Mark Palanchian v. Scott Mitchell, Trustee of the Scott Mitchell Revocable Trust of 2010

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0014, Mark Palanchian v. Scott Mitchell,
Trustee of the Scott Mitchell Revocable Trust of 2010, the
court on June 29, 2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Scott Mitchell, appeals an order of the Superior Court (O’Neill, J.)
granting summary judgment in favor of the plaintiff, Mark Palanchian, on the
plaintiff’s trespass claim. We reverse and remand.

The following facts are undisputed. The parties own abutting properties
in Gilford. The defendant’s driveway runs alongside the plaintiff’s property. At
one point, the driveway bends and partially crosses over onto the plaintiff’s
land before it bends back onto the defendant’s land. After a dispute in 2016,
the parties entered into a settlement agreement that granted the defendant a
driveway easement over the plaintiff’s land, along with an easement for a three-
and-one-half-foot buffer zone adjacent to the driveway. The relevant portions
of the easement deed read:

A certain perpetual, exclusive driveway easement located upon
Grantor’s land . . . .

....

Meaning to describe and convey a 175 square foot easement as
depicted on the aforementioned Easement Plan. Said easement
may be used by Grantee’s family members, agents, successors,
assigns, tenants, invitees, licensees and the general public to
access Grantee’s property by vehicle and by foot.

In addition to the above driveway easement, Grantor grants to
Grantee a three and one half (3.5) foot deep, perpetual and
exclusive buffer zone along the edge of the easement zone for
purposes of landscaping and for plowing snow from the driveway
easement area, as depicted on the Easement Plan. Grantee shall
be responsible for landscaping and maintaining said buffer in a
clean and attractive manner.
 In 2020, the defendant installed a stone and concrete wall alongside his
driveway. A stretch of the wall sits within the buffer zone. It stands about two
feet tall, flush with the raised land on the plaintiff’s side of the wall. The buffer
zone also contains landscaping behind the wall, including arborvitaes and bark
mulch.

The plaintiff filed a complaint for, inter alia, trespass against the
defendant in December 2020, arguing that construction of the wall in the
buffer zone exceeded the scope of the easement deed. The parties filed cross-
motions for summary judgment, and the superior court held a hearing in
November 2021. Ultimately, the court granted summary judgment in favor of
the plaintiff. In its order, the court noted that the buffer zone was granted for
“purposes of landscaping and for plowing snow.” (Quotation omitted.) The
court reasoned that “[t]he use of the word ‘and’ demonstrates that the parties’
intention was to permit landscaping that does not impede snow plowing,” and
found that the wall “creates an impediment for plowing snow.” Thus, the court
concluded that “the wall conflicts directly with the unambiguous language of
the Easement Deed and the parties’ intent in creating same.” The court
ordered that “the wall must be removed.” The defendant then brought this
appeal.

In reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Stowell v. Andrews, 171 N.H. 289, 293 (2018). If our review of
that evidence discloses no genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law, then we will affirm the grant of
summary judgment. Id. We review the trial court’s application of the law to
the facts de novo. Id.

On appeal, the defendant first challenges the trial court’s interpretation
of the easement deed, arguing that the trial court “erred when it concluded the
landscaping buffer zone easement could only be used in a manner that
promotes both landscaping and snow removal.” (Capitalization and bolding
omitted.) The defendant asserts that the retaining wall “constitutes
‘landscaping’ as the term is commonly understood” and is thus permitted by
the plain language of the buffer-zone easement. In the alternative, the
defendant contends that even if the wall is not “landscaping,” it is nevertheless
reasonably necessary for the use and enjoyment of his easements.

Resolving this case requires us to interpret the meaning of the deed
language. The interpretation of a deed is a question of law, which we review de
novo. Arell v. Palmer, 173 N.H. 641, 644-45 (2020). When interpreting a deed,
we give it the meaning intended by the parties at the time they wrote it, taking
into account the surrounding circumstances at that time. Id. at 645. If the

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language of the deed is clear and unambiguous, we interpret the intended
meaning from the deed itself, considering it as a whole, without resorting to
extrinsic evidence. Id.

We agree with the defendant that “the trial court erred when it
interpreted the phrase ‘purposes of landscaping and for plowing snow’ to allow
the defendant to use the buffer zone easement only in a way that furthers both
landscaping and snow removal.” (Emphasis added.) Nothing in the deed’s
plain language imposes this limitation on “landscaping.” Indeed, nothing
requires the defendant to actually use the buffer zone area for snow plowing.
The deed states that the “Grantee shall be responsible for landscaping and
maintaining said buffer in a clean and attractive manner,” (emphasis added),
but there is no requirement for snow plowing. He may use it for snow plowing
— or not. Notably, any impediment is to the defendant’s ability to plow his own
driveway. The plaintiff’s ability to remove snow is not impeded. We see no
reason why the defendant’s right to use the buffer zone for snow plowing
should be interpreted as limiting his right to landscape that area.

The plaintiff asserts that the buffer-zone easement must be interpreted
together with the driveway easement, and that the buffer-zone easement was
intended only “for snow plowing and maintenance associated with the
driveway.” We disagree. Even if we interpret the easements together, as
explained above, the plain language of the buffer zone easement permits
“landscaping.” It is not limited to “maintenance associated with the driveway.”
Therefore, the primary question is whether the wall here constitutes
“landscaping.”

We interpret the meaning of “landscaping” based on the meaning that
would be attached to it by reasonable persons. See Close v. Fisette, 146 N.H.
480, 484 (2001). In doing so, we can look to the dictionary for guidance. See,
e.g., Arell, 173 N.H. at 645-46. The verb “landscape” is defined as “to improve
by landscape architecture or gardening.” Merriam-Webster Unabridged,
https://unabridged.merriam-webster.com/unabridged/landscaping (last
visited June 5, 2023) (emphasis added). Furthermore, landscaping can include
“hardscape,” which is defined as “structures (such as fountains, benches, or
gazebos) that are incorporated into a landscape.” Merriam-Webster
Unabridged, https://unabridged.merriam-webster.com/unabridged/hardscape
(last visited June 5, 2023); see also Oxford English Dictionary,
https://www.oed.com/view/Entry/266763#eid67618754 (last visited June 5,
2023) (defining “hardscape” as “[t]he constructed physical features of landscape
design, such as paths, walls, structures, etc., as distinct from vegetation or
water” (emphasis added)). Thus, “landscaping” may include a constructed wall.
Here, the wall holds back other landscaping features, including mulch and
plantings. There is no dispute that its purpose is to neatly separate the
landscaping from the driveway and prevent soil erosion and runoff. In other
words, it is part of the landscaping in the buffer zone. We conclude that the

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deed is unambiguous and that the wall falls within the term “landscaping” as
used in the easement deed.

The plaintiff also argues that the defendant “failed to establish that the
subject concrete wall was necessary for the use and enjoyment of the subject
driveway.” We disagree. The easement deed contains two separate easements
— a buffer-zone easement which permits landscaping, and a driveway
easement. The buffer-zone easement does not limit “landscaping” to
landscaping that is necessary for the use and enjoyment of the separate
driveway easement. The easement deed expressly permits “landscaping,”
which in this case includes the subject wall.

We note that even when a proposed use is permitted by deed language,
the use still must be reasonable. Heartz v. City of Concord, 148 N.H. 325, 331
(2002). Reasonableness is a question of fact that is determined by considering
the surrounding circumstances, such as location and the use of the parties’
properties, and the advantages and disadvantages to each party. Id. at 332.
However, if the complaining party fails to make sufficient factual allegations of
unreasonable use or burden, we need consider only the unambiguous language
in the deed. Id.

The plaintiff’s claim in the trial court was that the wall was outside the
scope of the easement deed’s plain language. Accordingly, we consider only the
unambiguous language in the deed. Id. As explained above, the wall is
permitted by the plain language of the deed.

We conclude that the trial court erred when it ruled that the deed’s plain
language prohibits the wall. Because the wall is permitted by the plain
language of the deed, we need not address the defendant’s alternative
argument that the wall is reasonably necessary for the use and enjoyment of
his easements. Accordingly, we reverse the entry of summary judgment in
favor of the plaintiff and remand to the trial court with instructions to enter
summary judgment in favor of the defendant.

Reversed and remanded.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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