Town of Weare v. Paquette's Estate
| Decision Date | 05 August 1981 |
| Docket Number | No. 80-323,80-323 |
| Citation | 121 N.H. 653,434 A.2d 591 |
| Parties | TOWN OF WEARE v. ESTATE OF Arthur W. PAQUETTE et al. ESTATE OF Arthur W. PAQUETTE et al. v. Alice EDMUNDS et al. |
| Court | New Hampshire Supreme Court |
John E. Palmer, Jr., Weare, by brief and orally for Alice Edmunds.
Hatfield & Henderson, P. A., Antrim (Lloyd N. Henderson, Antrim, on brief and orally), for Douglas S. Hatfield, Jr.
This appeal involves two separate actions to determine the rights of the various parties to a parcel of land in Weare. The parcel is roughly triangular, bounded on the east by Route 77 and on the west by Oak Hill Road, with the two highways coming together to form an inverted "Y" at the north end of the property. At the apex of the triangle on the north end of the property are a house and connected barn.
In 1944 Bertha Butler acquired the property in question and lived there until she died in 1974. Attorney Douglas Hatfield was appointed administrator of the estate. The property was put up for sale at a public auction held on October 14, 1974, and was ultimately purchased by Arthur and Marguerite Paquette. Sometime prior to the signing of the purchase-and-sale agreement, Alice Edmunds contacted Attorney Hatfield to inform him that she owned an unspecified portion of the property.
Alice Edmunds lives in a schoolhouse that lies at the south end of the property. The school was built sometime in the mid-nineteenth century, but there was no evidence of any conveyance to the Weare school district. The school was closed before 1933, and from 1934 to 1942 Mrs. Edmunds and her now deceased husband leased the schoolhouse from the Town of Weare. In 1942, the Edmundses purchased the building from the Weare school district, receiving a quitclaim deed that conveyed the "Dearborn Village School-House ... with all the privileges and appurtenances thereunto belonging ...."
Because the extent of Mrs. Edmunds' interest in the property was undetermined, the Paquette purchase-and-sale agreement was modified by excluding "the School House Lot," and by adding provisions that the seller would guarantee a marketable title and have the boundaries established. The question of Mrs. Edmunds' interest in the property was never resolved, and Attorney Hatfield conveyed the property to the Paquettes by fiduciary deed dated November 15, 1974, using the description in the deed by which Bertha Butler had acquired title.
Shortly after the Paquettes purchased the property, they placed a series of obstructions in a gravel roadway at the north end of the lot that had been used as a cut-off between Route 77 and Oak Hill Road. In response, the Town of Weare brought a petition to enjoin the Paquettes from obstructing the cut-off, which the town claimed was a public right-of-way by prescription. The Paquettes then brought a petition to quiet title against Alice Edmunds and Attorney Hatfield.
The two actions were consolidated for trial in the superior court. After a three-day trial, which included a view, the Master (Charles T. Gallagher, Esq.) issued a report in which he made certain findings of fact and recommended that the court issue a decree enjoining the Paquettes from interfering with the public right-of-way in the cut-off, quieting title in a parcel of land known as the "Schoolhouse Lot" in Alice The Paquettes filed a motion to set aside the verdict, upon which the master held a hearing. The master issued a second report, proposing certain amendments to the initial report and recommending that the motion be denied. Bean, J., approved that report. The Paquettes then brought this appeal.
Edmunds, dismissing the Paquettes' and Edmundses' claims for damages against each other, and rendering judgment for Douglas Hatfield. The Superior Court (Flynn, J.) approved the master's report and entered a decree in accordance with it.
We first consider the Paquettes' arguments concerning the master's finding that the cut-off was a public right-of-way established by prescription. They argue that there is insufficient evidence to support the master's finding. We disagree.
In order to establish a prescriptive right-of-way, the town was required to show "twenty years' adverse, continuous, uninterrupted use of the land ..." in question. Arnold v. Williams, 121 N.H. ---, ---, 430 A.2d 155, 156 (1981); Williams v. Babcock, 116 N.H. 819, 823, 368 A.2d 1166, 1170 (1976). No less than five long-time residents of the Town of Weare testified that they had used the cut-off themselves and had observed others use it since at least 1934 and that the road had never been closed to the public until the Paquettes erected barriers in 1975. Several of the residents also testified to town maintenance of the cut-off. This evidence supports the master's finding that the cut-off had become a public way by prescription by the time the Paquettes tried to block its use.
The Paquettes do not seriously dispute that there has been twenty years' continuous and adverse use of the cut-off but rather argue that there is insufficient evidence to establish the exact location of the right-of-way. In support of that contention, they rely on the testimony of Weare's road agent from 1960 to 1975, who stated that sometime in the late 1960's or early 1970's he did road work on the cut-off and, by agreement with Mrs. Butler, moved the original path. They also cite the master's equivocal finding that, "(t)he location of the old cut-off is not readily apparent, but ... it probably lay within the area described in the recommended decree."
It is true that in order to establish a highway by prescription the town was required to show public use along a definite and specific line of travel. 39A C.J.S. Highways § 6 (1976); 2 G. Thompson, Commentaries on the Modern Law of Real Property § 342, at 214 (1980). But slight deviations in the line of travel do not defeat the town's claim. 39A C.J.S. Highways § 6 (1976); cf. Hoban v. Bucklin, 88 N.H. 73, 79, 184 A. 362, 366 (1936). The Paquettes have not alleged, nor is there any evidence in the record, that the public's line of travel deviated substantially in the period between the early 1930's and the 1960's. By 1960 the public's right to use the cut-off had already been established. See RSA 230:1. The location of the road was changed after that time by agreement with Mrs. Butler, then the owner of the property. The Paquettes are estopped from challenging the location of the cut-off, based upon their predecessor in title's agreement. See 39A C.J.S. Highways § 6 (1976).
The Paquettes also allege that the master erred in admitting into evidence a 1907 photograph showing the cut-off which could not be authenticated and which did not show the location of the cut-off in relation to the house. Assuming arguendo that admission of the photograph was error, such error was not prejudicial because the evidence was merely supportive or cumulative. Accordingly, we find that the master's determination that the cut-off was a public way established by prescription is supported by the evidence and not erroneous as a matter of law. See Summit Electric, Inc. v. Pepin Brothers Const., Inc., 121 N.H. ---, ---, 427 A.2d 505, 507 (1981).
We next consider the Paquettes' appeal of the trial court's decree quieting title to the "Schoolhouse Lot" in Mrs. Edmunds. The court's decree was based on the master's finding that Mrs. Edmunds had gained title to the lot by adverse possession. Accordingly In order to sustain her claim of title by adverse possession, Mrs. Edmunds was required to show twenty years' "adverse, continuous, uninterrupted use of the land" she claimed. Hewes v. Bruno, 121 N.H. 32, 30, 424 A.2d 1144, 1145 (1981) (quoting Page v. Downs, 115 N.H. 373, 374, 341 A.2d 767, 768 (1975)). She was required to show that the nature of her use was sufficient to put the owner on notice that an adverse claim was being made to the property. Id. The record demonstrates that, from 1942, the Edmundses treated the property as if it were their own. They maintained the premises, made improvements, and even purchased an adjacent parcel of land on which to build a garage. The Weare road agent testified that when he did construction work on Oak Hill Road in the late 1960's he asked Mr. Edmunds' permission about changes to his driveway. Mrs. Butler's niece, Katherine Samuels, testified that her father, Mrs. Butler's predecessor in title, asked permission of the Edmundses to plant a garden in an area between the schoolhouse and the Butler house. All of that evidence reinforces the master's finding that, from 1942 t...
To continue reading
Request your trial
-
State v. Shannon
...for the trial court and we will uphold the court's determination unless it is clearly erroneous. See Town of Weare v. Paquette, 121 N.H. 653, 659, 434 A.2d 591, 596 (1981). At trial, the State had to convince the jury that the defendant, who was wearing a blue tee shirt and blue jeans when ......
-
In re Spenard
...534. Its discretion likewise includes whether to reopen a matter based upon newly-discovered evidence. See Town of Weare v. Paquette's Estate, 121 N.H. 653, 660, 434 A.2d 591 (1981) ; Bricker v. Sceva Speare Mem'l Hosp., 114 N.H. 229, 231, 317 A.2d 563 (1974). We will not overturn a trial c......
-
State v. Winders
...court to determine, and we will not disturb its determination unless we find it to be clearly erroneous. Town of Weare v. Paquette, 121 N.H. 653, 659, 434 A.2d 591, 596 (1981) (citations omitted). An extrajudicial statement will not be excluded from evidence by the hearsay rule if the decla......
-
In re King
...discretion, we find that the admission of Reyes' statement was an unsustainable exercise of discretion. See Town of Weare v. Paquette, 121 N.H. 653, 659, 434 A.2d 591 (1981) ; State v. Lambert, 147 N.H. 295, 297, 787 A.2d 175 (2001). Reyes' absence denied the petitioner any opportunity to t......