Vi B. McNeill v. Nancy W. Barrett, Trustee of the Nancy W. Barrett Revocable Trust

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0017, Vi B. McNeill v. Nancy W. Barrett,
Trustee of the Nancy W. Barrett Revocable Trust, the court on
July 7, 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 intervenor, Nancy W. Barrett, as successor trustee of the Benning
Family Trust (easement holder), appeals an order of the Superior Court (Fauver,
J.) granting a motion by the petitioner, Vi B. McNeill (owner), to enforce a partial
settlement stipulation and order (stipulation). She contends that the trial court
erred by: (1) not finding that she retained her common law rights to “maintain
and improve the easement to the extent necessary” to make it reasonably useable
for its intended purpose; (2) denying her request to add such language to the
easement deed; (3) compelling her to accept an easement deed that her counsel
did not accept; and (4) leaving her with an easement that is not reasonably
useable for its intended purpose.

We review a trial court’s interpretation of a settlement agreement creating
an easement de novo, Crowley v. Town of Loudon, 162 N.H. 768, 771 (2011),
mindful of the strong public policy favoring the settlement of civil matters, Hogan
Family Enters. v. Town of Rye, 157 N.H. 453, 456 (2008). When interpreting an
agreement, we give the language used by the parties its reasonable meaning,
considering the circumstances and the context in which the agreement was
negotiated, reading the document as a whole, Crowley, 162 N.H. at 771, and
recognizing that the law may imply supplemental rights in an easement deed,
Village Green Condo. Ass’n v. Hodges, 167 N.H. 497, 500 (2015). We base our
interpretation upon the trial court’s findings of fact to which we will defer if they
are supported by the evidence and not legally erroneous, Crowley, 162 N.H. at
771-72, particularly when they are aided by the trial court’s view of the property,
Flanagan v. Prudhomme, 138 N.H. 561, 574 (1994).

The easement holder argues that the trial court erred in compelling her to
accept a deed that did not explicitly reserve her common law right to maintain
and improve the easement. See Village Green, 167 N.H. at 502 (recognizing
general rule that, unless modified by agreement, dominant estate has right to
maintain easement). She contends that, after executing the stipulation, she
retained “all common law use rights to modify the subject easement in order to
render the easement reasonably suitable for its intended purpose” because the
stipulation is “silent with respect to . . . [her] loss of common law use rights.”
 Far from being silent, the stipulation specifies that “[t]he parties retain all
of their common law rights as to any future claims as to matters which are not
the subject of the pending litigation.” In accordance with the familiar doctrine of
expressio unius est exclusio alterius (“the mention of one thing excludes
another”), the inclusion of this exception evinced the intent to exclude the
retention of all other common law rights. Cf. Village Green, 167 N.H. at 504
(stating lack of language in easement deed regarding obligation to maintain
easement did not evince parties’ intent to relieve dominant estate from common
law duty to maintain easement).

The easement holder argues that this provision is inapposite because “[n]o
part of the litigation sought to limit [her] common law use rights in the
easement.” However, the stipulation provides that it “fully resolves the dispute
between the parties over the precise location and scope of” the easement. The
reference to the “scope” of the easement necessarily indicates that the easement
holder’s implied rights related to the use of the easement were at issue in the
litigation.

Furthermore, the stipulation requires the owner to “cause all vegetation to
be removed from the . . . easement . . . . to ground level” and “maintain [the]
easement clear of vegetation that would impede or obstruct the use of the
easement.” This provision is inconsistent with the common law right of the
dominant estate holder to maintain an easement. See id. at 502 (stating that,
unless terms of servitude provide otherwise, dominant estate has duty to
maintain easement). We note that the stipulation is silent as to any
improvements to the easement.

To the extent that the easement holder relies upon Village Green, that case
is inapposite. In that case, the issue was whether an express provision that the
dominant estate had the right to maintain the easement negated its common law
duty to do so, and our holding relied upon the absence of “a contrary agreement
in the deed regarding the obligation to maintain and repair the easement.”
Village Green, 167 N.H. at 504. In contrast, in the case before us, the parties
agreed to limit their common law rights and obligations. Indeed, the stipulation
requires the owner to “cause all vegetation to be removed from the . . . easement
. . . . to ground level” and to “maintain [the] easement clear of vegetation that
would impede or obstruct the use of the easement.” This provision contradicts
the common law obligation of the dominant estate to maintain an easement. See
id. at 502.

To the extent that the easement holder argues that she took “by
implication whatever rights are reasonably necessary to enable [her] to enjoy the
easement . . . including the right to make improvements that are reasonably
necessary to enjoy the easement,” Arcidi v. Town of Rye, 150 N.H. 694, 701
(2004), such implication can be limited by the terms of an agreement. See Village
Green, 167 N.H. at 501, 502 (quoting 28A C.J.S. Easements § 226, at 444 (2008)
and Restatement (Third) of Property: Servitudes § 4.13, at 631–32 (2000)). To the
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extent that the easement holder argues that she did not intend to relinquish her
common law rights, we determine the intent of parties to an agreement based
upon objective standards, rather than on their subjective, un-manifested states
of mind. C & M Realty Trust v. Wiedenkeller, 133 N.H. 470, 476 (1990).

The easement holder argues that, pursuant to the stipulation, she was
entitled to an easement deed that was “acceptable” to her counsel, but that the
proffered deed, which did not explicitly provide her with the rights to “maintain
and improve the easement,” was not. Given that the proffered easement deed
reflected the stipulation’s provisions, the fact that the easement holder’s attorney
withheld approval is irrelevant.

The easement holder contends that the language that she sought to add to
the easement deed did not alter the stipulation because “[t]he requested deed
language was not contrary to or inconsistent with anything in the parties’
agreement, which does not take away [her] common law rights.” On the contrary,
we conclude that the stipulation supplants the easement holder’s common law
rights.

To the extent that the easement holder contends that the owner’s removal
of vegetation, alone, results in an easement that is “unsuitable for its intended
purpose of transporting a small boat to Little Bay,” we note the limited nature of
the issue before the trial court. The trial court was asked to enforce a settlement
stipulation and to compel the easement holder to accept a deed offered in
accordance with that stipulation. It was not asked to determine whether further
improvements are reasonably necessary to make the easement useable for its
intended purpose. On that question, we express no opinion.

We emphasize, however, that “[a] dominant estate holder is entitled to the
reasonable use of an appurtenant easement,” Arcidi, 150 N.H. at 700, and to
whatever improvements may reasonably be necessary to enable the dominant
estate holder to enjoy the easement beneficially, see id. at 701. Nothing in the
stipulation deprives the easement holder of her right to reasonably use the
easement in accordance with its intended purpose. See Thiem v. Thomas, 119
N.H. 598, 604 (1979) (declining to construe contract in manner that leads to
harsh and unreasonable results or places one party at the mercy of the other).
We express no opinion as to which party may be responsible under the terms of
the stipulation to make improvements if, in fact, the easement is not reasonably
useable for its intended purpose. See Arcidi, 150 N.H. at 700, 701.

Affirmed.

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

Eileen Fox,
Clerk

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