State v. Tallman

• Decision Date: 19 December 1994
• Docket Number: No. 93-336,93-336
• Citation: 652 A.2d 134,139 N.H. 223
• Parties: The STATE of New Hampshire v. Shirley D. TALLMAN.
• Court: New Hampshire Supreme Court

Page 134

652 A.2d 134

139 N.H. 223

The STATE of New Hampshire v.Shirley D. TALLMAN.

No. 93-336.

Supreme Court of New Hampshire.

Dec. 19, 1994.

Jeffrey R. Howard, Atty. Gen. (Jennifer J. Patterson, Asst. Atty. Gen., on the brief and orally), for State.

Duffy and Laufer, Manchester (Daniel A. Laufer, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, Shirley Tallman, appeals an equitable decree of the Superior Court(Hollman, J.) ordering the defendant to remove her buildings from the State's flood easement, which covers a major portion of her property.The defendant claims that injunctive relief is inequitable under the circumstances, and that the doctrine of laches bars the State's claim.We affirm.

In 1968, Royden C. Sanders, Jr., the defendant's predecessor in title, deeded a perpetual flood easement to the New Hampshire Water Resources Board(WRB), a State agency.This easement allows the State, at times of high water, to flow water onto the defendant's property up to 849 feet above sea level, and to temporarily store flood water there.Sanders released the State from liability for any damages caused by flowage.The easement was properly recorded.The defendant purchased the property in 1986.She had no actual notice of the easement's existence.

Three structures on the defendant's property have foundations within the State's easement: a house, a shed, and a barn.The defendant resides in the house and uses the shed and barn in her horse training business.The structures were built by a previous owner who succeeded Sanders in title.This owner was aware of the flood easement.

In 1987, proper operation of the State's Souhegan Dam caused flooding on the defendant's property.As a result of this flooding, the defendant first learned of the WRB's easement, and the WRB first learned of the encroachments on its easement.

Soon after the flood, the WRB sent the defendant a cease and desist order directing her to remove her buildings from the easement.The defendant requested a postponement allowing her time to sue her title insurance company and predecessors in title for their failure to disclose the easement's existence.The WRB agreed to defer enforcement of the order.The trial court found that "the State was cooperative enough to delay filing the instant action until the suit against her title insurance company and the other defendants therein was finally resolved."

In 1990, the defendant settled her litigation against the title company and her predecessors in title for $190,000.Shortly thereafter, the State sought to enforce the order, but the defendant refused to comply.Thus the State sought and obtained a permanent injunction preventing the defendant from operating her horse farm in the easement and forcing her to remove the buildings.This appeal followed.

On appeal, the defendant advances two arguments.First, the defendant argues that the trial court erred in its assessment of the relative harms that would follow an injunction's issuance or denial.Second, the defendant argues that the State's claim should be barred by laches.

We first address the defendant's argument that an injunctive remedy is unjust under the circumstances.The trial court, in a detailed decree, contemplated the various harms associated with injunctive relief and found that the equities favored granting the injunction.This court upholds such findings unless they are unsupported by the evidence or erroneous as a matter of law.UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14, 533 A.2d 372, 374(1987).

The evidence supports the trial court's determination that an injunction is required to prevent great harm to the State.At trial, witnesses testified that the State bought the easement in order to prevent death and property damage.Such evidence...