A three-justice panel of the New Hampshire Supreme Court (the “Court”) recently issued a non-precedential order resolving a dispute between adjacent property as to ownership and easement rights of a strip of land labeled driveway and passway on the deeds and property plans. In Spear v. Waite, No. 2022-0063 (N.H. Aug. 24, 2023) (non-precedential), the panel affirmed lower court decisions that concluded the plaintiffs held only an access easement to the strip of land and that the easement did not permit them to plant decorative groundcover on the strip or otherwise treat it as an extension of their front yard.
Jeffrey Spear and Jennifer Kernan (“Plaintiffs”) appealed from lower court decisions that concluded a strip of land that abuts the property of Plaintiffs and Richard and Heidi Waite (“Defendants”) was owned by the Defendants and that the Plaintiffs’ easement rights did not permit them to plant decorative groundcover on the strip.
The Plaintiffs and Defendants lived on neighboring properties in Concord. A 30-feet wide strip of land ran along the front of Plaintiffs’ property and contained a shared driveway, as well as grassy areas. Both parties’ deeds purported to grant a “pass and repass” easement over the strip. A dispute erupted in 2015 after the Plaintiffs planted decorative groundcover in a grassy area of the strip and the Defendants removed the plantings. The Plaintiffs then filed a petition for quiet title and the Defendants cross-filed, both seeking a declaration, and later summary judgment, as to ownership of the parcel.
The record included a summary of the relevant deed history dating back to the early 1900s, with the strip of land being described as a passway. The Plaintiffs did not claim that their deed conveyed title to them in the land but argued that the relevant deed did not convey title to Defendants. In response, the Defendants cited the deed history and long accepted surveying practices of using a line on a plan to depict separate property rights. Based on that and because the property-development plans showed the passway and driveway areas as a single parcel of land, they argued the deeds indeed conveyed title to Defendants. The trial court ruled that the Defendants owned the parcel.
The parties also disputed the scope of Plaintiffs’ easement to use the parcel. The trial court concluded that the Plaintiffs’ installation of a stone walkway was permissible, because it was consistent with the “right to pass and repass” easement. However, installation of groundcover plants was decorative and thus not reasonably and necessary for the access easement. The Plaintiffs appealed to the Supreme Court.
The Supreme Court reviewed the trial court’s summary judgment rulings, stating it would affirm if the record showed no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Noting the Plaintiffs had raised four arguments for error by the trial court, the Court reviewed the deed history and concluded that certain inconsistencies revealed a latent ambiguity as to ownership of the parcel, and thus required consideration of extrinsic evidence.
The Court then considered the surveying standard of using a line to show separate property rights and the deed history, finding that the references to passway and driveway supported the trial court’s conclusion that they comprised a single contiguous parcel that the deeds purported to convey to Defendants. Next, the Court considered evidence that the Defendants’ predecessor in title had stated her understanding that she did not own the strip but found it did not create a factual issue. Accordingly, the Court affirmed the lower court’s conclusion that the parcel was owned by Defendants.
Additionally, the Plaintiffs argued that the portion of the parcel that abutted the front of their property was essentially an extension of their front yard and that having a landscaped front walk furthered the purpose of the easement. The Court again upheld the trial court’s conclusion that the decorative groundcover was not necessary to serve the purpose of a “pass and repass” easement that did not include aesthetic rights. Moreover, the Court was not convinced by the Plaintiffs’ arguments that the plantings were consistent with the owners of their property having historically engaged in activities like mowing grass, raking leaves and removing snow and ice along the easement. Those maintenance activities did not change the fact that decorative plantings were not necessary to or consistent with the easement.
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