James McManus v. Patrick Royal & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0731, James McManus v. Patrick Royal &
a., the court on October 2, 2018, issued the following order:

Having considered the brief, memorandum of law, 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, James McManus, appeals the order of the Superior Court
(Anderson, J.), following a bench trial, denying his adverse possession claim
over property owned by the defendants, Patrick Royal and Kimberly Royal. The
plaintiff argues that the trial court erred in finding that: (1) the use of the
defendants’ driveway between 2000 and 2004, after the parties’ predecessors in
title agreed to use the driveway jointly, was permissive; (2) the use of the area
behind the driveway also was permissive; (3) the use of the entire disputed area
was not exclusive after October 2009; and (4) the plaintiff failed to establish a
prescriptive easement over a portion of the entrance to the driveway.

“To acquire title to real property 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.” O’Hearne v. McClammer, 163 N.H. 430, 435 (2012) (quotation
omitted). “[T]o satisfy the adverse use requirement, the nature of the use must
have been such as to 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.” Bonardi v.
Kazmirchuck, 146 N.H. 640, 642 (2001) (brackets and quotation omitted). A
claimant may establish twenty years of adverse use by “tacking” the use of his
predecessors in title. Page v. Downs, 115 N.H. 373, 375 (1975).

The parties own adjacent residential properties with a driveway between
them. The boundary line between the properties bisects the driveway in a line
that runs parallel with the length of the driveway. The tenants and prior
owners of the plaintiff’s residence used the entire driveway almost exclusively
from the mid-1990s until June 30, 2015, when the plaintiff’s tenants complied
with the defendants’ demand to terminate such use. The plaintiff claims
twenty years of adverse possession from February 28, 1995, when Troy
Hartson purchased his property, through June 30, 2015, a period of twenty
years and four months. Hartson testified that during his nine years of
ownership, from 1995 to 2004, he used the entire driveway exclusively. He
testified that he regularly parked two vehicles in the driveway and installed a
shed behind the driveway, partially on the defendants’ property.

Samuel Chouinard purchased the defendants’ property on May 31, 1996
and owned it until July 3, 2014. Chouinard testified that in the late 1990s, he
and Hartson measured the property line together and discovered that their
common boundary line ran down the middle of the driveway. Chouinard
testified that he and Hartson reached an agreement to allow Hartson to use the
portion of the driveway that belonged to Chouinard.

Frank Reid testified that he has been renting the defendants’ property
since October 2009. He testified that he uses the driveway “as a parking
overflow . . . for friends and family and relatives,” and that he has “constantly”
used the area behind the driveway for storage of kayaks, a swing set, and a
grill. Reid testified that his children have used the driveway two to three days
per week since 2013, within the twenty-year period. Based upon these facts,
the trial court found that the use of the disputed area between 2000 and 2004,
including the driveway and area behind the driveway, was permissive and that,
after October 2009, the use was not exclusive.

The plaintiff first argues that the trial court erred in finding that
Chouinard agreed to allow Hartson the use of Chouinard’s portion of the
driveway. We will uphold the trial court’s factual findings unless they are
unsupported by the record. O’Malley v. Little, 170 N.H. 272, 275 (2017).
Chouinard testified that, after he measured the boundary line and discussed
the results with Hartson, they agreed to use the driveway “jointly.” Chouinard
testified that Hartson “could continue to use [the driveway] right now,” because
Chouinard “didn’t need to park there right then,” given that Chouinard “parked
on the other side” of his residence.

We have held that “[i]f a use is made pursuant to the permission of the
owner of the would-be servient estate, that use cannot be adverse.” Town of
Warren v. Shortt, 139 N.H. 240, 244 (1994). Hartson testified that he observed
Chouinard measure the boundary location, and that Chouinard informed him
that Chouinard’s property included a portion of the driveway. Although
Hartson denied the existence of any agreement on joint use, the court found
Chouinard to be more credible. The court found that “[i]t makes sense . . . that
[Chouinard] and Hartson would reach an agreement after Chouinard measured
the property and found that he owned half the property.” We defer to the trial
court on such issues as resolving conflicts in the testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence.
O’Malley, 170 N.H. at 275.

The plaintiff asserts that Chouinard’s testimony regarding the terms of
the agreement was vague, and that any such agreement was subject to a
condition precedent that never occurred, specifically, Hartson’s obligation to

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“rearrange some items” to allow more room for parking. However, as the trial
court correctly ruled, the dispositive issue is not whether Chouinard and
Hartson agreed upon specific terms of shared use of the driveway, but rather
whether, as a result of their discussions, Hartson’s subsequent use was
adverse or permissive. See O’Hearne, 163 N.H. at 435. Whether the use of
property is adverse or permissive is an issue of fact. See Bonardi, 146 N.H. at
642. In evaluating the merits of an adverse possession claim, courts are to
construe evidence of adverse possession strictly. Blagbrough Family Realty
Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007). Based upon the
discussion between Chouinard and Hartson, the court found that an
agreement for permissive use “is more consistent with the general tenor of
discussions between Hartson and Chouinard in the late 1990’s than an
inference that Hartson was using the driveway adversely.” Consequently, the
court found that Hartson’s use of the property was permissive for the period
between 2000 and 2004, when Hartson sold his property. We conclude that
the record supports the trial court’s finding. See O’Malley, 170 N.H. at 275.

The plaintiff argues that the trial court’s order is contrary to our decision
in O’Malley, a case in which we affirmed the trial court’s finding of adversity.
See id. at 278. However, O’Malley is distinguishable because in that case, the
record owners demanded that the plaintiffs move the fence that had been
erected on their property, and the plaintiffs refused. See id. at 274. In this
case, by contrast, there was no testimony that Chouinard told Hartson that he
could no longer use Chouinard’s portion of the driveway, that Hartson rejected
Chouinard’s joint use proposal, or that Hartson otherwise communicated an
intent to use the driveway regardless of Chouinard’s consent. See Bonardi,
146 N.H. at 642. This case is more analogous to Zivic v. Place, in which the
record owner’s letter to the claimant giving him permission to use the road
terminated the adversity of the claimant’s use, in light of the claimant’s failure
to put the title owner on notice that his use remained adverse after receipt of
the letter. See Zivic v. Place, 122 N.H. 808, 813 (1982).

The plaintiff next argues that the trial court erred in finding that his use
of the disputed area behind the driveway was also permissive. He asserts that
any agreement between Chouinard and Hartson was limited to the use of the
driveway. However, Chouinard testified that he surveyed the entire common
property line, which included the disputed area behind the driveway. The
court found that Chouinard gave Hartson permission to use the area along the
entire boundary line, including the disputed area behind the driveway. We
conclude that the record supports the trial court’s finding. See O’Malley, 170
N.H. at 275.

Although the trial court’s findings regarding adversity are sufficient to
defeat the plaintiff’s adverse possession claim, see O’Hearne, 163 N.H. at 435,
the record also supports the court’s finding that the use of the driveway and
disputed area behind the driveway by the plaintiff and his predecessors was

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not exclusive. Use in common with the defendants, their predecessors, or their
tenants is not exclusive use. See Seward v. Loranger, 130 N.H. 570, 576-77
(1988). Reid testified that he has used the driveway “as a parking overflow
. . . for friends and family and relatives” and that he has “constantly” used the
area behind the driveway for storage of kayaks, a swing set, and a grill. Reid
also testified that his children have used the driveway two to three days per
week since 2013, within the twenty-year period claimed. The court found
Reid’s testimony credible. We conclude that the evidence of Reid’s use is
sufficient to support the finding that the plaintiff’s use was not exclusive.

Finally, the plaintiff argues that the trial court erred in finding that he
failed to establish a prescriptive easement over a portion of the driveway at its
entrance. To establish a prescriptive easement, the plaintiff must prove
adversity, see Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 476 (2016), and
as previously noted, the trial court found that the plaintiff’s use of the entire
driveway was permissive from 2000 to 2004. Accordingly, we find no error in
the trial court’s ruling. To the extent that the trial court “may have
misconstrued the [p]laintiff’s position as to the prescriptive easement,” as he
argues in his brief, the record, which does not include the plaintiff’s motion for
reconsideration, fails to show that he raised this issue in the trial court. See
Super. Ct. Civ. R. 12(e); N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679
(2002); see also Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004)
(appellant bears burden to provide record sufficient to demonstrate he raised
issue in trial court).

Affirmed.

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

Eileen Fox,
Clerk

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