Alan Armstrong & a. v. Maria Giakoumakis & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0014, Alan Armstrong & a. v. Maria
Giakoumakis & a., the court on October 26, 2018, 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, Maria Giakoumakis and Paul Foden, appeal an order of
the Superior Court (Anderson, J.) “barr[ing them] from docking a boat in any
location that would result in any portion of the boat resting over the extended
property line with the” plaintiffs, Alan Armstrong and George Armstrong. See
RSA 482-A:3, XIII(b) (Supp. 2017). They contend that the trial court erred by: (1)
allowing the plaintiffs to bring an action to enforce RSA 482-A:3, XIII(b); (2)
finding that they had not established a prescriptive easement to dock a boat on
the plaintiffs’ side of the extended property line; (3) not finding that RSA 482-A:3,
XIII(b) was a dock-permitting requirement that the New Hampshire Department
of Environmental Services (DES) had waived when it granted them a permit to
place a dock abutting the extended property line; and (4) not finding that
applying RSA 482-A:3, XIII(b) to their dock constituted an unconstitutional
retroactive application of RSA 482-A:3, XIII(b) and a taking.

We review a trial court’s application of law to facts de novo, but we defer to
a trial court’s findings of fact, when those findings are supported by evidence in
the record and not legally erroneous. Jesurum v. WBTSCC Ltd. P’ship, 169 N.H.
469, 476 (2016).

In this case, DES granted the defendants a permit to install a 30-foot dock
abutting a line extending from their corner boundary with the plaintiffs (extended
boundary). The dock was not “grandfathered” with respect to the requirements of
RSA 482-A:3, XIII(b). There is no dispute that a boat attached to the left side of
this dock will cross the extended boundary and encroach upon the waters
adjacent to the plaintiffs’ shorefront property. DES specifically informed the
defendants that the permit did “not affect the statutory prohibition on securing
boats to the permitted dock such that the boat extends beyond the extension of
an abutter’s property line as set forth in” RSA 482-A:3, XIII(b) and that “DES has
no authority to grant a waiver or other exemption from” the statute.

We first address whether the plaintiffs were entitled to bring an action to
enforce RSA 482-A:3, XIII(b). That statute governs the angle at which a dock may
extend from shore and provides that, regardless of the angle, “any boat secured
to such a dock shall not extend beyond the extension of the abutter’s property
line.” RSA 482-A:3, XIII(b). RSA 482-A:14-c (2013) provides that, “[i]n addition
to any common law remedy, any person who suffers damages as a result of a
violation of this chapter . . . may seek compensation from the person who
committed the violation.” The defendants argue that the plaintiffs could not seek
an injunction because RSA 482-A:14-c authorizes only actions for damages. By
its express terms, however, RSA 482-A:14-c’s remedies apply in addition to
common law remedies. Moreover, it is well established that because the use and
enjoyment of real property is unique, the superior court’s equity jurisdiction
extends to the enforcement of private property rights. See Jesseman v. Aurelio, 106 N.H. 529, 532 (1965).

Under the common law, littoral property owners have the right to use and
occupy the waters adjacent to their shorefront property for a panoply of
recreational purposes. Sundell v. Town of New London, 119 N.H. 839, 844
(1979). These rights may be enforced in equity. Heston v. Ousler, 119 N.H. 58,
62-63 (1979) (affirming that defendant’s dock encroached upon plaintiffs’
common law littoral property rights when it was located at angle so as to be
directly in front of plaintiffs’ waterfront); see Milne v. Burlington Homes, Inc., 117
N.H. 813, 815 (1977) (stating division between law and equity is not precise and
“trial courts have considerable discretion in determining whether equity should
intervene to aid litigants in the protection of their legal rights”). Accordingly, we
conclude that the plaintiffs were entitled to seek an injunction barring the
defendants from docking boats in the waters adjacent to the plaintiff’s shorefront
property.

We next address whether the trial court erred by finding that the
defendants had not established a prescriptive easement to dock a boat in the
water on the plaintiffs’ side of the extended water boundary. We share the trial
court’s “considerable reservations about finding a prescriptive easement” over
water in which neither party has a fee interest. However, we will assume,
without deciding, that a prescriptive easement could be established under the
circumstances of this case. To establish a prescriptive easement, the claimant
must show, by a balance of probabilities, twenty years’ adverse, continuous,
uninterrupted use of the land claimed in such a manner as to give notice to the
record owner that an adverse claim was being made to it. Jesurum, 169 N.H. at
476. Whether the claimant’s use was continuous is a question of fact. Weeks v.
Morin, 85 N.H. 9, 12 (1931); see Mahoney v. Town of Canterbury, 150 N.H. 148,
150 (2003) (stating whether highway created by prescription is finding of fact).

In this case, the trial court found that the defendants failed to establish
that they and their predecessors-in-interest docked boats in the waters adjacent
to the plaintiffs’ shorefront property for 20 years continuously. The trial court
rested its finding that the defendants’ use was not continuous primarily upon

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photographs showing the dock over the years in various locations on the
defendants’ lot and on the plaintiffs’ exclusive permissive use of the dock in the
2000s.

The defendants argue that, given that their water frontage was only 18 feet,
in all the dock’s various locations some small portion of a boat docked on the left
side necessarily would have extended into the water in front of the plaintiffs’
shorefront. However, the trial court declined to “predicate an award of a
prescriptive easement over one area based on a potentially de minimus use of
only a small portion of the disputed area.” Furthermore, the trial court could
have reasonably determined that such a minimal encroachment was inadequate
to place the plaintiffs on notice of the adverse use. Cf. Jesurum, 169 N.H. at 477
(“Use is trespassory if it consists of a wrong which the fee holder can prevent or
for which he can obtain damages by means of legal action.”). Based upon this
record, we conclude that the trial court’s finding that the defendants failed to
establish continuous use of the water adjacent to the plaintiffs’ shorefront was
supported by the evidence and not legally erroneous. See id. at 476.

Finally, we address whether the trial court erred by not finding that: (1)
RSA 482-A:3, XIII(b) was a dock-permitting requirement that DES waived when it
issued the defendants’ permit, but see Appeal of Michele, 168 N.H. 98, 104
(2015) (stating that DES’s authority to regulate docks does not divest courts of
jurisdiction to decide underlying property rights); and (2) the defendants had a
vested right to dock boats on the left side of their dock in its permitted location
that predated the enactment of RSA 482-A:3, XIII(b) and, thus, the statute’s
retroactive application constituted an unconstitutional taking.

The defendants have not identified where they made these arguments in
the trial court. See Blagbrough Family Realty Trust v. A & T Forest Prods., 155
N.H. 29, 35 (2007). The trial court must have had the opportunity to consider
any issues asserted by the appellants on appeal. To satisfy this preservation
requirement, any issues that could not have been presented to the trial court
prior to its decision must be presented to it in a motion for reconsideration.
Super. Ct. Civ. R. 12(e); see N.H. Dep’t of Corrections v. Butland, 147 N.H. 676,
679 (2002). When a party fails to demonstrate that it raised an issue before the
trial court, the issue is not preserved. Blagbrough, 155 N.H. at 35. Accordingly,
we decline to address these arguments.

Any remaining issues raised by the defendants in their brief are either not
sufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or
otherwise do not warrant further discussion, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

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 To the extent that the plaintiffs move to amend their complaint, this
motion is not properly directed to us.

Affirmed.

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

Eileen Fox,
Clerk

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