Lise deLongchamp v. Armand Poirier & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0433, Lise deLongchamp v. Armand
Poirier & a., the court on April 1, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Lise deLongchamp, appeals the order of the Superior Court
(Nicolosi, J.), following a bench trial, denying her claim of adverse possession to
property owned by defendant Armand Poirier. She argues that the trial court
erred in: (1) finding that her use of the property was insufficient to give notice
of her adverse claim; and (2) precluding testimony regarding the belief of a
predecessor in title as to the location of the boundary.

The plaintiff first argues that the court erred in finding that her use of
the disputed area was insufficient to give notice of her adverse claim. To
acquire title by adverse possession, the possessor must show twenty years of
adverse, continuous, exclusive, and uninterrupted use of the land claimed so
as to give notice to the owner that an adverse claim is being made. Blagbrough
Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007). “The law
requires more than occasional, trespassory maintenance in order to perfect
adverse title; the use must be sufficiently notorious to justify a presumption
that the owner was notified of it.” Id. at 34. “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 v. Novak, 102 N.H. 140, 144-45
(1959). We review the trial court’s application of law to the facts de novo, and
we defer to its factual findings if they are supported by the record. Blagbrough,
155 N.H. at 33.

In its order, the trial court relied primarily upon our holding in
Blagbrough. In Blagbrough, the trial court found that members of the
Blagbrough family:

(1) tore down a dilapidated boathouse; (2) routinely entered the
subject parcel for walks and other recreational activities;
(3) permitted their children to play on the parcel; (4) used the
parcel as a source of Christmas trees; and (5) cut grass, removed
trees, and planted some flowers on the parcel.
See Blagbrough, 155 N.H. at 33. We reversed the trial court’s determination
that the plaintiff had proven adverse possession and concluded that, as a
matter of law, the activities of the Blagbrough family were insufficient to obtain
title by adverse possession. See id. at 34. Here, the trial court found that
“[t]he acts in this case are qualitatively and quantitatively no greater than those
considered in Blagbrough.” We agree.

The record in this case shows that the area in dispute is a grassy portion
of the defendant’s property that the plaintiff has been using as a “side yard” for
her property since 1988. The defendant’s parcel, 317 acres of undeveloped
land, is wooded except for the grassy area in dispute. The plaintiff testified
that when she purchased her property, the house had not been occupied for
some years, and the disputed area “was overgrown grass.” The plaintiff
testified that she “cut the grass down” and removed debris, including “empty
cans, empty bottles and farm debris.” The plaintiff continued to maintain the
side yard for more than twenty years. Her children, who were six and eleven
years old when she purchased the property, played in the side yard until they
graduated from high school. The plaintiff hung a tree swing from the branch of
a willow tree in the area. She also used a clothesline that had been installed in
the disputed area before she purchased her property. For the past ten years,
the plaintiff has planted fruit trees in the disputed area, and she has installed
an apiary.

The plaintiff also planted grass over a leach field, which had been
covered with sand. Shortly before the plaintiff purchased her property, her
predecessor in title had mistakenly installed the leach field on the defendant’s
property. The defendant’s predecessor in title resolved this issue by giving the
plaintiff’s predecessor in title an easement to maintain the leach field. This
allowed for the sale of the property to the plaintiff. “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.” Town of Warren v.
Shortt, 139 N.H. 240, 244 (1994). The trial court found that the plaintiff’s use
of the leach field area has always been with permission, and the plaintiff does
not challenge this finding on appeal.

The plaintiff argues that her actions were sufficient to give the defendant
notice of her adverse claim mainly because she regularly maintained the lawn
in the side yard. Without such maintenance, she asserts, the area would have
reverted to woodlands. We have noted, however, that “existing rights in land
should not be lost unless the owner has been put on guard sufficiently to
enable him or her to take preventive action with reasonable promptness.”
Mastroianni v. Wercinski, 158 N.H. 380, 383 (2009) (quotation omitted). In
this case, the area in dispute was a lawn before the plaintiff acquired her
property. The plaintiff admitted that she did not expand the size of the lawn,
permanently alter the land, or install permanent structures.

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 Moreover, the plaintiff’s use was not exclusive. See Blagbrough, 155
N.H. at 33 (noting exclusivity requirement). Over the years, the defendant
walked the boundary of his property on several occasions, and there was no
evidence that the plaintiff took any action to prevent him or anyone else from
using the area. Accordingly, we conclude that the record supports the trial
court’s determination that the plaintiff’s actions were insufficient to give the
defendant notice of her adverse claim. See id.; Mastroianni, 158 N.H. at 383.

The plaintiff next argues that the trial court erred in precluding her from
testifying regarding the belief of a predecessor in title as to the location of the
boundary line. The admissibility of evidence is generally within the discretion
of the trial court, and we will uphold its rulings unless the exercise of its
discretion is unsustainable. N.H. Ball Bearings v. Jackson, 158 N.H. 421, 431
(2009). Under this standard, the plaintiff must demonstrate that the trial
court’s ruling was clearly untenable or unreasonable to the prejudice of her
case. Id. The trial court precluded the testimony on the basis that it was
hearsay and not relevant. Even assuming, without deciding, that the
testimony was admissible under an exception to the hearsay rule, the plaintiff
has failed to explain its relevance to her adverse possession claim.
Accordingly, we cannot conclude that the trial court unsustainably exercised
its discretion in precluding the testimony. See id.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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