Eric H. Jostrom, Trustee v. Thomas P. Cochran & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0524, Eric H. Jostrom, Trustee v. Thomas
P. Cochran & a., the court on May 17, 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 defendants, Thomas P. Cochran, Diane J. Cochran,
Benjamin Orcutt, Jennifer A. Orcutt, Alexander Milley, and Linda E. Milley,
appeal an order of the Superior Court (St. Hilaire, J.), following a bench trial
and a view of the property, declaring that any right of way they had over a
portion of land referred to as the “Lombard Passway” had been extinguished by
adverse possession, and quieting title over that land to the plaintiff, Eric H.
Jostrom, Trustee of the Lisa L. Lombard Irrevocable Trust of 2014. We affirm.

“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’Malley v. Little, 170 N.H. 272, 276 (2017) (quotation
omitted). The adverse possessor must prove these elements by a balance of
probabilities. Id. “A use of land is adverse when made under a claim of right
where no right exists.” Id. at 278 (quotation omitted). “To establish a prima
facie case of adverse use, the [plaintiff] must first produce evidence of acts of
such a character that they create an inference of non-permissive use.” Id.
(quotation omitted). “Once the [plaintiff] satisfies this initial burden, the
burden shifts to the [defendant] to produce evidence that the [plaintiff's] use of
the [disputed area] was permitted.” Id. (quotation omitted). “The burden of
persuasion remains at all times on the [plaintiff].” Id. (quotation omitted).
Whether a use of property is adverse or permissive in nature is a question of
fact for the trial court. Id.

When reviewing a trial court’s decision rendered after a trial on the
merits, we will uphold the trial court’s factual findings and rulings unless they
lack evidentiary support or are legally erroneous. Loon Valley Homeowner’s
Ass’n v. Pollock, 171 N.H. 75, 78 (2018). We do not decide whether we would
have ruled differently than the trial court, but, rather, whether a reasonable
person could have reached the same decision based upon the same evidence.
Id. We defer to the trial court’s judgment on such issues as resolving conflicts
in the testimony, measuring the credibility of witnesses, and determining the
weight to be given the evidence. Id. It is within the province of the trial court
to accept or reject, in whole or in part, whatever evidence was presented. Id.
The factual findings of the trial court are particularly “within its sound
discretion . . . when,” as in this case, “a view has been taken.” Sleeper v.
Hoban Family P’ship, 157 N.H. 530, 537 (2008) (quotations omitted).
Conversely, we review the trial court’s application of the law to the facts de
novo. Loon, 171 N.H. at 78.

On appeal, the defendants argue that “[t]here is no evidence of adverse,
continuous, uninterrupted use” of the Lombard Passway “in a manner giving
notice to the defendants that an adverse claim was being made.” To the
contrary, the evidence before the trial court was conflicting, and it was for the
trial court to resolve those conflicts. See id. As the appealing parties, the
defendants have the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial court’s well-
reasoned order, the defendants’ challenges to it, the relevant law, and the
record submitted on appeal, we conclude that the defendants have not
demonstrated reversible error. See id.

Affirmed.

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

Timothy A. Gudas,
Clerk

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