George Nicolaou v. Marilyn J. Taylor & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0666, George Nicolaou v. Marilyn J.
Taylor & a., the court on September 20, 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 defendants, Marilyn J. Taylor and Krystal Fortin, owners of the
servient estate, appeal an order of the Superior Court (Ruoff, J.) in favor of the
plaintiff, George Nicolaou, owner of the dominant estate, in his action for a
declaratory judgment, see RSA 491:22 (Supp. 2016), and permanent injunction.
They contend that the trial court did not correctly identify the location of the
dominant estate’s right-of-way and erred by: (1) relying on certain evidence; (2)
“not applying the rule of reason”; (3) declining to address their “equitable
considerations”; and (4) not finding that the parties acquiesced to the relocation
of the right-of-way.

We review the trial court’s interpretation of a deed de novo. Sanborn v.
428 Lafayette, LLC, 168 N.H. 582, 587 (2016). If the language of the deed is
ambiguous, extrinsic evidence of the parties’ intentions and the circumstances
surrounding the conveyance may be used to clarify its terms. Id. at 588. Our
determination of the terms of a deed is based upon the parties’ intentions as
properly found by the trial court. Robbins v. Lake Ossipee Village, Inc., 118 N.H.
534, 536 (1978). We defer to the trial court’s findings of historical fact, Burke v.
Pierro, 159 N.H. 504, 508 (2009), and we will not disturb its determinations as to
the location of monuments when they are supported by evidence, Chao v. The
Richey Co., Inc., 122 N.H. 1115, 1119 (1982).

In this case, the 1959 deed that created the dominant estate’s right-of-way
described it as “approximately twenty (20) feet wide and as presently used for the
purpose of passing to and from” the dominant estate to the road. To the extent
that the servient estate argues that the “language ‘as presently used’ indicates
use, not location,” we disagree. We understand this language to refer to a
physical route in use at the time of the deed.

The parties contest the angle and point at which the right-of-way accesses
the public road. The servient estate contends that the right-of-way is
perpendicular to the road and meets it at a point separate from the servient
estate’s driveway; the dominant estate contends, and the trial court found, that
the right-of-way meets the road at an angle and in the same place as the servient
estate’s driveway.

We first address whether the trial court erred by relying on certain
evidence. The servient estate argues that the trial court “improperly” weighed the
description of a second easement over the servient estate that once benefited a
third property. The dominant estate acknowledges that this second easement
was extinguished by merger. See Appletree Mall Assocs. v. Ravenna Inv. Assocs., 162 N.H. 344, 348 (2011) (describing extinguishment by merger). To the extent
that the servient estate argues that the trial court erred by finding that the
second easement followed the same physical path as the right-of-way at issue
here, the 1959 deed stated that the right-of-way was to be “used in common with
all others entitled thereto both now and as hereinafter granted.” Thus, the trial
court could reasonably have concluded that the two dominant estates would
have used the same route through the undeveloped woodland existing at the time
the easements were granted.

However, the trial court did not rely upon the deed description of this
second easement to locate the right-of-way. Instead, the trial court relied upon
testimony, plans, and its view of the servient estate. It found that when the
right-of-way was established, the location claimed by the dominant estate “would
have made much more sense because of the steepness and grade of the hill
behind the driveway. Moreover, it would have been a more direct line of travel.”
It further found that the location claimed by the servient estate “would not have
been reasonable” because of the topography of the area.

The trial court “took note of the location of various trees (some of which
appeared decades old).” The servient estate argues that “the court failed to note
that these decades-old trees were located in the middle of the area that the court
now found to be the right of way.” However, there is no indication that this was
the location of the trees to which the court referred.

In determining the location of the right-of-way in 1959, the trial court gave
“considerable weight to the fact that [the right-of-way] was created years prior” to
the construction of the house and driveway on the servient estate.

The servient estate argues that the trial court erred by relying upon “the
two older plans, rather than the chain of title and other evidence showing the
parties’ intended location of the access easement.” Although the “two older
plans” differ from each other in some respects, they both show the right-of-way
leaving the road as an arc, which was central to the parties’ dispute.
Furthermore, although not created contemporaneously with the right-of-way, the
older plans were prepared closer in time to its creation than the plans that the
servient estate advocated, and, therefore, were more likely to show the route
“presently used” in 1959 when the right-of-way was granted. See Town of

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Newbury v. Landrigan, 165 N.H. 236, 239-40 (2013) (stating that we defer to trial
court to resolve conflicts and to determine weight given to evidence).

We next address whether the trial “court erred as a matter of law by not
applying the rule of reason in its deed interpretation.” The rule of reason is
utilized in two circumstances: first, to interpret and give reasonable meaning to
general or unclear terms in the deed language granting an easement; and,
second, irrespective of the deed language, to determine whether a particular use
of an easement would be unreasonably burdensome. Heartz v. City of Concord,
148 N.H. 325, 331 (2002). It may not be invoked to compel an easement holder
to relocate an easement, regardless of the necessity to the servient estate or the
lack of inconvenience to the easement holder. Sakansky v. Wein, 86 N.H. 337,
340 (1933).

Under the rule of reason, reasonableness is a question of fact that is
determined by considering the surrounding circumstances. Arcidi v. Town of
Rye, 150 N.H. 694, 702 (2004). We will not overturn the trial court’s factual
findings, particularly when aided by a view of the property in question, when they
are supported by the evidence. Id.

In this case, the servient estate contests the location of the right-of-way,
not the dominant estate’s use of it. Assuming, without deciding, that the rule of
reason applies to this issue, we conclude that the location identified by the trial
court is supported by the evidence. The trial court’s task was to identify the
location of the right-of-way “as presently used” in 1959. See Duxbury-Fox v.
Shakhnovich, 159 N.H. 275, 279 (2009) (“Our determination of disputed deeds is
based on the parties’ intentions gleaned from construing the language of the deed
from as nearly as possible the position of the parties at the time of the
conveyance and in light of surrounding circumstances.”). Its finding regarding
the location was supported by its view, a plan drafted approximately eight years
after the grant of the right-of-way, and the testimony of two witnesses, both of
whom described the right-of-way prior to 2003, when the owner of the dominant
estate installed a culvert in the roadside ditch at the start of the location claimed
by the servient estate.

To the extent that the servient estate argues that “[t]he best evidence of the
[right-of-way’s] location is where it is now,” the servient estate’s expert testified
that he did not think one could drive over the roadside ditch in the absence of a
culvert. From this and its view, the trial court could have reasonably inferred
that the dominant estate could not have accessed its right-of-way directly from
the road without crossing the servient estate’s driveway prior to 2003, when the
culvert was installed in the roadside drainage ditch.

The servient estate argues that the rule of reason requires consideration of
current circumstances. However, it may not be used to compel an easement
holder to relocate the deeded right-of-way. Sakansky, 86 N.H. at 340. Although

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the dominant estate may be able to access the right-of-way without using the
servient estate’s driveway, he cannot be compelled to do so if that was not the
route conveyed in the 1959 deed. See id.

Accordingly, we cannot conclude that the trial court’s finding regarding the
location of the right-of-way was inconsistent with the rule of reason or
unsupported by the evidence. See Arcidi, 150 N.H. at 702.

We next address whether the trial court erred by not addressing equitable
considerations raised by the servient estate, including: (1) the proximity of the
right-of-way to the house on the servient estate; (2) the effect of the right-of-way
on drainage through the servient estate’s yard and driveway; (3) issues with
parking and snow removal in the servient estate’s yard; and (4) issues created by
a shared driveway. We note that these equitable issues involve the proximity of
the right-of-way to the servient estate’s house and driveway, neither of which
existed in 1959 when the right-of-way was granted.

To the extent that the servient estate argues that equity determines the
location of an undefined easement, this principle rests upon the presumption
that such considerations will identify the location the parties intended. Duxbury-
Fox, 159 N.H. at 281. We cannot conclude that the equitable considerations
identified by the servient estate compelled the trial court, as a matter of law, to
determine that, in 1959, the right-of-way was in a different location.

We finally address whether the trial court erred by not finding that the
parties acquiesced to the relocation of the right-of-way. See id. at 282 (stating
that when the location of a deeded right-of-way is uncertain, it may be clarified
by the agreement of subsequent owners). In this case, the owner of the dominant
estate since 2002 testified that he had not agreed to relocate the right-of-way and
that he used its original path until it was blocked. He testified that he told one of
the owners of the servient estate that they should clearly delineate his right-of-
way across the driveway, not that he was abandoning it. Although the servient
estate’s witnesses testified otherwise, we cannot conclude, as a matter of law,
that the trial court was compelled to find that the parties had acquiesced to
relocating the right-of-way. See Landrigan, 165 N.H. at 239-40.

Affirmed.

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

Eileen Fox,
Clerk

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