William Ryan & a. v. Dawn Ryan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0301, William Ryan & a. v. Dawn Ryan,
the court on October 25, 2024, 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
issue on appeal is whether the Superior Court (Temple, J.) erred in determining
that the defendant, Dawn Ryan, is prohibited from using an easement to
access after-acquired property. We affirm.

I. Background

The following facts were found by the trial court or are otherwise
supported by the record. The parties own abutting parcels in Wilton with
frontage on Stage Coach Road. In 1996, the parties’ lots were part of an
approximately seventy-one acre undivided parcel known as Lot A-47, then
owned by Rosemary Duggan and William Ladd (RDWL). In 1996, RDWL
received approval from the Wilton Planning Board to subdivide an
approximately eleven acre lot — Lot A-47-1 — from Lot A-47. The subdivision
map shows a “farm road” beginning at Stage Coach Road on Lot A-47-1
running east/west along the newly created property line between Lot A-47-1
and Lot A-47. The road continues onto Lot A-47 where it traverses a stream
over a bridge and then returns to Lot A-47-1 where it connects with a “cart
road” running north/south across Lot A-47-1. The farm road allows access to
the easternmost area of Lot A-47-1.

In August 1996, RDWL conveyed the newly-created Lot A-47-1 to David
and Elizabeth Deysher by warranty deed. The deed created an appurtenant
easement pertaining to the farm road that benefitted Lot A-47-1. The deed
provides that RDWL’s conveyance of Lot A-47-1, “[c]ontaining 11.291 acres,” is
made:

Together with an access easement (such being an
encumbrance running with the land constituting Lot A-47 on said
plan of land) over a .386-acre area located on Lot A-47 (including a
portion of the 8’ farm road and bridge), as shown on said plan of
land, for the limited purpose of allowing grantees, their heirs,
successors and assigns access to and from that portion of the
premises lying west of the stream spanned by said bridge and that
portion of the premises lying east of said stream.
Thereafter, RDWL subdivided the remaining portion of Lot A-47 into two lots,
Lot A-47-2 and Lot A-47-3. In 1997, RDWL conveyed Lot A-47-2 and Lot A-47-
3, respectively, to new owners. Both conveyances were made subject to the
easement RDWL had granted in 1996 to the Deyshers to use the farm road.
The plaintiffs, William Ryan and Corinne Ryan, purchased Lot A-47-2 in 2018
by warranty deed.

In 1999, the then-owners of Lot A-47-3 and the Deyshers, who still
owned Lot A-47-1, obtained approval from the Wilton Planning Board to
reallocate the amount of land in their respective parcels by making a lot line
adjustment, the effect of which was to remove from Lot A-47-3 approximately
fourteen acres (Parcel A) and three acres (Parcel B) and add them to Lot A-47-1.
Parcels A and B were then conveyed to the Deyshers by warranty deed. In
2018, the Deyshers transferred Parcel A back to the owners of Lot A-47-3
pursuant to another lot line adjustment. In 2019, the Deyshers conveyed Lot
A-47-1 — consisting of the original tract and Parcel B — to the defendant.

After disputes arose between the plaintiffs and the defendant over the
cutting of vegetation in the easement by the defendant’s landscapers and the
defendant’s replacement of the bridge component of the farm road, the
plaintiffs brought suit seeking, among other things, declaratory relief that “use
of the access easement to provide access to Parcel B . . . is prohibited.” The
parties thereafter stipulated that the access easement issue was solely a legal
argument to be decided on trial memoranda. After considering the parties’
arguments and the applicable law, the trial court ruled in favor of the plaintiffs
on this issue. The court found that the intent of the parties when the
easement was created “was to allow the owners of Lot A-47-1 to use the farm
road for the limited purpose of accessing other areas of Lot A-47-1 as that lot
existed at the time of the conveyance.” “As such,” the court concluded, “the
general rule—that an appurtenant easement cannot be used to serve a
nondominant estate—applies” and, thus, the use of the access easement to
provide access to Parcel B is prohibited. (Quotation omitted.) The trial court
subsequently denied the defendant’s motion to reconsider. This appeal
followed.

II. Analysis

On appeal, the defendant argues that the trial court erred: (1) when it
ruled that the plaintiffs were entitled to an order declaring that the use of the
easement to provide access to Parcel B is prohibited; and (2) when it failed to
rule that Parcel B became part of the dominant estate as a matter of law. The
defendant also asserts that the trial court’s order was unreasonable or unjust
because it denies her “reasonable access” to 3.2 acres of her property.

We first address whether the trial court erred in ruling that use of the
easement to access Parcel B is prohibited. Resolution of this issue requires

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that we interpret the language of the original deed establishing the easement at
issue. 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
language of the deed is clear and unambiguous, we interpret the intended
meaning from the deed itself, without resorting to extrinsic evidence. See
Appletree Mall Assocs. v. Ravenna Inv. Assocs., 162 N.H. 344, 347 (2011).

In 1996 when the easement was created, Lot A-47-1 consisted of
approximately eleven acres as described in detail in the deed. The deed
expressly states that the easement is “for the limited purpose of allowing
grantees” access “to and from that portion of” the eleven-acre parcel “lying west
of the stream spanned by said bridge” and that portion of the eleven-acre
parcel “lying east of said stream.” (Emphasis added.) Under the plain
language of the deed, the trial court determined that “the intent of the parties
when the easement was created was to allow the owners of Lot A-47-1 to use
the farm road for the limited purpose of accessing other areas of Lot A-47-1 as
that lot existed at the time of the conveyance.” (Quotation omitted.) The trial
court reasoned that, “[h]ad the parties intended to allow the grantees to use the
easement to access areas beyond the conveyed premises, i.e. newly-acquired
tracts in the future, they could have used words to that effect.” See Arcidi v.
Town of Rye, 150 N.H. 694, 701 (2004) (deed provided that the scope of the
easement was “for the benefit of any and all property presently or hereinafter
owned, occupied or used by Grantee”). The trial court further found that the
land now referred to as Parcel B was owned in 1996 by RDWL as part of Lot A-
47. Therefore, the court reasoned, “[a]bsent language to the contrary, it seems
illogical that RDWL, as the then-owners of Parcel B, intended to grant the
Deyshers the right to use the farm road to access other areas of RDWL’s lot
that were not being conveyed at the time.”

The defendant asserts that the trial court “mistakenly overlooked
exceptions to the general rule that an appurtenant easement cannot be used to
serve a non-dominant estate,” including when the addition of other land to the
dominant estate does not overburden or change the easement. (Bolding
omitted.) In addition, she argues that the “rule of reason” should be applied.
We disagree.

As noted above, “[t]he general modern rule regarding the interplay
between an easement appurtenant and a nondominant estate is that an
appurtenant easement cannot be used to serve a nondominant estate.”
Ettinger v. Pomeroy Ltd. P’ship, 166 N.H. 447, 451 (2014) (quotation omitted);
see Restatement (Third) of Property, Servitudes § 4.11 (2000) (“Unless the
terms of the servitude . . . provide otherwise, an appurtenant easement . . .
may not be used for the benefit of property other than the dominant estate.”
(bolding omitted)). “The purpose undergirding the rule is that the owner of the

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easement appurtenant may not materially increase the burden of the easement
upon the servient estate or impose a new or additional burden.” Ettinger, 166
N.H. at 451 (quotation omitted). “The doctrine was intended to protect the
servient estate from the use of an easement in a manner or to an extent not
within the reasonable expectations of the parties at the time of its creation.”
Id. (quotation omitted).

“Our case law, however, does not foreclose the possibility of an easement
benefiting a non-dominant tenement.” Heartz v. City of Concord, 148 N.H.
325, 330 (2002). Rather, we have “aligned ourselves with courts that have
concluded that the mere addition of other land to the dominant estate does not
necessarily constitute an overburden or misuse of an easement.” Ettinger, 166
N.H. at 452 (quotation and brackets omitted). In rejecting a bright-line rule, we
implied that the determination whether an easement may be applied to a
nondominant estate requires inquiry into the intent of the parties when the
easement was created. Id. To determine that intent, we rely on the plain and
unambiguous language of the deed that created the easement. Id.; see Heartz,
148 N.H. at 331 (“[T]he language creating a servitude should be interpreted to
carry out the parties’ intentions and the purposes of the servitude.”); Lussier v.
N.E. Power Co., 133 N.H. 753, 756-57 (1990) (explaining that 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).

As the trial court recognized, the primary consideration is the intent of
the parties when the easement was created. See Ettinger, 166 N.H. at 453;
Lussier, 133 N.H. at 756 (“The beginning and end of our inquiry is found in the
words of the easement deeds.”). Here, that unambiguous intent was that the
easement be “for the limited purpose” of allowing access “to and from that
portion of the premises” being conveyed — Lot A-47-1 consisting of 11.291
acres — “lying west of the stream” and “lying east” of the stream spanned by
the bridge. Given that plain language, there was no need for the trial court to
consider whether the inclusion of after-acquired land increased the burden
placed on the easement. Cf. Flanagan v. Prudhomme, 138 N.H. 561, 574
(1994) (“An unrestricted right-of-way is subject to a determination of
reasonable use.” (emphasis added)); Soukup v. Brooks, 159 N.H. 9, 19 (2009)
(where the deed created a “perpetual right and easement for all purposes,” the
use of the right of way to benefit other property may not be prohibited “unless
such use imposed an unreasonable burden” on the servient lot (quotation,
capitalization, and bolding omitted)); Heartz, 148 N.H. at 331-32 (although the
deed allowed the easement to be used “at all times and for all purposes,” we
may determine “whether a particular use of an easement would create an
unreasonable burden”).

The defendant argues that the trial court erred when it “failed to address”
her argument that Parcel B became part of the dominant estate in 2003 “as a
matter of law.” (Bolding omitted.) The defendant claims that through

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reconfigurations of the properties and a series of property transfers subsequent
to August 1996, the easement burdening Lot A-47-2 “was expanded to include
Parcel B as part of the dominant estate.” However, we agree with the plaintiffs
that the defendant fails to point to “any agreement or consent by the [plaintiffs]
or their predecessors to increasing the scope of the easement on their land.”
See Farmington Library Association v. Trafton, 84 N.H. 29, 31 (1929) (“A way
appurtenant to land cannot be extended to be appurtenant to other land except
by grant or prescription.”).

Finally, the defendant asserts in her brief that the trial court “failed to
rule” on her alternative argument “that she at least has an easement by
necessity.” However, counsel represented at oral argument that this appeal is
limited to the defendant’s assertion that a plain reading of the easement grants
the defendant the right to use the easement to access Parcel B, and that
“easement by necessity is not an argument” being made. Accordingly, we deem
the “easement by necessity” argument waived. We have considered the
defendant’s remaining arguments, and have concluded that they do not
warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred;
BASSETT, J., dissented.

Timothy A. Gudas,
Clerk

BASSETT, J., dissenting. In Ettinger v. Pomeroy Limited Partnership, 166 N.H. 447, 452 (2014), we explained that the mere addition of other land to
the dominant estate does not necessarily constitute an overburden or misuse of
an easement. The determination of whether an easement may be applied to
after-acquired property requires inquiry into the intent of the parties when the
easement was created. Ettinger, 166 N.H. at 452. Here, the easement is for
the limited purpose of allowing access to the dominant estate. At the time the
easement was conveyed by RDWL, Parcel B was owned by RDWL. Thus, RDWL
retained the right to use the property that was subject to the easement in order
to access Parcel B.

The trial court concluded, and the majority agrees, that in the deed
creating the easement, the use of the phrase “for the limited purpose of
allowing . . . access” plainly demonstrates the parties’ intent to limit the use of
the easement to access only the then-existing premises — that is, the property
being conveyed by the deed. I disagree. In my view, particularly in light of the
fact that RDWL retained Parcel B at the time the easement was created, the

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limitation in the deed limits only the use of the easement — that is, the
easement is to be used for access, not for other unrelated purposes.

As the majority acknowledges, we have rejected the bright-line rule set
forth in the Restatement (Third) of Property, Servitudes that “[u]nless the terms
of the servitude determined under § 4.1 provide otherwise, an appurtenant
easement . . . may not be used for the benefit of property other than the
dominant estate.” Restatement (Third) of Property, Servitudes § 4.11 (2000).
Thus, the relevant inquiry is not simply whether the deed expressly provides
that the easement may be used to benefit property other than the dominant
estate as it existed at the time of the conveyance. Rather, we should also
consider whether the deed’s language indicates an intention to prevent such
use. See Soukup v. Brooks, 159 N.H. 9, 19 (2009).

In my view, the deed is ambiguous as to whether the “limited purpose of
allowing . . . access” includes allowing access to after-acquired adjacent
property such as Parcel B. The deed provides that the purpose of the easement
is to provide access to the “premises,” but is silent as to whether “premises”
may include future changes resulting from lot line adjustments or the
acquisition of adjoining property to the boundaries thereof. Cf. Ettinger, 166
N.H. at 452 (deed granting easement “to use” Winter Road Extension was
ambiguous regarding whether easement could be used to benefit after-acquired
property). Accordingly, I would vacate and remand for further proceedings.
See id. at 453.

The purpose of the doctrine that an easement cannot be made to attach
to other land which the owner of the dominant estate may subsequently
acquire is to protect the servient estate from the use of an easement in a
manner or to an extent not within the reasonable expectations of the parties at
the time of its creation. See id. at 451. “The purpose undergirding the rule is
that the owner of the easement appurtenant may not materially increase the
burden of the easement upon the servient estate or impose a new or additional
burden.” Id. (quotation omitted). “[W]hen no significant change has occurred
in the use of the easement from that contemplated when it was created, . . . the
mere addition of other land to the dominant estate does not constitute an
overburden or misuse of the easement.” Carbone v. Vigliotti, 610 A.2d 565,
569 (Conn. 1992); see also Soukup, 159 N.H. at 19 (ruling that use of the
easement to benefit a non-dominant tenement would not be prohibited “unless
such use imposed an unreasonable burden on the servient . . . lot”). I would
instruct the trial court on remand to consider, inter alia, the proposed use and
the likely development of the dominant estate, see Ettinger, 166 N.H. at 453,
and to determine whether on the facts of this case, the benefits of the easement
may accrue to the after-acquired, adjacent property here at issue.

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 By construing the deed as unambiguously limiting access to the
premises as the premises were configured at the time of the conveyance, the
majority in essence adopts the Restatement view that the terms of the servitude
must expressly permit the easement to serve any after-acquired property. As
noted above, our cases reject that approach, concluding that the mere addition
of other land to the dominant estate “does not necessarily constitute an
overburden or misuse of an easement.” Id. at 452 (quotation and brackets
omitted). This is fully consistent with the purpose that undergirds the
Restatement rule — preventing the owner of the easement from materially
increasing the burden of the easement upon the servient estate or imposing a
new or additional burden. See id. at 451.

In cases in which a deed expressly addresses after-acquired property,
determining the parties’ intent is straightforward. The difficulty arises when,
as here, the deed is silent as to the parties’ intent regarding after-acquired
property. In many, if not most, such cases, the parties may not have
contemplated one way or the other whether the easement should benefit a later
addition of land to the dominant estate. The Restatement rule would reject
allowing use of the easement in such cases, even when doing so would not
materially increase the burden upon the servient estate or impose a new or
additional burden, on the ground that the deed does not expressly permit the
expansion. Our cases, on the other hand, also consider whether the deed’s
language demonstrates an intent to prevent the expansion. When the deed
provides neither for nor against use of an easement for the benefit of land
added to a dominant estate, we should look to factors such as the proposed
use and likely development of the dominant estate to resolve the matter. This
approach better fits with the purpose of preventing material increases in the
burden upon the servient estate or the imposition of new or additional
burdens. See id.

By construing the deed’s silence regarding the effect of later adjustments
of or additions to the boundaries of the “premises” as if the deed expressly
addressed them, the majority reinstates the bright-line rule our cases reject.
The result is to affirm the trial court’s order “declaring that use of the access
easement to provide access to Parcel B . . . is prohibited.” (Quotation omitted.)
The defendant alleges that her intent is to re-establish a pasture on her
property, including Parcel B. She states in her brief that the trial court’s order
means that if she uses the easement to transport animals to her property, they
cannot graze on Parcel B. If she herself wishes simply to access Parcel B, she
is prohibited by the trial court’s order from using the easement to do so —
rather, she “would have to ford Mill Brook to access Parcel B.” That such
results may flow from affirming the trial court’s order is further reason why we
should vacate and remand.

For all the reasons set forth above, I respectfully dissent.

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