Titcomb v. Anthony

• Decision Date: 19 April 1985
• Docket Number: No. 84-209,84-209
• Citation: 126 N.H. 434,492 A.2d 1373
• Parties: David R. TITCOMB et al. v. Doris V. ANTHONY.
• Court: New Hampshire Supreme Court

Page 1373

492 A.2d 1373

126 N.H. 434

David R. TITCOMB et al. v.Doris V. ANTHONY.

No. 84-209.

Supreme Court of New Hampshire.

April 19, 1985.

Hatfield & Bosse P.A., Hillsborough (Leigh D. Bosse, Hillsborough, on the brief and orally), for plaintiffs.

Brown & Nixon P.A., Manchester (Frank E. Kenison, Manchester, on brief and orally), for intervenors, George and Ruth Tewksbury.

Brighton, Fernald, Taft & Hampsey P.A., Peterborough (Silas Little, III, Peterborough, on brief and orally), for defendant.

BROCK, Justice.

At issue in this case is the status of an easement for a right of way over the defendant's land.The Master (Charles T. Gallagher, Esq.), whose report was approved by the Superior Court(Flynn, J.) on March 29, 1984, found that an easement by grant had once existed, but that the easement had been extinguished by adverse possession.We hold that on the evidence in the record no more than a partial extinguishment of the easement could have occurred, and we accordingly reverse and remand the case to the trial court.

From 1939 until 1945 both the plaintiffs' and the defendant's property belonged to the intervenors in this case, the Tewksburys.In 1945 the Tewksburys conveyed the more southerly of the two parcels, which abuts West Main Street in Hillsborough, to the defendant's predecessor in title.The deed was made subject to an easement creating a right of way between West Main Street and the northerly parcel.

The reserving clause, which duplicated a similar clause in an earlier deed to the property, read in part as follows: "The said grantors reserve unto themselves and those claiming under them a right of way over the above described premises in going to and from said Main Street and said other land of the said grantors.Said right of way may be used for any and all purposes."No more explicit description of the right of way is given.

The two parcels of land are separated by a stone wall.There is a barway, or gap, in the wall about 24 feet wide.Over the years, trees have grown up near the barway making it difficult for any vehicle to pass through it, but they are not an impediment to pedestrians.

The defendant(with her husband, now deceased) purchased the southern parcel in 1952, subject to the right of way.Throughout the ensuing 33 years, she has cultivated extensive vegetable gardens on the property, along with large numbers of berry bushes and fruit trees.

It is undisputed that, from at least 1952 until the present, there has been no evidence on the ground of the right of way described in the deeds, other than the barway in the stone wall.Nevertheless, there was evidence that Mr. Tewksbury had walked across the southern parcel to reach the northern parcel on several occasions before he and his wife sold the northern parcel to the plaintiffs in 1983.

Shortly after buying the land, the plaintiffs filed with the Hillsborough Planning Board a proposal to build multiple-family housing on the northern parcel.Part of this proposal contemplated the use of the right of way over the defendant's land for vehicular access to the new housing.The defendant thereupon notified the planning board that there was no right of way over her land.

The plaintiffs then initiated this action.They sought an order enjoining the defendant from interfering with the right of way, as well as money damages for alleged past interference.In her answer, the defendant did not deny that a right of way had once existed, but argued that the right of way had been "extinguished through adverse possession and/or abandonment."

The master found that the Tewksburys had "exercised their rights, albeit infrequently and on foot," to use the right of way on various occasions since 1945.He accordingly ruled that there was no intent to abandon the right of way.He held, however, that the defendant's use of her land constituted possession adverse to the existence of the right of way, and that the easement had therefore been extinguished after twenty years of such possession.The plaintiffs appealed.

The master's finding that the Tewksburys had not abandoned the easement was proper.It was not necessary for the plaintiffs to show that the Tewksburys had used the easement.Howard v. Britton, 67 N.H. 484, 487, 41 A. 269, 270(1893).Abandonment of an easement must involve "clear, unequivocal, and decisive acts" by the owner of the dominant estate, Gagnon v. Carrier, 96 N.H. 409, 411, 77 A.2d 868, 870(1951), "manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence."Parsons v. New York, New Haven, & Hartford R.R., 216 Mass. 269, 272, 103 N.E. 693, 695(1913).There was no evidence that any such acts occurred in this case.Even if the master credited the defendant's testimony that Mr. Tewksbury verbally asked her permission before walking across her land, such a request is not the kind of act contemplated by Gagnon.Thus, had evidence refuting this testimony been excluded, as the defendant argues it should have been, the defendant could not have met her burden of proving abandonment.

It is well established that an easement acquired by grant may be extinguished through continuous adverse possession for a period of twenty years.Howard v. Britton, 67 N.H. 484, 487, 41 A. 269, 270(1893).Anyone claiming adverse possession must "show that the...