispute between the parties involves land on the east side of a so-called "great pond," Pleasant Lake. Under State law, the State has title to the water and bed of the lake, to the mean natural high water line. RSA 4:40-a (Supp.1987), 271:20, 482:41-e (Supp.1987). In the early 1900's, however, a mill erected a dam on the lake. Since then, the presence of the dam has increased the volume of water in the lake, resulting in an artificial water line that is located above the level of the natural high water line and fluctuates seasonally as a consequence of dam operations. The current owner of the dam is the Town of Deerfield.

The dispute between the parties, who own parcels of land to the east of the lake in its artifically expanded state, concerns property located above the natural high water line of the lake. The deeds in the record indicate that the parties' two lots had their origins in a 120-acre tract which Edward Langmaid conveyed to Jackson Philbrick in 1879, prior to the construction of the dam, and which Robert Philbrick conveyed to James and Hazel Steele in 1944, after dam operations had begun. The latter, Philbrick-to-Steele deed (1) stated that the 120-acre property's western boundary was "on the shore" of the lake, (2) stated that the property was "the same premises conveyed" by Langmaid to Jackson C. Philbrick, and (3) reserved "the right to flow the land bordering on said Pleasant Pond." The Steeles thereafter created and sold lots from the 120-acre parcel.

The Sewards purchased their parcel, known as lot 10, from the Steeles in 1961. The deeded Seward lot is to the east of and abuts Camp Road. The deeded westernmost corner of the lot is "at an iron pipe set at high water mark in ground on the East side of the road," the "high water mark" being the artificial high water line at that time, and the deed indicates that the lot was "conveyed with a right of way to the lake level." The deed also states that lot 10 was "taken from the Jackson C. Philbrick lot now owned by [the Steeles]," but does not mention the flowage rights that Philbrick reserved in the conveyance to the Steeles.

Shortly after their purchase of lot 10, the Sewards filled a portion of the swampy area extending from the western side of Camp Road to the open water beyond the swamp. The result was a wedge-shaped strip of land that abuts the water for about thirty feet, and is to the west of the deeded Loranger parcel. The Sewards proceeded to occupy and use the strip for access to the lake.

The Lorangers, whose property is to the north of the Seward property and on the other side of Camp Road, purchased the parcel in 1984 from Norman and Ellen Bernard. The deeded Loranger lot originally was part of a larger parcel, known as lot 9, that the Steeles conveyed to Harrington and Alice Smalley in 1954. The Steele-to-Smalley deed described the western boundary as "beginning at an iron pipe set at high water mark ... thence running in a South Easterly direction one hundred feet (100') to an iron pipe driven in edge of swamp near El. light pole...." The described "high water mark," again, was the artificial high water line which, at that time, was subject to dam operations by the Pembroke Water Company, and was on the edge of a swamp. As did the Steele-to-Seward conveyance, the Steele-to-Smalley deed stated that the conveyed property was "taken from the Jackson Philbrick lot now owned by [the Steeles]," and was silent on the subject of flowage rights.

In the 1950's, the Smalleys filled a portion of the swampy area to the west of their deeded boundary, in order to create a beach. The aggregate effect of the Smalleys' fill and fill added by the waterfront owner to their north was to shift the artificial high water line farther west, although not as far as the location of the natural high water line. The Smalleys thereafter conveyed lot 9 to their son, Harrington Smalley, Jr., stating in the deed that the conveyed property was "the same premises conveyed to [the Smalleys] by [the Steeles]."

In 1970, the younger Smalley conveyed the southern portion of lot 9 to Eric and Joan Linnell, stating in the deed that the conveyed property was "a part of the premises" conveyed to him by his parents. In contrast to the Steele-to-Smalley deed, the Smalley-to-Linnell deed described a western boundary that coincided with the "high water line," as follows: "Beginning at an iron pipe set at the high water mark ... thence running southerly along the high water line of said Lake Fifty feet (50') to an iron pipe ... near an electric light pole...." Each of the subsequent deeds for the southern portion of lot 9, including the most recent Bernard-to-Loranger deed, contained the "high water line" description of the western boundary, and stated that the conveyed property was "the same premises" conveyed to the grantor.

The conflict between the parties, which led them to file petitions to quiet title and for injunctive relief, began after the Loranger purchase in 1984, when the Sewards continued to use the filled strip, which included approximately thirty feet of lake frontage, at the same time that the Lorangers sought to use the fifty feet of frontage that they believed was theirs by deed. The Sewards also named the Steeles and the State as defendants. The Steeles defaulted, however, and the State filed a disclaimer of interest in the disputed land under RSA 498:5-c. The Sewards and Lorangers therefore were the only parties present at the consolidated trial of the petitions.

The Sewards asserted title and their consequent right to exclusive possession of the filled strip and accompanying frontage on the basis, alternatively, of (1) their adverse possession against the Steeles, who they contended are the record owners of the filled area, or (2) their purported oral agreement with previous owners of the Loranger lot, whose alleged recognition of the plaintiffs' exclusive possessory right also bound the Lorangers.

The Lorangers, in contrast, claimed title as littoral, or lakefront, owners to a parcel with fifty feet of frontage, including the Sewards' claimed frontage. In addition, they asserted the absence of a writing that confers on the Sewards any shoreline interest other than the right-of-way, and contended that the right-of-way itself is unenforceable because Steele did not own the property over which he purported to grant it. Finally, the defendants argued that the Sewards had failed to establish title to their claimed frontage through adverse possession.

The trial court determined that the Lorangers own the filled property between their deeded western boundary and the current artificial shoreline, including the Sewards' claimed frontage, and granted their request for an injunction to prevent the Sewards from entering or using the property. In reaching its decision, the court first established that the controlling artificial high water line for purposes of its decision would be the one that predominated throughout the seasonal fluctuations. Then, relying on its finding that the Lorangers, by deed, are littoral owners, the court determined that title to man-made fill vests in littoral owners, much in the way that title to natural accretion vests in riparian owners. Furthermore, in ruling on the boundaries of the Lorangers' property, the court allocated to them a forty-foot frontage reflecting their proportional share of the shoreline as diminished by the fill.

The court found that the Sewards, whose title does not encompass lake frontage, are not littoral owners. The court determined, moreover, that they had failed to establish title to their claimed frontage either through evidence of a legally enforceable written agreement or through adverse possession against the record owners of the southern portion of lot 9. The court also concluded that the Sewards lack even an enforceable right-of-way because their grantors, the Steeles, lacked title to the underlying property.

In this appeal, the plaintiffs assert error, first, in the trial court's determination that the Lorangers own the filled property that encompasses the Sewards' claimed frontage, and, second, in the trial court's refusal to grant the plaintiffs relief on the basis of alleged oral agreements regarding the filled strip. While the trial court addressed the issue of who owns the Smalley-filled property, we find that the issue at the heart of this dispute is who has, and has had, record title to the land lying under the fill that the Smalleys and the Sewards deposited. It is that issue we address now.

As a preliminary matter, we note that a petitioner in a quiet title action must prove good title as against all other interested or potentially interested persons. See RSA 498:5-a, :5-b; Sorenson v. Wilson, 124 N.H. 751, 757-58, 476 A.2d 244, 247-48 (1984). Furthermore, the interpretation of the deeds in a quiet title dispute is ultimately the province of this court, which will refer to the trial court's findings as to the parties' intentions. MacKay v. Breault, 121 N.H. 135, 139, 427 A.2d 1099, 1101 (1981) (citing Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536, 389 A.2d 940, 941 (1978)). The trial court's determination of boundary...

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    ...location. See Barton's Motel, Inc. v. Saymore Trophy Co., 113 N.H. 333, 335, 306 A.2d 774 (1973) ; see also Seward v. Loranger, 130 N.H. 570, 577, 547 A.2d 207 (1988). The court determined that Stowell was entitled to relocate the trail because the purpose of the Circle Trail "is not for ae......
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    ...1377 (1990). The interpretation of deeds in a quiet title dispute is ultimately to be resolved by this court. Seward v. Loranger, 130 N.H. 570, 574, 547 A.2d 207, 210 (1988). Our determination of disputed deeds is based on the parties' intentions gleaned from construing the language of the ......
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    ...possessor's use of the land must be exclusive. See Kellison v. McIsaac, 131 N.H. 675, 679, 559 A.2d 834 (1989) ; Seward v. Loranger, 130 N.H. 570, 576–77, 547 A.2d 207 (1988). The success or failure of a party claiming adverse possession is not determined by the subjective intent or the mot......
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