Elizabeth Merry, Trustee of the Elizabeth H. Merry 2012 Revocable Trust v. Gilbert M. Costa & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0393, Elizabeth Merry, Trustee of the
Elizabeth H. Merry 2012 Revocable Trust v. Gilbert M. Costa &
a., the court on April 6, 2017, 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, Elizabeth Merry, Trustee of the Elizabeth H. Merry 2012
Revocable Trust, appeals the order of the Superior Court (Ignatius, J.),
following a bench trial and a view, denying her claims against the defendants,
Gilbert M. Costa and Natalie M. Costa, Co-Trustees of the Gilbert M. Costa
Revocable Trust of 2011, for adverse possession and a prescriptive easement
over the defendants’ property. The plaintiff argues that the trial court’s
findings—that her predecessors’ use of the disputed area was permissive and
not exclusive—were against the weight of the evidence.

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).
To establish a prescriptive easement, the plaintiff must show twenty years of
continuous, adverse use. Bonardi v. Kazmirchuk, 146 N.H. 640, 642 (2001).
Whether the use of property is adverse is an issue of fact. Id. at 643. “We will
reverse the trial court’s findings and rulings only if they are unsupported by
the evidence or are erroneous as a matter of law.” Id. (quotation omitted). The
trial court’s findings are within its sound discretion, particularly when, as in
this case, the court has taken a view of the property. See Sleeper v. Hoban
Family P’ship, 157 N.H. 530, 537 (2008). The credibility and weight to be given
to the witnesses’ testimony is a question of fact for the trial court. Blagbrough,
155 N.H. at 33. “If the findings can reasonably be made on all the evidence,
they must stand.” Id. (quotation omitted).

One of the plaintiff’s predecessors, Craig Markert, testified that, for a
number of years, he lived “almost across the street” from the plaintiff’s
property, which was owned by his in-laws from 1984 to 1999. Markert testified
that, starting in 1984, he did all the yard maintenance for his in-laws, and that
he was on the plaintiff’s property “[a]nywhere from weekly to every other day.”
The defendants’ predecessor, Paul Tardif, owned the defendants’ property from
1984 until he died in 2012. In 2013, the defendants purchased the property
from Tardif’s estate. Markert testified that Tardif was aware that he was
maintaining the disputed area on the defendants’ property, and that “his
comment always was, it looks better than if I were taking care of it.”

Markert also testified that although he could not recall a specific
conversation with Tardif regarding an irrigation system that his in-laws
installed on the plaintiff’s property, he was “sure at some point we said, we’re
putting in an air irrigation system. Do you mind if it sprays onto your
property?” According to Markert, Tardif’s response, “as it always was, was
sure, it’ll look better than it would if I were taking care of it, so go ahead.”
To establish adverse use, the possessor must show that the owner knew or
ought to have known that the right was being exercised not in reliance upon
the owner’s toleration or permission, but without regard to the owner’s
consent. Sandford v. Town of Wolfeboro, 143 N.H. 481, 484 (1999). Markert
testified that if Tardif had told him to stop maintaining the disputed area, he
would have stopped.

Markert also testified that in 1999, when he was renovating the home on
the plaintiff’s property, he “went over to Paul” and asked for permission to
allow construction equipment to travel over the disputed area. According to
Markert, Tardif’s response was, “it’s never been a problem. Go ahead.”
Although this conversation occurred in 1999, two years after the twenty-year
prescriptive period ended, Tardif’s response to Markert was that, “it’s never
been a problem.” (Emphasis added.) Because Tardif knew that Markert was
the person who had been maintaining the disputed area since 1984, we cannot
conclude that the trial court erred in relying upon this testimony to support its
finding of permissive use. Based upon this record, we conclude that the trial
court’s findings can reasonably be made on all the evidence. Blagbrough, 155
N.H. at 33.

Given our decision to affirm the trial court’s finding that the plaintiff’s
use was not adverse, we need not address his claim that the court’s finding of
non-exclusivity was against the weight of the evidence. See id.

Affirmed.

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

Eileen Fox,
Clerk

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