Yvonne Downes v. Kenneth Sarpi & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0204, Yvonne Downes v. Kenneth Sarpi &
a., the court on June 3, 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 plaintiff, Yvonne Downes, challenges an order of the
Superior Court (Bornstein, J.) approving a recommendation of a Judicial
Referee (Houran, R.) finding that the defendants, Kenneth and Donna Sarpi,
had established adverse possession of a “disputed area” of land on Risley Road
in Rumney and quieting title to the property in their names. On appeal, the
plaintiff argues, inter alia, that the trial court erred in concluding that the
defendants, and their predecessors in title, exclusively and notoriously used
the disputed area for more than 20 years prior to the plaintiff’s initiation of this
lawsuit. She also argues that, because the disputed area is located within
Risley Road, which is a right of way for access to six other property owners, the
defendants’ use of the area cannot be adverse or exclusive as a matter of law.
We conclude that the evidence submitted at trial was insufficient to prove all of
the elements of adverse possession by a preponderance of the evidence.
Accordingly, we reverse the trial court’s order and remand.

I. Factual Background

As pertinent to this appeal, the trial court found or the record otherwise
supports the following facts. The parties own abutting properties on Route 25
in Rumney. The deed to the plaintiff’s property excepts and reserves a 20-foot
right of way (ROW) known as Risley Road, which is a private dirt road that
provides access to other properties in the subdivision. The plaintiff’s deed
describes the location of the ROW by reference to a recorded subdivision plan
which indicates that the ROW is located entirely on the plaintiff’s property and
runs along the northerly boundary of the plaintiff’s property. The deeds in the
plaintiff’s chain of title state that the ROW is reserved “for the benefit of all lots
in the subdivision” and further state that “[t]he owners of lots shall be
responsible for one-sixth (1/6) the cost of maintenance and repair to the road.”

In 2021, the defendants constructed a fence on the disputed area that
caused the traveled portion of the ROW to shift onto portions of the plaintiff’s
property outside of the ROW. The record suggests that the disputed area
consists of a six to eight foot wide “bulge” or “hump” of land located inside the
fence installed by the defendants, which lies within the right of way on the
plaintiff’s property. As a result, the plaintiff filed suit asserting claims of
trespass and nuisance and seeking damages for the alleged encroachment and
interferences with the plaintiff’s use and enjoyment of her property. The
plaintiff also sought injunctive relief requesting that the court order the
removal of the fence. The defendants asserted counterclaims alleging that,
although their fence was installed on property deeded to the plaintiff, they and
their predecessors in title have, at least since 1996, continuously, openly, and
exclusively used the disputed area where they installed the fence. In their
counterclaims, the defendants asserted two alternative claims requesting that
they be quieted title to the disputed area by adverse possession and because
the 20-year statutory period for the plaintiff’s claims expired prior to her
initiation of litigation. See RSA 508:2 (2010).

II. Trial Testimony and Rulings

A one-day bench trial was held in January 2024 before the judicial
referee during which the parties presented seven witnesses and introduced 44
exhibits into evidence. In February, the trial court issued an order finding that
the defendants had met their burden of proving adverse possession of the
disputed area by a preponderance of the evidence. In its order, the court first
observed that the parties did not dispute that the defendants’ fence was
installed on the plaintiff’s property and that, pursuant to two separate surveys
of the parties’ properties, the disputed area is located entirely within the ROW
on the plaintiff’s side of the lot boundary. Accordingly, the court determined
that resolving the parties’ dispute hinged on whether the defendants could
meet their burden of proving adverse possession. The court found persuasive
evidence introduced by the defendants indicating that, since at least 1996, they
and their predecessors in title all maintained the disputed area variously as a
lawn, flower or mulch bed; another prior owner had used the area for parking
and allowed her child to play on it.

The court also noted that the defendants purchased the property in
2009, and Ms. Sarpi testified to “a variety of work [the defendants] have done in
the disputed area over the years.” According to Ms. Sarpi, the work involved
installing “the flower bed, . . . a series of fences or curbing ‘beams’ at or near
the far edge of the disputed area, and changing portions of the lawn to mulch
and a gravel walkway.” The court also found significant Ms. Sarpi’s testimony
about a series of aerial photographs taken from 1994 to 2020 which showed
the ROW, “not as the straight roadway shown on the subdivision plan but
instead as curving away from . . . the Sarpi house.”

The court rejected the plaintiff’s argument that “at least until a fence was
installed by the [defendants] after 2009, the use of the disputed area by the
[defendants] and their predecessors was only occasional and thus insufficient
to constitute adverse possession.” According to the court, the primary issue
was notoriety. The court concluded that “the compelling evidence is that the
disputed area was continuously occupied and used by the owners of the

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[defendants’] property for more than 20 years, from 1996 until this litigation
was commenced.” It further found that since 1996 the owners of the
defendants’ property exercised dominion over the disputed area in ways
sufficiently notorious to put the owners of the plaintiff’s property “on guard to
take preventative action” to protect their property rights. Based upon these
findings, the trial court granted the defendants’ adverse possession claim and
quieted title to the disputed area in their names.

The plaintiff filed a motion to reconsider which the trial court denied.
This appeal followed.

III. Analysis

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. Maddock v. Higgins, 176
N.H. 182, 187 (2023). We do not decide whether we would have ruled
differently, but rather, whether a reasonable person could have reached the
same decision based upon the same evidence. Id. It is within the province of
the trial court to accept or reject, in whole or in part, whatever evidence was
presented, but we review the trial court’s application of the law to the facts de
novo. Id.

The plaintiff argues that the trial court erred in finding that the use of
the disputed area by the defendants’ predecessors in title was sufficiently
notorious and exclusive such that their use of the property could be “tacked”
onto the defendants’ use for the purpose of establishing their adverse
possession claim. Instead, the plaintiff maintains that the defendants’
installation of fences after they purchased the property in July 2009 triggered
the notorious and exclusive elements of the adverse possession claim. The
defendants counter that the disputed area, although located within the ROW,
was not available to vehicle travel since at least 1996 and that the existence of
a grassy “hump’” or “bump” in the ROW “is enough to put a reasonable person
on notice that their property was being possessed.” We agree with the plaintiff.

To acquire title to real property by adverse possession, the adverse
possessor must show 20 years of adverse, continuous, exclusive, and
uninterrupted use of the land claimed sufficient to give notice to the true owner
that an adverse claim is being made. Mastroianni v. Wercinski, 158 N.H. 380,
382 (2009). Adverse use is trespassory in nature, and the use of property is
trespassory if it consists of a wrong which the fee holder can prevent or for
which he or she can obtain damages by way of a legal action. Id. (quotations
and citations omitted). Adverse possession of property also requires a measure
of notoriety. Id. at 383. The notorious element of an adverse possession claim
“rests on the public policy that existing rights in land should not be lost unless

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the owner has been put on guard sufficiently to enable him or her to take
preventative action with reasonable promptness.” Id. (citation omitted).

“‘The success or failure of a party claiming adverse possession is not
determined by the subjective intent or the motives of the adverse possessor.’”
Maddock, 176 N.H. at 190 (quoting Blagbrough Family Realty Trust v. A & T
Forest Prods., 155 N.H. 29, 33 (2007)). “Rather the acts of the adverse
possessor’s entry onto and possession of the land should, regardless of the
basis of the occupancy, alert the true owner of the cause of action.” Id. The
law requires more than occasional, trespassory maintenance to perfect adverse
title; the use must be sufficiently notorious to justify a presumption that the
owner was notified of it. Id. The burden of proving adverse possession is on
the party claiming it. Blagbrough, 155 N.H. at 34.

Here, the trial court found:

[T]he compelling evidence is that the disputed area was
continuously occupied and used by the owners of the [defendants’]
property for more than 20 years, from 1996 until this litigation was
commenced. Before the [defendants] bought their property in
2009, the [prior] owners without break used and maintained the
disputed area as their own, maintaining it as a lawn and
establishing and maintaining a flower bed in it. The [defendants]
at first maintained it as a lawn as well and also rebuilt and
maintained the flower bed and then installed fences, berms, gravel
walkways and mulch in the disputed area.

Based upon these findings, the trial court concluded that the use of the
disputed area by the defendants and their predecessors in title was “sufficiently
notorious to put the owners of the [plaintiff’s] property on guard” and
“sufficient to constitute adverse possession of the disputed area.” We conclude
that the trial court’s application of the law to its factual findings was
erroneous.

When evaluating the merits of an adverse possession claim, courts must
strictly construe the evidence supporting an adverse possession claim.
Maddock, 176 N.H. at 191. In Maddock, we concluded that a party’s use and
maintenance of disputed property, which involved occasionally clearing brush,
raking leaves, removing small trees, and walking on a trail, did not rise to the
level of notoriety that would support an adverse possession claim. Id. In
Blagbrough, 155 N.H. at 33-34, we ruled that a combination of: (1) routinely
entering a parcel for walks and recreational activities; (2) allowing children to
play on the disputed parcel; (3) collecting Christmas trees from the area; and
(4) mowing grass, removing trees, and planting flowers on the parcel, did not
support a claim of adverse possession. Similarly, in this case the record
demonstrates that, prior to the installation of fencing and berms, the

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defendants and the prior owners of their property maintained the disputed area
by occasionally mowing it, planting flowers and allowing a child to play on it,
and occasionally using it for parking. Consistent with our caselaw, we cannot
conclude that these uses are sufficiently notorious to support an adverse
possession claim.

In their brief, the defendants suggest that in Mastroianni we rejected the
reasoning underlying our ruling in Blagbrough. They are mistaken. In
Mastroianni, we found Blagbrough inapposite because that case involved an
adverse possession claim based on constructive notice, whereas Mastroianni
involved a claim supported by actual notice. See Mastroianni, 158 N.H. at 384.
More recently in Maddock, we approvingly cited and relied upon the reasoning
and holding in Blagbrough. See Maddock, 176 N.H. at 191. Accordingly,
Blagbrough remains good law.

Our review of the record also reveals that the trial court failed to consider
the fact that the disputed area was located within a ROW to which multiple
property owners, including the defendants, were granted permissive use by
deeds that obligated the owners to share the costs associated with maintaining
the property. As a result, we disagree with the defendants and the trial court
that maintaining a portion of the ROW, to which all of the property owners in
the subdivision had permissive access, should have put the owners of the
plaintiff’s property on notice of an adverse possession claim. See Titcomb v.
Anthony, 126 N.H. 434, 438 (1985) (observing that, in the context of a claim of
adverse possession necessary to extinguish an easement, “[the] erection of
fences or gates . . . is often compatible with the continued use of an easement,
and thus is not adverse”). However, when land over which a use is authorized,
such as a right of way, is fenced off “and used by the servient owner in a way
which indicates the exercise of exclusive dominion by him incompatible with
the future exercise of the easement, such use is adverse and thus sufficient to
commence the prescriptive period.” Id. (quotations and citations omitted).

Here, Ms. Sarpi testified that, after she and her husband purchased the
property in 2009, one of the other property owners in the subdivision regularly
plowed the ROW, including the disputed area, in order to maintain the width of
the 20-foot wide right of way. Ms. Sarpi also testified that the disputed area
was “like a crabby grass-type [of] thing” and “it wasn’t something I planted. It
was [just] there.” On this record, we cannot conclude that the evidence
supports the trial court’s finding that the use of the disputed area by the
defendants and their predecessors in title was exclusive and notorious for more
than 20 years. When the defendants began constructing fences and installing
berms in the disputed area their use of the disputed area became notorious
and potentially adverse. See Knight v. Coleman, 19 N.H. 118, 119-20 (1848)
(finding that adverse possession occurs when a “fence had been maintained for
20 years in the same place, [the adverse possessor] all the time claiming to own

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the fence”). However, the defendants conducted these activities within the 20-
year prescriptive period prior to the plaintiff’s initiation of this action. See RSA
508:2.

Accordingly, we conclude that the trial court erred in granting the
defendants’ adverse possession claim and quieting title to the disputed area in
their names. Given this conclusion, we need not address the plaintiff’s
remaining arguments. Thus, we reverse the trial court’s order and remand.

Reversed and remanded.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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