Michael Sklader & a. v. Richard Callahan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0031, Michael Sklader & a. v. Richard
Callahan, the court on June 13, 2025, 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(3). The plaintiffs, Michael Sklader and Susan Armstrong, appeal
an order of the Superior Court (Leonard, J.) entering judgment in favor of the
defendant, Richard Callahan, in this dispute over docking space. We affirm.

The trial court found the following facts. The parties own abutting
properties on Lake Winnipesaukee. The defendant owns three boat docks to
the north of a boathouse owned by the plaintiffs. In May 2022, the defendant
placed a jet ski lift on his southernmost dock such that it prevented the
plaintiffs from docking a boat on the north side of their boathouse. The
plaintiffs filed this action seeking removal of the jet ski lift and damages for lost
rental income for their north-side docking space.

Following a bench trial, the trial court concluded that “the plaintiffs are
not entitled to dock on the northside dock of their boathouse” pursuant to RSA
482-A:3, XIII. That statute provides, in relevant part:

Boat docking facilities may be perpendicular or parallel to the
shoreline or extend at some other angle into a water body,
depending on the needs of the landowners, factors related to safe
navigation, and the difficulty of construction. However, any boat
secured to such a dock shall not extend beyond the extension of
the abutter’s property line.

RSA 482-A:3, XIII(b) (2024). Noting that the plaintiffs’ land is “bounded to the
north by the defendant’s property,” the court concluded: “Therefore, any boat
the plaintiffs dock on the northside dock necessarily crosses into the
defendant’s property in violation of RSA 482-A:3, XIII(b).” As a result, the court
enjoined the plaintiffs from docking on the north side of their boathouse. This
appeal followed.

When reviewing a trial court’s decision issued after a trial on the merits,
“we uphold the trial court’s factual findings and rulings unless they lack
evidentiary support or are legally erroneous.” Jesurum v. WBTSCC Ltd. P’ship,
169 N.H. 469, 476 (2016). “[W]e review the trial court’s application of the law
to the facts de novo.” Id.
 The plaintiffs assert that they and their predecessors in interest had
“exercise[d] . . . their littoral rights as the boathouse owners” by “docking boats
on their north exterior dock slip for at least 46 years prior to this action.” They
contend that the trial court erred in concluding that RSA 482-A:3, XIII(b)
codified the common law of littoral rights, and argue that, to the contrary, the
statute “substantially narrowed the common law scope of littoral rights and, as
such, cannot be applied retrospectively to bar a use that had been in existence
for decades prior to its enactment.” See N.H. CONST. pt. I, art. 23.

In Heston v. Ousler, 119 N.H. 58 (1979), we “adopt[ed] a rule of
reasonable use as the guidepost in adjudging the permissible exercise of a
shorefront owner’s littoral rights.” Heston, 119 N.H. at 62. Under that “rule of
reasonableness,” one shorefront owner’s exercise of his littoral rights “must be
restricted so as not to interfere with the correlative rights of other littoral
owners.” Id. We held that the trial court in that case “incorrectly ruled that
the parties have fixed littoral dominions that may be ascertained by a simple
extension of their upland boundary lines.” Id. at 62. Accordingly, to the extent
that the statute utilizes “the extension of the abutter’s property line,” RSA 482-
A:3, XIII(b), to limit a shorefront owner’s exercise of littoral rights, the plaintiffs
are correct that it alters, rather than codifies, the common law.

Nevertheless, we disagree with the plaintiffs’ contention that the trial
court’s application of RSA 482-A:3, XIII(b) “violate[s] the New Hampshire
Constitution’s ban on retrospective laws.” “Retrospective laws are highly
injurious, oppressive, and unjust. No such laws, therefore, should be made,
either for the decision of civil causes, or the punishment of offenses.” N.H.
CONST. pt. I, art. 23. “[E]very statute which takes away or impairs vested
rights, acquired under existing laws, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to transactions or
considerations already past, must be deemed retrospective.” In the Matter of
Goldman & Elliott, 151 N.H. 770, 772 (2005) (quotation omitted). To be
considered a vested right, “a right must be more than a mere expectation based
on an anticipation of the continuance of existing law; it must have become a
title, legal or equitable, to the present or future enforcement of a demand, or a
legal exemption from the demand of another.” Id. at 774 (quotation omitted).

We conclude that the plaintiffs’ claim to maintain the disputed use of
their north-side dock is merely a desire for the continuance of the rule that
existed prior to the enactment of RSA 482-A:3, XIII(b). Indeed, they assert that
“the only equitable solution is for a court to order that both parties have the
use and enjoyment of their docks, and neither party may unreasonably
interfere with the other’s use.” “[A] mere expectation based on an anticipation
of the continuance of existing law,” however, is not a vested right. Id.

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 Nor can the plaintiffs claim a vested right to use the disputed littoral area
by prescription. The trial court noted that the plaintiffs had never moved to
amend their complaint to assert a claim for prescription, and that, at trial,
counsel for the plaintiffs represented that they are “not asserting a prescriptive
easement on somebody else’s water as it is state water.” Following trial, the
plaintiffs raised a prescription claim in their request for proposed findings of
fact and rulings of law and the supporting memorandum of law. The trial court
concluded, however, that “[a]t this stage in the litigation of this action, it would
be unjust to allow the plaintiffs to pursue a legally ambiguous claim, after
representing [they] would not do so and depriving the defendant of the
opportunity to fully address any such claim through the submission of
evidence.” We discern no error. See Tessier v. Rockefeller, 162 N.H. 324, 340
(2011) (observing that whether to allow a party to amend their pleadings rests
in the sound discretion of the trial court, and that we will not disturb the
court’s decision absent an unsustainable exercise of discretion). Because the
plaintiffs have demonstrated neither a prescriptive nor vested right to dock on
the north side of their boathouse, their constitutional argument fails.

Finally, the plaintiffs argue that the trial court erred as a matter of equity
by enjoining them from docking along the north-side dock of their boathouse.
They contend, among other things, that the trial court’s decision is not
supported by sufficient evidence. We disagree.

“The propriety of affording equitable relief in a particular case rests in the
sound discretion of the trial court to be exercised according to the
circumstances and exigencies of the case.” Cook v. Sullivan, 149 N.H. 774,
782 (2003). “We will uphold a trial court’s equitable order unless its decision
constitutes an unsustainable exercise of discretion.” Id.

As discussed above, the trial court found that any boat docked on the
plaintiffs’ north-side dock necessarily encroaches on the defendant’s property
rights adjacent to his shorefront. Further, given the limited space between the
parties’ docks, the court found that it would be difficult, and lead to a high risk
of damage, “for both parties to have full use and enjoyment of the area between
their docking structures simultaneously.” Accordingly, the trial court
concluded that “sharing the space between the docks is not a safe or workable
option for the parties,” and therefore enjoined the plaintiffs from docking along
the north-side dock of their boathouse. Based upon our review, these findings
are supported by evidence in the record, and “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 evidence.”
Jesurum, 169 N.H. at 476 (quotation omitted). To the extent that the plaintiffs
also argue that the trial court’s decision is unreasonable because it exceeds the
scope of their requested relief, we note that the defendant specifically requested
the relief awarded by the trial court. Regardless, “once a right to equitable
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relief has been established, the powers of the Trial Court are broad and the
means flexible to shape and adjust the precise relief to the requirements of the
particular situation.” Webb v. Rye, 108 N.H. 147, 153 (1967).

Affirmed.

DONOVAN, and COUNTWAY, JJ., concurred; NADEAU, J., retired
superior court chief justice, specially assigned under RSA 490:3, II, concurred.

Timothy A. Gudas,
Clerk

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