Town of Warren v. Shortt, 93-387

• Decision Date: 27 December 1994
• Docket Number: No. 93-387,93-387
• Citation: 139 N.H. 240,652 A.2d 140
• Parties: TOWN OF WARREN, v. Marjorie SHORTT.
• Court: New Hampshire Supreme Court

Page 140

652 A.2d 140

139 N.H. 240

TOWN OF WARREN, v. Marjorie SHORTT.

No. 93-387.

Supreme Court of New Hampshire.

Dec. 27, 1994.

Laurence F. Gardner, Lebanon, on the brief and orally, for plaintiff.

Law Office of David H. Bownes, P.C., Laconia (David H. Bownes and Brian P. McEvoy on the brief, and Mr. Bownes orally), for defendant.

BROCK, Chief Justice.

The defendant, Marjorie Shortt, appeals the decision of the Superior Court (Smith, J.) that the public has acquired a prescriptive easement over a road crossing the defendant's property located in the Town of Warren (town), and thus the road is a class VI public highway pursuant to RSA 229:1 (1993). We reverse.

Mica Road is a gravel road on the north side of Route 25C in the town. The road can be traced as a private right-of-way back to a reserved easement in an 1879 deed. During the first half of this century, the right-of-way benefitted and provided the only means of access to the Mica Crystal Company, which milled "grit for everything that has a gizzard" on the dominant estate. A number of businesses operated on the dominant estate and utilized the right-of-way after the Mica Crystal Company, until the late 1960s. The record does not contain any official record referring to Mica Road as a public highway of any class; in fact, the public records that were admitted at trial indicate that the road is private.

The trial court found that members of the public used Mica Road for purposes other than ingress and egress to the dominant estate, without requesting the permission of the various owners of the servient estate, specifically the defendant and the predecessors to her interest. In addition, the court found that members of the public used the right-of-way to access land abutting the dominant estate, without requesting anyone's permission. Most significantly, the trial court agreed with the town that "members of the public ... believed that Mica Road was a public road ... [and] that the public use of [the road] was in a manner sufficient to give notice to the owners of the land on which Mica Road was located that an adverse claim was being made to [it]."

The question in this case is whether the public has acquired a prescriptive easement over the road, and thus the road may be declared a class VI highway under the definition in RSA 229:1, which provides that roads used for public travel for twenty years, prior to 1968, are public highways.

On appeal, the defendant contends that the trial court erred when it ruled that she bore the burden of demonstrating that the public's use of the land for the statutory period of time prior to 1968 was permissive. She also argues that the evidence does not support the court's determination that the public use actually made of the road was adverse and of such character as to put the owners on notice of an adverse claim of right.

Whether a use of property is adverse is an issue of fact. Ucietowski v. Novak, 102 N.H. 140, 145, 152 A.2d 614, 618 (1959). We will reverse the trial court's findings and rulings only if "they are unsupported by the evidence or are erroneous as a matter of law." Zimmerman v. Suissevale, 121 N.H. 1051, 1054, 438 A.2d 290, 292 (1981).

At trial, the burden was on the town to establish by a balance of the probabilities that the public used Mica Road for twenty years, prior to 1968, in an adverse, continuous and uninterrupted manner. Ucietowski, 102 N.H. at 144, 152 A.2d at 618; see RSA 229:1. "The nature of the use must be such as to show that the owner knew or ought to have known that the right was being exercised, not in reliance upon his toleration or permission, but without regard to his consent." Ucietowski, 102 N.H. at 144-45, 152 A.2d at 618 (emphasis added).

On the issue of consent, the superior court ruled that when a prescriptive easement is claimed, and a landowner's defense to it is that the use of the property was permissive, the burden of proof is on the landowner to show that the use was permissive. We disagree.

In Wason v. Nashua, 85 N.H. 192, 155 A. 681 (1931), this court interpreted the final provision of RSA 229:1 as describing the establishment of a highway by prescription:

To establish a highway by prescription it must appear that the way was used by the general public continuously without interruption for a period of twenty years ... under a claim of right without the permission of the owner.

Id. at 198, 155 A. at 685. The "claim of right" element generally refers to the character of the use: "use of the land [claimed] in such a manner as to give notice to the record owner that an adverse claim [is] being made to it." Page v. Downs, 115 N.H. 373, 374, 341 A.2d 767, 768 (1975).

In Catalano v. Town of Windham, 133 N.H. 504, 509, 578 A.2d 858, 861 (1990), we held that a party claiming an easement by prescription must demonstrate more than a showing of public use for 20 years; the public use additionally must be shown to have been adverse. In that case, the landowner plaintiffs who sought a judgment that certain roads qualified as public highways under RSA 229:1 bore "the burden of proving by a 'balance of the probabilities' that the public used [the roads] for twenty years under a claim of right without the owner's permission." Id. at 510, 578 A.2d at 861. It is clear then, that the burden of proof on the issue of permission, at least initially, lies with the claimant.

On the other hand, in Gowen v. Swain, 90 N.H. 383, 386, 10 A.2d 249, 251 (1939), we stated that the burden of proof on the issue of permission shifted from the party claiming an easement to the party denying it once a prima facie showing of prescription had been made. "[E]vidence of acts of such a character as to warrant the inference that [the claimant] had used the way as of right for a period of twenty years or more constituted prima facie proof.... It then became necessary for the [party denying the easement] 'to come forward with evidence' that those acts were, in fact, permitted." Id. (citations omitted). If this were strictly true, the requirement of adversity as an essential element of the prescriptive easement claim would be practically eliminated.

A use of land is adverse when made under a claim of right where no right exists. Adverse use has been defined as a "[u]se without license or permission; an element necessary to acquire title or easement by prescription." Black's Law Dictionary 53 (6th ed. 1990). If a use is made pursuant to the permission of the owner of the would-be servient estate, that use cannot be adverse. In our view, the absence of permission is an element of a "claim of right," which is in turn an essential element of a claim for a prescriptive easement that the claimant must prove by a preponderance of the evidence.

The defendant next argues that the evidence does not support the trial court's finding that the public use was adverse and of such a character as to put the defendant on notice of an adverse claim. We agree.

It is well established that "[a] permissive use no matter how long or how often exercised cannot ripen into an easement by prescription." Ucietowski, 102 N.H. at 145, 152 A.2d at 618. On the other hand, an individual may establish an independent claim of right, adverse to the owner, even if another individual is using the way permissively. Blackmer v. Williams, 437 A.2d 858, 862 (Me.1981). Where, as here, a town claims to have acquired a prescriptive easement or right-of-way across a citizen's land, and that right-of-way is coterminous with a deeded easement for the benefit of another private citizen, the town must go further on the issue of adversity. When a use of another's land began under that person's permission, it cannot become adverse in nature without an explicit repudiation of the earlier permission. Taylor v. Gerrish, 59 N.H....