Kevin B. Peets & a. v. Danny O'Malley & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0355, Kevin B. Peets & a. v. Danny
O’Malley & a., the court on April 9, 2020, 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 and remand.

The defendants, Danny O’Malley and Denise C. Vallee (now O’Malley),
appeal an order of the Superior Court (Ruoff, J.) establishing the location of the
common boundary between their real estate and that of the plaintiffs, Kevin B.
Peets and Denise A. Peets. They contend that the trial court erred by: (1)
misinterpreting the deeds that created the common boundary; (2) not finding
the boundary established by adverse possession or acquiescence; and (3)
fashioning a remedy that was an “abuse of equitable discretion.”

We first address whether the trial court erred in interpreting the deeds
that created the common boundary. The determination of the location of a
boundary is a question of fact, which we will not disturb on appeal if there is
evidence to support it. Brown v. Rines, 123 N.H. 489, 493 (1983).

In this case, on a recorded 1954 survey, the parties’ lots were part of a
single lot, having four straight sides, the bounds of which were identified by
distance. In 1964, the then-owner of the historical lot, who was not a surveyor,
subdivided it into the two lots at issue in this case, one being the northern part
and the other being the southern part of the historical lot, by creating a
common boundary running in an east-west direction across the historical lot.
This common boundary is not represented on any survey. The 1964 deed from
the common owner to the defendants’ predecessor in title described the
common boundary as running from one iron pin to another iron pin, “westerly
. . . 78 feet more or less” and referred to the 1954 survey “for a more particular
description” of the lot. The deed stated that it intended to convey the northerly
part of the historical lot as shown on the 1954 survey. In 1966, the original
grantor deeded the southerly lot to the plaintiffs’ predecessor. That deed
included the same reference to the 1954 survey and described the common
boundary in the same way. The plaintiffs acquired the southerly lot in 1997;
the defendants acquired the northerly lot in 2007.

At trial, the plaintiffs’ surveyor testified that the common boundary
between the two lots could be located mathematically because the length of the
parties’ easterly and westerly boundaries respectively, when added together,
equaled the length of the easterly and westerly boundaries shown on the 1954
survey. He testified that one could locate the common boundary between the
two lots by marking the points at which the parties’ easterly and westerly
boundaries connected and drawing a straight line between those two points.

The straight common boundary as determined by this method measured
73.47 feet, not 78 feet as stated in the parties’ chains of title. However, the
plaintiffs’ surveyor also testified that there was no survey of the common
boundary, that the person who created it was not a surveyor, and that 78 feet
was probably just a “guess.”

Both parties’ surveyors testified that they did not locate an iron pin along
the lots’ westerly boundaries, but did find an iron pin in the road that runs
along the lots’ easterly boundaries. However, the plaintiffs’ surveyor did not
locate the common boundary beginning at that pin because that would have
placed the easterly boundaries in the road, which was not part of the historical
lot depicted in the 1954 survey.

The defendants’ surveyor testified that if the pin in the road were used as
the start of the common boundary: (1) the combined easterly boundaries
would be 3.49 feet longer than that shown on the 1954 survey; and (2) the
easterly boundaries would not be a straight line as shown on the survey. He
further testified that it was not unusual for pins to be missing after 64 years
and that “the pins along the road frontage are usually most susceptible to
outside damage from road crews, culverts, [and] plowing.” See id. (stating that
the rule of deed construction that monuments prevail over courses and
distances is an aid used to determine the intent of the grantor; it is not
mandatory in the face of convincing proof of contrary intent); Reney v. Hebert, 109 N.H. 74, 75 (1968) (stating plain error in deed will be rejected and deed
construed reasonably to conform to the intent of the parties). On this record,
we conclude that the trial court’s location of the common boundary is
supported by the evidence. See Brown, 123 N.H. at 493.

We next address whether the trial court erred by finding that the
evidence was insufficient to support the defendants’ claims that the location of
the common boundary was established by adverse possession or acquiescence.
The defendants’ adverse possession argument is not developed. See State v.
Blackmer, 149 N.H. 47, 49 (2003). To establish a boundary by acquiescence, a
party must prove that the parties: (1) are adjoining landowners; (2) have
occupied their respective lots up to a certain boundary; (3) have recognized that
boundary as the true boundary separating the lots; and (4) have done so for at
least twenty years. O’Hearne v. McClammer, 163 N.H. 430, 435 (2012). A
bound to which the parties have acquiesced will prevail even over the deed
descriptions. Id. We review the trial court’s legal rulings de novo, but defer to
its findings of fact if supported by the record. Id. at 436.

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 In this case, the trial court viewed the properties. Defendant Danny
O’Malley testified that the common boundary was south of certain timbers
partially buried in the ground in an east-west line. On appeal, the defendants
argue that the timbers establish the boundary by acquiescence. However,
plaintiff Kevin Peets testified that he never considered the timbers to be the
common boundary.

The defendants point to the location of their shed, fence, and drilled well
as establishing a boundary by acquiescence. However, Peets testified that,
during his ownership, both the defendants’ shed and fence had moved south
toward the plaintiffs’ cottage without his notice or approval. Peets further
testified that the defendants’ well had been on the plaintiffs’ side of the fence,
but now was on the defendants’ side. To the extent that the defendants argue
that the location of their well controls the location of the common boundary,
they point to no evidence that the well was not drilled on the plaintiffs’ land.
O’Malley testified that a snow plow had moved some of the timbers south
toward the plaintiffs’ cottage. Peets testified that the defendants and plaintiffs
had not discussed the location of the common boundary. Cf. id. at 436 (finding
boundary by acquiescence when abutting owners walked boundary together
multiple times over years).

The defendants contend that the plaintiffs are equitably estopped from
denying that they acquiesced to the boundary being the timbers because, in
1997, the designer of their septic system identified it as such and they asked
the defendants’ predecessor for written consent to place the system less than
10 feet from the timbers. However, the defendants did not raise this argument
in the trial court until they moved for reconsideration of the final order, and the
trial court did not address it. See Mt. Valley Mall Assocs. v. Municipality of
Conway, 144 N.H. 642, 654-55 (2000) (stating party may not raise issue for the
first time in motion for reconsideration when issue was readily apparent at
time party initially filed for relief).

Moreover, the defendants do not point to any evidence that the plaintiffs,
at the time of the septic design, knew that the timbers were not the common
boundary. See Sunapee Difference v. State of N.H., 164 N.H. 778, 792-93
(2013) (stating that equitable estoppel requires a false representation or
concealment of material facts made with knowledge of those facts). We
conclude that the trial court’s finding that the evidence was insufficient to
establish a boundary by acquiescence is supported by the record and not
legally erroneous. See O’Hearne, 163 N.H. at 436.

Finally, we address whether the trial court unsustainably exercised its
discretion in fashioning a remedy. The trial court, after locating the common
boundary, directed that: (1) its order and the plaintiffs’ surveyor’s sketch
showing the common boundary be recorded; and (2) the defendants “remove all
encroaching structures and related items within” 60 days.

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 The defendants argue that: (1) “there is no way to determine what
structures encroach, and how far they must be moved” because the plaintiffs’
surveyor’s sketch does not show the location of the defendants’ well, shed, and
fence; (2) there is a “possibility” that their well encroaches on the plaintiffs’
land; (3) the surveyor’s sketch is not recordable; and (4) the plaintiffs sought
only to have the defendants’ shed moved. The defendants do not explain how
any of these points show that the trial court unsustainably exercised its
discretion in fashioning a remedy.

However, it is unclear from the trial court’s order whether it intended to
include the defendants’ well within the meaning of the term, “structures.”
Accordingly, we remand for the trial court to clarify its order in that respect.

Affirmed and remanded.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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