Kenneth J. Doerr & a. v. Philip Tuomala & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0516, Kenneth J. Doerr & a. v. Philip
Tuomala & a., the court on August 10, 2015, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioners, Kenneth J. Doerr and Evelyn M. Doerr, appeal an order of the
Superior Court (Colburn, J.) limiting their use of an easement over property
owned by the respondents, Philip Tuomala and Dawn Tuomala. We reverse.

This is the second time that these parties have come before us. A more
detailed account of the underlying facts and procedural history can be found in
our previous order, see Kenneth J. Doerr & a. v. Philip Tuomala & a., No.
2012-0598 (N.H. Dec. 3, 2013). We recite only those facts pertinent to this
appeal.

The petitioners own a parcel of land in Wilton, near another parcel owned
by the respondents. In prior litigation, the petitioners claimed that they had an
easement (Easement C) by deed that traversed the respondents’ property.
Following a bench trial, which included a view, the trial court ruled that,
although Easement C benefitted the petitioners’ property, it was a purely
personal driveway to the respondents’ home over which the petitioners had no
right of way. Given the court’s conclusion, it did not address the respondents’
adverse possession claim.

The petitioners appealed, and the respondents cross-appealed. We
affirmed the court’s ruling that the easement benefitted the petitioners’
property; however, we reversed the court’s decision that Easement C was a
purely personal driveway over which the petitioners had no deeded right of way
and remanded for the court to address the adverse possession issue.

The court held a hearing in May 2014 to address the adverse possession
issue. In addition to arguing that Easement C had been extinguished by the
respondents’ adverse possession, the respondents argued that, if the easement
were not so extinguished, the court should place reasonable restrictions upon
the petitioners’ use of the easement. In response, the petitioners argued that
the respondents’ actions were insufficient to extinguish the easement and that
the issue of reasonable restrictions was not properly before the court as the
respondents had not previously raised the issue.
 The trial court first determined that the respondents’ actions were
insufficient to extinguish the easement by adverse possession. See Titcomb v.
Anthony, 126 N.H. 434, 437-38 (1985) (explaining when easements acquired by
grant may be extinguished through adverse possession). The court then
determined that, because it had sufficient facts to decide the restrictions issue,
the petitioners’ use of Easement C was subject to the “rule of reason” and,
thus, their use could be restricted.

The court noted that there was no need for the petitioners to use
Easement C to access their property. The court also found that, because the
petitioners used their property only for recreational purposes, “[t]heir use of
Easement C is purely for recreational pleasure.” By contrast, the court found
that the respondents needed to use Easement C to access their home and that,
therefore, “they alone must maintain it to ensure that they and emergency
vehicles have access.” The court also explained that because “it is a narrow
dirt road and portions of it are at times under water[,] [b]reak downs are not
unlikely and any disabled vehicle on [it] could potentially block the limited
access that the [respondents] and any emergency vehicle have.” According to
the court, “any increased vehicular traffic could result in increased
maintenance and affect the [respondents’] own access to their home.” Because
the petitioners had “no need for access on Easement C,” the court determined
that “any vehicular use by them would greatly disadvantage the [respondents]
while not benefitting the [petitioners] in any meaningful way.”

Therefore, the court concluded that the petitioners “should be reasonably
limited in their use of Easement C to non-vehicular traffic.” The court also
decided that “as there is no need for the [petitioners] to use Easement C to gain
access to their property, use after daylight hours is only appropriate with prior
approval from the [respondents].” Accordingly, the court granted the
petitioners’ request for a permanent injunction to enjoin the respondents from
preventing their use of Easement C, but with the restrictions noted above.

The petitioners unsuccessfully moved for partial reconsideration; in its
denial of the petitioners’ motion, the court clarified that its “reference to
vehicular traffic in its prior order[] was intended to mean motorized vehicles,
not bicycles.” This appeal followed.

We observe that the respondents do not challenge the trial court’s
conclusion that their actions were insufficient to extinguish Easement C by
adverse possession. Accordingly, we address only whether the court erred by
imposing the restrictions upon the petitioners’ use of Easement C when it
granted the injunction. In doing so, we consider the transcript from the 2012
trial to be part of the record in this appeal because the trial court relied upon
it, as do the parties.

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 It is within the trial court’s sound discretion to grant an injunction after
consideration of the facts and established principles of equity. Town of
Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The decision to
grant equitable relief necessarily depends upon the factual circumstances in
each case. See Exeter Realty Co. v. Buck, 104 N.H. 199, 200 (1962). We will
uphold the trial court’s factual findings unless the evidence does not support
them or they are erroneous as a matter of law. Malborn Realty Trust, 164 N.H.
at 66. We will uphold the issuance of an injunction absent an error of law, an
unsustainable exercise of discretion, or clearly erroneous findings of fact. Id.

The petitioners first assert that “[s]everal overlapping doctrines,”
including preservation, either prohibit us, or prohibited the trial court, from
considering the respondents’ claim that the petitioners’ use of Easement C
should be restricted pursuant to the rule of reason. Alternatively, the
petitioners argue that, even if the issue was properly before the trial court and
is properly before us now, the trial court erred by imposing the restrictions.
Because we agree that the court erred by imposing the restrictions, we assume
without deciding that the issue was properly before the trial court and is
properly before us.

According to the petitioners, the trial court erred by relying upon the rule
of reason to interpret the plain and unambiguous deed granting the easement,
which provides that the petitioners “shall have . . . unlimited rights of way.”
However, this is not what the trial court did.

The rule of reason has two separate applications. We use the rule of
reason “to interpret and give reasonable meaning to general or unclear terms in
the deed language granting an easement,” but we also use it, “irrespective of
the deed language,” to “determine whether a particular use of the easement
would be unreasonably burdensome.” Heartz v. City of Concord, 148 N.H. 325,
331 (2002); see Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 766 (1986)
(noting that “an easement created by deed is always limited to a reasonable
use”).

Here, the trial court used the rule of reason only to evaluate the use of
the easement. The petitioners do not challenge the trial court’s use of the rule
of reason for this purpose. Accordingly, we uphold the trial court’s use of the
rule of reason. See Flanagan v. Prudhomme, 138 N.H. 561, 574 (1994) (noting
that even “[a]n unrestricted right-of-way is subject to a determination of
reasonable use”); Delaney v. Gurrieri, 122 N.H. 819, 821 (1982) (“The doctrine
of reasonable use applies even to a right-of-way expressly conveyed, without
restrictions.”).

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 The petitioners next argue that, even if the rule of reason applies, the
trial court erred by imposing the use restrictions. The respondents counter
that the court did not so err because the restrictions are reasonable and are
supported by the evidence.

The rule of reason provides that the rights of the parties to a right of way
are questions of fact that must be determined in light of the surrounding
circumstances, including the location and uses of both parties’ property, and
by taking into consideration the advantage of one owner’s use and the
disadvantage to the other owner caused by that use. Titcomb, 126 N.H. at
438-39. We will not overturn the factual findings of the trial court, particularly
when aided by a view of the property in question, when they are supported by
the evidence. Arcidi v. Town of Rye, 150 N.H. 694, 702 (2004).

Here, the restrictions that the trial court imposed upon the petitioners’
use of the easement were not based upon evidence in the record about their
actual or intended use of the easement. Indeed, the respondents concede that
the petitioners have only used the easement once. There is no evidence that
when the petitioners used the easement the one time they blocked the
easement, obstructed the respondents’ access to their home, or required the
respondents to incur increased maintenance costs. Nor is there evidence that
the petitioners intend to use the easement in such a manner as to cause any
such problems for the respondents.

Instead, the trial court based its restrictions upon the respondents’
conjecture and speculation about the petitioners’ potential future use of the
easement. For instance, the respondents speculated that increased traffic
through the easement would impair their enjoyment of it and increase their
costs to maintain it. They also speculated that disabled vehicles could block
their access to their home and could block the access of emergency vehicles.
The respondents’ speculation and conjecture is insufficient, as a matter of law,
to support the restrictions that the trial court imposed upon the petitioners’
use of the easement. See State v. Pessetto, 160 N.H. 813, 818 (2010) (noting
that State’s speculation “is not evidence”); In the Matter of Donovan &
Donovan, 152 N.H. 55, 59 (2005) (vacating trial court’s order modifying father’s
monthly child support obligation because court relied upon father’s
speculation, which was unsupported by any evidence, regarding mother’s
employment).

Accordingly, we conclude that the trial court unsustainably exercised its
discretion by imposing the restrictions upon the petitioners’ use of Easement
C, and we, therefore, reverse its ruling imposing those restrictions. We
observe, however, that if the petitioners’ actual use of the easement becomes
unreasonably burdensome without the restrictions in place, the respondents
may, at that time, petition the court for relief. See Arcidi, 150 N.H. at 702

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(“What is or is not a reasonable use of an easement does not become
crystallized at any particular moment of time.”). Given our decision, we need
not address the petitioners’ remaining arguments.

Reversed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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