Jeffrey C. Spear & a. v. Richard J. Waite & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0063, Jeffrey C. Spear & a. v. Richard J.
Waite & a., the court on August 24, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiffs, Jeffrey Spear and Jennifer Kernan, appeal a
decision of the Superior Court (Tucker, J.) ruling that the defendants, Richard
and Heidi Waite, own a strip of land that abuts the parties’ properties in
Concord. The plaintiffs also appeal the court’s order ruling that their easement
rights over that strip of land do not permit them to plant decorative
groundcover. We affirm.

I

The following facts are undisputed by the parties or are otherwise
supported by the record.

A. The Parties’ Properties

The plaintiffs live at 123 School Street and the defendants live at 119
School Street in Concord. The parties’ properties, along with 121 School
Street, are arranged in a row south of and perpendicular to School Street. 123
School Street is at the north end of the row abutting School Street, and 119
School Street is at the south end of the row, furthest from the street. Adjoining
School Street and running alongside the parties’ properties is a 30-foot-wide
strip of land (the 30’ Parcel) containing a shared driveway used by 119, 121,
and 123 School Street. Along with the driveway, there are grassy areas within
the edges of the 30’ Parcel. The plaintiffs’ front yard abuts the western edge of
the 30’ Parcel, and a portion of their front walkway sits within the 30’ Parcel.
The defendants’ residence sits at the southern edge of the 30’ Parcel.

The parties’ properties and the 30’ Parcel are depicted in the following
plat, referred to as the Thayer Plan:
Lot 16 corresponds with the plaintiffs’ home at 123 School Street, and lot 12
corresponds with the defendants’ home at 119 School Street. The defendants
also now own lots 8, 9, 10, part of 13, and part of the area labeled “Proposed
Street.” The 30’ Parcel is labeled “Driveway.” Two narrower areas are labeled
“Passway.”

The defendants’ property was aggregated by a series of deeds starting in
the early 1900s. It was conveyed to them in its current form by Susan
Heinecke in 2005. Both the defendants’ deed and the plaintiffs’ deed contain
language granting an easement to “pass and repass” over the 30’ Parcel. The
parties dispute who owns the land under the easements.

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 B. History of the Defendants’ Deed

The title history of the defendants’ property begins in the early 1900s.
The defendants’ property, and the surrounding parcels, were first owned by
William Thayer.

1. 1900 Conveyance: William Thayer to Edward Niles

In 1900, Thayer conveyed the parcel depicted as lot 12 on the Thayer
Plan to Edward Niles. The conveyance predated the recording of the Thayer
Plan and did not refer to it, but the deed described the lot 12 parcel by metes
and bounds. The 1900 deed included an easement right to “pass and repass
over a passway thirty feet wide,” referring to the 30’ Parcel.

2. 1905 Conveyance: William Thayer to Union Realty Company

In 1905, Thayer “conveyed the remaining parent parcel to the Union
Realty Company, controlled by Thayer.” The parties do not dispute that at this
point the remainder of the parent tract, belonging to Thayer, was transferred to
Union Realty via quit claim deed. From our review of the deeds, this transfer
included the 30’ Parcel.

3. 1922 Conveyance: Edward Niles to Agatha Chandler

In 1922, Niles conveyed his land, marked as lot 12 on the Thayer Plan, to
Agatha Chandler, together with the right to pass and repass over the 30’
Parcel.

4. 1922 Conveyance: Union Realty Company to Agatha Chandler

Also in 1922, Union Realty conveyed to Chandler “lots 8 and 9 and a
portion of lot 10 as shown on [the Thayer] plan.” Notably, this 1922 deed is the
first deed to refer to the Thayer Plan, which was also recorded in 1922. This
deed included the following easement:

the right to use for passage to and from the premises of said
Agatha B.E. Chandler the passway on the northerly and westerly
sides of said land conveyed by said Edward C. Niles to said Agatha
B.E. Chandler as shown on said plan . . . .

5. 1923 Conveyance: Agatha Chandler to Samuel Dunsford

In 1923, Chandler conveyed all of her property to Samuel Dunsford.

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 6. 1926 Conveyance: Union Realty Company to Samuel Dunsford

In 1926, Union Realty made a final conveyance to Dunsford. That deed
(the Dunsford Deed) conveyed:

lots #5, 6, 7, 11 and 13 and a portion of Lot #10 as shown on [the
Thayer Plan] . . . together with all the land insofar as the grantor
may convey it contained in any proposed street or passway shown
on said plan abutting any of said lots . . . . Meaning and intending
to convey to the grantee all of the land now owned by the grantor
lying in the area bounded by Giles, School and West Washington
and Liberty Streets . . . .

The Dunsford Deed conveyed land only and did not convey any easements.

7. The Defendants’ Current Deed

The defendants acquired their property from Susan Heinecke in 2005.
Their deed includes three tracts: Tract I contains lot 12; Tract II contains lots
8, 9, and a portion of 10; and Tract III contains the remaining portion of lot 10
and a part of 13. Relevant to this dispute, Tract III also conveyed “all the land,
insofar as it was effectively conveyed to Samuel B. Dunsford by the Union
Realty Company, contained in any proposed street or passway, as shown on
[the Thayer Plan], abutting any of lots 5, 6, 7, 11 and 13 . . . .” It is the
defendants’ position that this language incorporating the 1926 Dunsford Deed
conveyed title to the 30’ Parcel.

C. The Present Dispute

In October 2015, the plaintiffs planted decorative groundcover in the
grassy area of the 30’ Parcel abutting their front yard. The defendants,
claiming they owned the land, tore out the plantings. The plaintiffs filed a
petition to quiet title, seeking, inter alia, a declaration that the defendants do
not own the 30’ Parcel. The defendants cross-claimed, seeking, inter alia, a
declaration that they owned fee title to the 30’ Parcel. Thereafter, the parties
filed cross-motions for summary judgment, specifically as it related to the issue
of ownership.

In the plaintiffs’ motion, they did not claim that their deed conveyed title
to the land, but instead argued that the defendants’ deed did not. The
plaintiffs argued, inter alia, that the Dunsford Deed did not convey fee title to
the 30’ Parcel. They asserted that because the 30’ Parcel is labeled “Driveway”
on the Thayer Plan, it is not a “passway shown on said plan abutting any of
said lots.” The defendants argued that the Dunsford Deed did convey title to
the 30’ Parcel. In support of their position, the defendants submitted an
affidavit from Stephan Nix, an attorney and land surveyor, who provided a title

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history of the 30’ Parcel. Nix explained that “[i]t is a long accepted surveying
and boundary construction industry standard to show a line on a plan dividing
an intended separation of property rights,” and reasoned that the Thayer Plan
depicts the “Passway” and “Driveway” areas as a single parcel of land (the
Passway Parcel). Nix also noted that several deeds from Union Realty granted
easements over the 30’ Parcel and described that area as a “passway” rather
than a “driveway.” He thus concluded that the fee to the 30’ Parcel “was
included in the Dunsford Deed.” The trial court ruled that the defendants’
deed included ownership of the 30’ Parcel.

The parties then filed new cross-motions for summary judgment to
resolve the remaining claims. The plaintiffs argued, inter alia, that installing
the groundcover and stone walkway were reasonable alterations to the
easement area. The defendants asserted that these alterations were not
permitted under the easement. The court ruled that the plaintiffs’ stone
walkway was a permissible use of their easement, reasoning that it “is
consistent with the easement’s purpose to provide . . . the right to pass and
repass.” However, the court ruled that the plaintiffs could not plant
groundcover in the easement area, reasoning that the proposed plantings were
“decorative in nature” and “not reasonable and necessary to [the plaintiffs’] use
of the easement as a means of access to and from School Street.”

The plaintiffs then filed this appeal.

II

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.

A. Ownership of the 30’ Parcel

The plaintiffs make four arguments in support of their position that the
trial court erred when it ruled that the defendants own fee title to the 30’
Parcel: (1) “the trial court ignored the longstanding rule that an incorporated
plan controls the conveyance in the deed” (capitalization and bolding omitted);
(2) the trial court erred in concluding that the “Driveway” and “Passway” area
are a single parcel of land; (3) the trial court misinterpreted the 1922 deed from
Union Realty to Chandler; and (4) the trial court erred by failing to consider the
previous owner’s practical construction of the deed.

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 These arguments require us to interpret the deeds in this case, a
question of law which we review de novo. White v. Auger, 171 N.H. 660, 663
(2019). In 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. If the language of the deed is clear and unambiguous, we will
interpret the intended meaning from the deed itself without resort to extrinsic
evidence. Id. at 663-64. If, however, 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 664. When interpreting
the parties’ intent, we consider the deed as a whole. Id.

The language of a deed is ambiguous if the parties could reasonably
disagree as to the meaning of the language. Arell v. Palmer, 173 N.H. 641, 645
(2020). A deed may contain either a patent or a latent ambiguity. Id. A patent
ambiguity exists “when the language in the deed does not provide sufficient
information to adequately describe the conveyance without reference to
extrinsic evidence.” Id. A latent ambiguity exists when the language of the
deed is clear, but “the conveyance described can be applied to two different
subjects or is rendered unclear by reference to another document.” Id.

The plaintiffs first argue that the trial court erred by “ignor[ing] the
longstanding rule that an incorporated plan controls the conveyances in the
deed.” (Capitalization and bolding omitted.) It is the plaintiffs’ position that
because the 30’ Parcel is labeled “Driveway” on the Thayer Plan, the trial court
was required to find that the 30’ Parcel was not conveyed by the language
“passway shown on said plan” in the Dunsford Deed. They assert that the
Dunsford Deed’s “reference to the Thayer Plan means that the terms shown on
that plan control as a matter of law.” We agree with the plaintiffs that the
Dunsford Deed, having incorporated the Thayer Plan by reference, must be
read as a whole with the Thayer Plan in order to understand the parties’ intent.
See Duchesnaye v. Silva, 118 N.H. 728, 732 (1978) (explaining that where a
“deed refers with particularity to a recorded map or plat,” then “the boundaries
set forth on the map should be construed as if written in the deed”); McCleary
v. Lourie, 80 N.H. 389, 392 (1922) (“Each deed in the defendants’ chain of title
contained a specific reference to the Hutchinson plan. The plan thus became
an essential part of each conveyance.”). The defendants, however, point to
different language in the Dunsford Deed — its meaning and intending clause.
That clause states: “Meaning and intending to convey to the grantee all of the
land now owned by the grantor lying in the area bounded by Giles, School and
West Washington and Liberty Streets.” The defendants assert that this shows
that “Union Realty intended to convey the fee to all the land it owned” within
the stated boundaries, “which includes the 30’ Parcel.” Taken together, the
conflicting references in the plain language of the deed and the incorporated
plan produce a latent ambiguity. See Arell, 173 N.H. at 645. Accordingly, we
look to extrinsic evidence to resolve this dispute. See id.

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 The plaintiffs assert that because “the 30’ Parcel/Driveway and the
‘passway’ were created separately, were treated separately in all the relevant
deeds, and occupy distinct areas on the ground,” the term “passway” in the
Dunsford Deed does not connote a contiguous parcel of land including both the
“Passway” and “Driveway” areas of the Thayer Plan. We first disagree that
those areas “occupy distinct areas on the ground.” The “Passway” and
“Driveway” areas abut one another. And the plaintiffs do not challenge Nix’s
assertion that “[i]t is a long accepted surveying and boundary construction
industry standard to show a line on a plan dividing an intended separation of
property rights.” The plaintiffs correctly note that several historical deeds
contain easements limited to specific sections of the Passway Parcel. For
example, the 1900 deed from Thayer to Niles granted an easement over a
“passway thirty feet wide,” referring only to the 30’ Parcel. Later, in 1910 and
1912, Union Realty conveyed the parcels shown as lots 14 and 15 on the
Thayer Plan (currently owned by a party who is not involved in this case).
Those two deeds each contained two distinct easements: “a right to pass and
repass over a passway thirty (30) feet wide” and “a right to pass and repass
over a passway twenty (20) feet wide.” However, all three of these prior deeds
refer to a “passway” (emphasis added) regardless of which section of the
Passway Parcel they are referring to and, thus, do not conclusively determine
the meaning of “passway” in the Dunsford Deed. Rather, this evidence
supports the trial court’s conclusions that the Dunsford Deed referenced the
disputed area as a “passway,” and that the “Passway” and “Driveway” areas
comprise one contiguous parcel.

The plaintiffs next argue that the trial court misinterpreted the 1922
deed from Union Realty to Chandler. They contend that the term “passway” in
the 1922 deed’s easement language does not encompass the “Driveway” area,
and therefore, the court erroneously concluded that the reference to “passway”
in the Dunsford Deed referred to the “Driveway” area. Even if we assume that
the 1922 deed did not refer to the “Driveway” area, we disagree that this
establishes reversible error in the trial court’s interpretation of the Dunsford
Deed. Given the meaning and intending clause and the other extrinsic
evidence before us, we conclude that Union Realty did not intend to retain
ownership over the 30’ Parcel while conveying the remainder of its surrounding
property. The 1922 deed does not impact our analysis of the Dunsford Deed.

Lastly, the plaintiffs argue that the trial court erred by not adopting the
practical construction evidence from the defendants’ predecessor in title, Susan
Heinecke. The plaintiffs rely on sworn statements from Heinecke explaining
that she did not believe that she owned the 30’ Parcel when she lived on the
property from 1981 until 2005. While admissible extrinsic evidence may
include evidence of the conduct of the parties to the deed and of subsequent
owners, MacKay v. Breault, 121 N.H. 135, 140 (1981), we are not persuaded
that this evidence creates a genuine issue of material fact, particularly in light
of the Union Realty deeds from the same time period as the Dunsford Deed, see

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LeBaron v. Wright, 156 N.H. 583, 585 (2007) (“A subsequent grantee’s
interpretation of language in a deed, however, has no bearing upon our
interpretation, which focuses upon the intention of the parties at the time of
the conveyance.”). The trial court did not err by declining to adopt this
practical construction evidence.

We conclude that the Dunsford Deed’s use of “passway” refers to both
the “Passway” and “Driveway” areas on the Thayer Plan, and thus, the trial
court did not err by ruling that the Dunsford Deed conveyed ownership over
the entire Passway Parcel.

B. Plaintiffs’ Rights Under Their Easement

In the alternative, the plaintiffs argue that if the trial court correctly
ruled that the defendants own the 30’ Parcel, it erred when it ruled that
planting decorative groundcover in the easement area exceeded the plaintiffs’
rights under the easement. The plaintiffs’ deed contains the following express
easement: the “right to pass and repass over a passway 30’ wide . . . said
passway not to be obstructed in any part of its full width, except by the shade
trees now standing thereon.”

The plaintiffs first assert that “[t]he trial court’s analysis was deficient in
the first instance because express easement rights arise from and are guided
by the dominant tenant’s beneficial enjoyment and convenience, not by bare
necessity of use.” They argue that “an alteration or improvement is limited or
restricted only if it is so substantial as to result in the creation and
substitution of a different servitude” (citation omitted), and that the trial court
erred by making no findings that the proposed alterations create a different
servitude. They contend that the easement over the 30’ Parcel has “remained
an integral part of 123 School Street’s front yard, the face the home presents to
the world” and, therefore, “[a] landscaped front walk embodies and furthers
that servitude; it does not substitute a different servitude.”

We agree with the plaintiffs that “[t]he test to determine the right to make
a particular alteration is whether the alteration is so substantial as to result in
the creation and substitution of a different servitude from that which
previously existed.” Duxbury-Fox v. Shakhnovich, 159 N.H. 275, 284 (2009).
The trial court determined that “planting groundcover in lieu of grass is not
necessary to serve the purpose for which the easement was granted.” It
determined that the proposed groundcover was “decorative in nature,” whereas
the easement served as “a means of access to and from School Street.” We
interpret the trial court’s order as concluding that these uses require different
servitudes, and we agree. The plaintiffs do not hold an easement to use the 30’
Parcel as their front yard. They hold the right to “pass and repass” over that
area. Planting decorative groundcover to extend their front yard is qualitatively
different from passing and repassing. It is an additional, distinct burden on

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the servient estate. Thus, the trial court did not err by concluding that the
plaintiffs’ proposed use changes the easement.

Additionally, the plaintiffs argue that “the trial court failed to apply the
rule of reason by considering all of the surrounding circumstances.”
(Capitalization and bolding omitted.) In determining permissible use of an
easement, courts are guided by the principle of “reasonable use.” Boston &
Me. Corp. v. Sprague Energy Corp., 151 N.H. 513, 519 (2004). The principle of
“reasonable use” provides that the rights of the parties to a right-of-way are
questions of fact that must be determined in light of the surrounding
circumstances, including the location and uses of both parties’ property and by
taking into consideration the advantage of one owner’s use and the
disadvantage to the other owner caused by that use. Delaney v. Gurrieri, 122
N.H. 819, 821 (1982).

The plaintiffs assert that their plantings are reasonable because “the
easement has visually and functionally comprised part of [their] front yard”
since its creation, and they have “exclusively maintained” the grassy areas of
the 30’ Parcel. They contend that their easement rights “therefore necessarily
include[] the types of improvements and alterations that are routinely
performed and appear in a front yard — including the ability to alter the
easement to make the front walk to their home function and appear in a
convenient and pleasing way.”

We are unpersuaded. As stated above, the plaintiffs do not hold an
easement to use the 30’ Parcel as their front yard; they hold an access
easement. The plaintiffs emphasize the visual benefits of their plantings, but
their easement does not grant them aesthetic rights. They also point to
evidence that the owners of 123 School Street have historically cut and
fertilized the grass, raked leaves in the fall, and kept the walkway clear of ice
and snow, but these are maintenance activities. The plaintiffs do not contend
that their decorative plantings are part of the maintenance of the easement.
Nor do they contend that the plantings are reasonably necessary to maintain
the easement. Thus, the plaintiffs have not established that their proposed
plantings relate to their right to pass and repass. Because the proposed use is
unrelated to the easement’s purpose of passing and repassing, the trial court
did not err by concluding that it is not a reasonable use of the easement.

Affirmed.

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

Timothy A. Gudas,
Clerk

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