Martin v. Far Echo Harbor Club

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
Case No. 2025-0077
Citation: Martin v. Far Echo Harbor Club, 2026 N.H. 9

DONALD J. MARTIN

v.

FAR ECHO HARBOR CLUB, INC.

Submitted: November 6, 2025
Opinion Issued: March 3, 2026

Ransmeier & Spellman P.C., of Concord (Biron L. Bedard and Bridget M.
Denzer on the brief), for the plaintiff.

Morrison Mahoney LLP, of Manchester (Linda M. Smith and Edwin F.
Landers, Jr. on the brief), for the defendant.

DONOVAN, J.

¶1 The plaintiff, Donald J. Martin, appeals a decision of the Superior
Court (Attorri, J.) granting summary judgment to the defendant, Far Echo
Harbor Club, Inc., on the plaintiff’s petition to quiet title. The plaintiff argues
that the trial court erred by concluding that his property does not have implied
or prescriptive easement rights to use roadways and a lakefront beach area
owned by the defendant. We conclude that the trial court erred by granting

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summary judgment to the defendant on the plaintiff’s claim that his property
has implied easement rights for the use of two nearby roadways, including
Park Lane. We also conclude, however, that the trial court properly granted
summary judgment to the defendant on the plaintiff’s implied and prescriptive
easement claims for the use of the defendant’s other roadways and lakefront
beach area. Accordingly, we affirm in part, reverse in part, and remand.

I. Background

¶2 The following facts are established by the summary judgment record.
The plaintiff and the defendant both own real property in Moultonborough to
the northeast of Lake Winnipesaukee between the lake and Moultonboro Neck
Road. The plaintiff’s property, identified as Town of Moultonborough Tax Map
245, Lot 062 and referred to by the parties as Lot 3, abuts Park Lane, which
the defendant owns.1 The defendant, a nonprofit corporation, owns roadways,
paths, and a lakefront beach area (Lot 200), the use of which it reserves for its
members. The parties dispute whether Lot 3 has rights to use the defendant’s
property — specifically, the roadways and Lot 200.

¶3 The parties’ properties derive from a parcel of land that was once
owned by Leisuretime, Inc. In 1959, Leisuretime recorded a subdivision plan
in the Carroll County Registry of Deeds dividing the property into more than
100 numbered lots, as well as “Boat & Beach Area #200” (Lot 200) and “Play
Area #300” (Lot 300). The 1959 plan does not demarcate northerly or easterly
boundaries for the Lot 300 play area.2 The 1959 subdivision plan is appended
to this opinion as Exhibit A.

¶4 Leisuretime thereafter began conveying the subdivided lots. Lot 1,
which Leisuretime deeded to William and Irene Hauger in 1960, was among the
early conveyances. A second deed in 1966 expressly conveyed to the Haugers:

A right of ingress and egress over roads as shown on [the 1959
subdivision plan] to Lot No. 1 as shown on said Plan . . . together
with a right of use and enjoyment of the boat and beach area
referred to as Area No. 200 as shown on said plan, said rights to be
enjoyed in common with other lot owners within the subdivision
and subject to the rules and regulations of Far Echo Harbor Club.

¶5 In 1968, Leisuretime sold its property, subject to existing liens,
easements, and prior conveyances, to Preferred Properties, Inc. (PPI). The

1 The plaintiff, who has been a member of defendant Far Echo Harbor Club, Inc. since 1984, has
access to the defendant’s roadways and lakefront beach area by way of his ownership of other
nearby properties — specifically, Lots 49, 59, and 79 (collectively, “the Farmhouse”). The plaintiff
also owns the property between Lot 3 and the Farmhouse.

2 Park Lane was formerly called Park Drive.

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following year, PPI deeded all unsold lots “shown on a revised plan of lots of Far
Echo Harbor” to Invesco, Inc., although PPI retained ownership of Lot 200, Lot
300, and the roadways and paths. The deed conveyed to Invesco a list of lots
“[t]ogether with the right to use in common with others all rights of way as
shown on said plan, and the right to use for boating, bathing, swimming, and
recreational purposes that area as designated on said plan as Area #200,”
subject to PPI’s “right to erect docks and other recreational facilities thereon.”

¶6 In May 1972, PPI recorded plans subdividing Lot 300. The final
subdivision plan depicts the subdivided Lot 300 abutting “Far Echoes Road” to
the northwest, “Park Lane” to the southwest, “Preferred Properties ‘Barn
Parcel’” to the south, and “Moultonboro Neck Road” to the east. As relevant
here, the plan shows Lot 3 abutting Park Lane. The 1972 subdivision plan is
appended to this opinion as Exhibit B.

¶7 Two months later, in July 1972, PPI conveyed “[a]ll boat docks and
wharfs, together with the stairs and walkways thereto, presently situated at Far
Echo Harbor Club . . . together with the right to construct and maintain
additional boat docks and wharfs” to the defendant. In April 1973, PPI also
conveyed the roadways and Lot 200 to the defendant, although it reserved the
right to convey use rights for the Lot 200 beach area specifically to the lots
comprising the “Farmhouse.”

¶8 In November 1972, PPI conveyed Lot 3 and Lot 4 from the subdivided
Lot 300 to Russell A. Roberts. The Roberts deed, however, did not expressly
grant any right of ingress or egress over or access to any other property owned
by PPI, including Lot 200. In 1975, Roberts conveyed Lot 3 to Allyn and Phyllis
Gordon. In 1986, the Gordons conveyed Lot 3 to David Sunderland as
custodian of Laura E. Sunderland and Ann Lee Sunderland, and in 2000,
Sunderland conveyed Lot 3 to Darren Petersen.

¶9 In August 2002, the then-chairman of the defendant’s executive
committee responded to an inquiry by Petersen and informed him that the
parcel from which Lot 3 derived “never had beach rights, but was to be
common land,” and “[w]hen the land was divided into three lots and sold out of
the community (a decision made by the developer), the new lots no longer had
any connection to the Far Echo Harbor Club Association.” He noted, however,
that Petersen was “personally always welcome on the Far Echo Harbor
waterfront as a guest under [his] parents’ membership.” In 2015, the
defendant again advised Petersen that “[t]he original deed from [PPI] to Russell
A. Roberts does not make Lot #3 and Lot #4 part of Far Echo Harbor
Association.”

¶10 Petersen conveyed Lot 3 to the plaintiff in 2018. The plaintiff
thereafter filed a petition to quiet title, seeking a declaration that Lot 3 “enjoys
the right to use all common areas and any other rights as enjoyed by members”

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of Far Echo Harbor Club. In the alternative, he sought a prescriptive easement
“to use Community Area #200 and all other common areas” owned by the
defendant.

¶11 The defendant moved for summary judgment, and the trial court
granted its motion. Regarding the plaintiff’s quiet title claim, the trial court
found that the plaintiff could not demonstrate the existence of a right to use
the defendant’s property because “Lot 3, as a subdivided part of Lot 300, was
not part of a common scheme which enjoyed the benefits as a ‘member[] of Far
Echo Harbor Club’ in the conveyance from PPI” to the defendant. Regarding
the plaintiff’s prescriptive easement claim, the trial court determined that the
plaintiff “cannot identify any person who adversely used [the defendant’s]
property and owned property rights to the subdivided Lot 300,” and that he
had failed to “set forth specific facts showing that there is a genuine issue for
trial.”

¶12 The plaintiff moved for reconsideration. The defendant objected,
and the trial court denied the plaintiff’s motion “for the reasons stated in the
objection and in the original order.” This appeal followed.

II. Discussion

¶13 When reviewing the trial court’s grant of summary judgment, we
consider the affidavits, and all inferences properly drawn therefrom, in the light
most favorable to the non-moving party. Loeffler v. Bernier, 173 N.H. 180, 183
(2020). If there is no genuine issue of material fact, and if the moving party is
entitled to judgment as a matter of law, 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] party opposing summary judgment must do so by affidavits or
by reference to depositions, answers to interrogatories, or admissions, . . .
set[ting] forth specific facts showing that there is a genuine issue for trial.”
Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 290 (2013)
(quotation omitted). A fact is material if it affects the outcome of the litigation
under the applicable substantive law. Franciosa v. Hidden Pond Farm, 171
N.H. 350, 354 (2018).

A. Easements by Implication

¶14 We first consider the plaintiff’s arguments that Lot 3 has implied
easement rights to use Park Lane under two theories: estoppel by deed and
equitable estoppel (estoppel in pais). As an initial matter, the defendant
counters that the plaintiff failed to raise these arguments in the trial court and
that they are not preserved for appeal. The plaintiff responds that he preserved
these arguments by raising them in his motion for reconsideration.

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[¶15] In his motion for reconsideration, the plaintiff argued that the trial
court “overlooked both fact and law when making its ruling” because Park Lane
and other roadways are “shown on the subdivision plan and referenced as a
boundary” in the property description of Lot 3. He also asserted that Lot 3
“enjoys the rights of access to at least Park Lane and Far Echo Road” because
“the operative plan subdividing Lot #300 clearly shows Park Lane and Far Echo
Road, suggesting that the grantor . . . intended to convey rights of access to the
roadways.” The defendant objected, disputing the plaintiff’s claim that the
prior deed’s reference to the subdivision plan demonstrated an “intent to
convey right of access” to its roadways. The trial court denied the plaintiff’s
motion “for the reasons stated in the objection and in the original order.”
Accordingly, we conclude that the plaintiff’s argument is preserved for appeal.
See Ross, Tr. v. Ross, 170 N.H. 331, 337 (2017) (concluding argument was
preserved because “although the trial court did not address [the defendant’s
argument] in its order, the defendants’ failure to raise the issue earlier did not
deprive the trial court of the opportunity to address it”); Mortgage Specialists v.
Davey, 153 N.H. 764, 786-87 (2006).

¶16 Turning to the merits, the plaintiff argues that the 1972 Roberts
deed’s use of Park Lane as a boundary call for Lot 3, and that deed’s reference
to the 1972 subdivision plan, created implied easement rights to use Park
Lane. He claims that the defendant is therefore estopped “from denying that
Lot 3 has an easement to use Park Lane.” The defendant, on the other hand,
claims that estoppel by deed is inapplicable here because the Roberts deed
contained no covenants and did not use Park Lane as a boundary call. It also
asserts that the plaintiff cannot, as a matter of law, demonstrate that equitable
estoppel applies because he cannot demonstrate reliance on language in prior
deeds in Lot 3’s chain of title.

¶17 Resolving this issue requires the interpretation of deeds, which
presents a question of law that we review de novo. White v. Auger, 171 N.H.
660, 663 (2019). 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. 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.

¶18 We have previously recognized that “[w]here property is conveyed in
a deed and one or more of the calls is an abuttal on a private way there is a
grant or at least a presumption of a grant of an easement in such way when
the way is owned by the grantor.” Loeffler, 173 N.H. at 183; 700 Lake Avenue
Realty Co. v. Dolleman, 121 N.H. 619, 623 (1981); see also Greenwood v. The
Wilton Railroad, 23 N.H. 261, 265 (1851). In these circumstances, “the

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grantor, and all claiming under him, are estopped by deed from denying such
an easement exists,” and “[i]t is of no consequence that the fee to the [private
way] remains in the hands of the original grantor or his assigns, or that the
grantor did not intend to grant an easement, or that the easement is not one of
necessity.” Dolleman, 121 N.H. at 623 (citations omitted). “Such an estoppel
is one by deed because the deed on its face makes either an express grant or
one arising by necessary implication and prevents the grantor from denying the
representation made.” Id. at 624 (citation omitted).

¶19 In Dolleman, we distinguished cases “where the face of the deed
itself represents that the conveyed parcel borders on a way” from those “where
the deed only refers to a plan which in turn indicates the existence or planned
construction of streets and ways.” Dolleman, 121 N.H. at 623; compare
Greenwood, 23 N.H. at 265 (deed described premises “as bounded on the
corner” of two named streets), with Regan v. Hovanian, 115 N.H. 40, 41 (1975)
(deeds referenced recorded plan that depicted streets), and Douglass v.
Company, 76 N.H. 254, 255-56 (1911) (deed referred to recorded plan). In the
latter circumstance, implied easements for the use of streets may arise when
property owners “all took title with reference to the same plan which showed
the various streets.” Regan, 115 N.H. at 42-43.

¶20 When “the deed refers with particularity to a recorded map or plat .
. . the grantor adopts and incorporates the map as a part of the deed, and the
boundaries set forth on the map should be construed as if written in the deed.”
Duchesnaye v. Silva, 118 N.H. 728, 732 (1978). Commentators and other
jurisdictions are in accord. See 25 Am. Jur. 2d Easements and Licenses § 21
(2004) (“[W]hen a property owner subdivides land and sells lots with reference
to a plat, the purchasers of those lots are granted easements in the roadways
shown on the subdivision plan . . . and the easement granted to the purchasers
is appurtenant to the property . . . .”); Hickey v. Pathways Ass’n, Inc., 37
N.E.3d 1003, 1017-18 (Mass. 2015) (“[E]asements to ways shown on a plan
may be recognized based on references to that plan in a deed” because a “plan
referred to in a deed becomes a part of the contract so far as may be necessary
to aid in the identification of the lots and to determine the rights intended to be
conveyed.”).

¶21 Here, the deed conveying Lot 3 and Lot 4 from PPI to Roberts
described the property, in relevant part, as:

Two (2) tracts or parcels of land, together with any
improvements thereon . . . being shown as Lot #3 and #4 on a plan
for [PPI] . . . dated May 15, 1972 . . . more particularly bounded
and described as follows:
LOT #3: Beginning at an iron pin set in the ground on the
Easterly side of Park Lane, so-called, at the Northwest corner of Lot
#3 . . . .

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[¶22] The deed’s description of Lot 3 references and thereby incorporates
PPI’s 1972 subdivision plan, which shows Lot 3 abutting Park Lane. The 1972
plan also shows “Far Echoes Road,” which is labeled in the record as “Far Echo
Harbor Road” and “Far Echo Road.” When PPI conveyed Lot 3 to Roberts by
deed with reference to the 1972 subdivision plan, the plan “became an
essential part of [the] conveyance.” McCleary v. Lourie, 80 N.H. 389, 392
(1922). As a matter of law, Lot 3 was thus granted an implied easement to use
the roadways shown on the 1972 subdivision plan: Park Lane and Far Echo
Road. See Regan, 115 N.H. at 42-43; Douglass, 76 N.H. at 256.3

¶23 The plaintiff next argues that the trial court erred by concluding
that the lots shown on PPI’s 1972 subdivision plan, including Lot 3, were not
granted rights to use the defendant’s property arising from the existence of a
common scheme of development together with the lots shown on Leisuretime’s
1959 subdivision plan. The plaintiff relies upon Gage for the proposition that
“[w]henever it appears that the original owner has adopted a general scheme of
development, and has inserted in his deeds of lots restrictions intended by him
and agreed by the purchasers to be for their reciprocal benefit, an equitable
right is shown.” Nashua Hospital v. Gage, 85 N.H. 335, 339 (1932). The
equitable right discussed in Gage, however, was the right to enforce a
restriction on the use of land as an equitable servitude. Id. at 335-36, 338; see
also Gauthier v. Robinson, 122 N.H. 365, 368 (1982). “The rationale for
enforcing promises restricting the use of land as equitable servitudes is that he
who takes land with notice of a restriction upon it will not in equity and good
conscience be permitted to act in violation of the terms of these restrictions.”
Traficante v. Pope, 115 N.H. 356, 359 (1975) (quotation omitted).

¶24 Here, the subdivided lots shown on Leisuretime’s 1959 subdivision
plan were conveyed with express rights to use the Lot 200 beach area. The
plaintiff does not argue that these express rights for the use of the Lot 200
beach area constitute restrictions that were intended to inure to the benefit of
all of the Far Echo Harbor Club lots. See Gage, 85 N.H. at 339. Thus, the
plaintiff does not seek the enforcement of an equitable servitude. Rather, he
seeks to secure for Lot 3 an implied easement for use of the defendant’s
property — specifically, its roadways and the Lot 200 lakefront beach area.
While our cases recognize that a common scheme of development may give rise

3 In Gagnon v. Moreau, we stated that “where lots are sold by reference to a recorded plat or plan
showing existing or proposed streets which constitute boundaries of the lots, a conveyance
ordinarily operates to convey to the grantee the fee simple to land underlying adjoining streets and
rights of way to the center line thereof,” in addition to “easements to use such rights of way as well
as others which do not bound the lot conveyed.” Gagnon v. Moreau, 107 N.H. 507, 509 (1967).
Here, the plaintiff did not seek “the fee simple to land underlying” Park Lane in his petition.
Furthermore, the Roberts deed’s description of Lot 3 as bounded by “iron pin[s] set in the ground”
on the side of Park Lane, and the fact that PPI later conveyed the roadways, including Park Lane,
to the defendant, indicate that PPI did not intend to convey “to the grantee the fee simple to land
underlying adjoining streets.” Id.

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to enforceable equitable servitudes, see, e.g., Gauthier, 122 N.H. at 367;
Varney v. Fletcher, 106 N.H. 464, 465-67 (1965), they do not recognize the
creation of a right of use arising from the existence of a common scheme of
development. But cf. Burke v. Pierro, 159 N.H. 504, 508-10 (2009) (finding
insufficient evidence of common scheme of development where plaintiffs
asserted “entitlement to an equitable servitude implied from a common scheme
of development” for use of defendants’ property).

¶25 The plaintiff’s reliance upon Gage, and his argument that Lot 3 may
obtain a property interest in Lot 200 arising from a common scheme of
development, therefore, are misplaced. Even if the plaintiff were able to
establish that Lot 3 was intended to be part of a common scheme of
development together with the lots shown on the 1959 subdivision plan, the
existence of such a common scheme of development would not grant Lot 3 an
implied easement for the use of the defendant’s property. Given this
conclusion, we need not address the plaintiff’s argument that the trial court
construed the evidence in the defendant’s favor and overlooked other evidence
in the record that was material to whether Lot 3 and the Far Echo Harbor Club
lots were intended to be part of a common scheme of development.

B. Easement by Prescription

¶26 Finally, we address the plaintiff’s argument that the trial court
erred by granting summary judgment to the defendant on the plaintiff’s
prescriptive easement claim. A party claiming to have a prescriptive easement
must prove by a balance of probabilities twenty years’ adverse, continuous,
uninterrupted use of the land claimed in such a manner as to give notice to the
record owner that an adverse claim was being made to it. Stowell v. Andrews, 171 N.H. 289, 297 (2018). “The nature of the use must have been such as to
show that the owner knew or ought to have known that the right was being
exercised, not in reliance upon the owner’s toleration or permission, but
without regard to the owner’s consent.” Id. (quotation omitted). Use is adverse
when it is trespassory, meaning that it consists of a wrong which the fee holder
can prevent or for which he can obtain damages by means of legal action. Id.

¶27 To establish a prescriptive easement to the defendant’s property,
including the Lot 200 lakefront beach area, the plaintiff was required to prove
that his predecessors in title to Lot 3 used the property now owned by the
defendant for a period of twenty or more years; that such use was adverse,
continuous, and uninterrupted; and that the defendant or its predecessors had
notice thereof. See id. The plaintiff alleged in his petition that the prior owners
of Lot 3 used the defendant’s roadways and “enjoyed access to Community
Area #200 and other common areas” for a period of twenty-eight years between
November 1973 and August 2002. The trial court determined that the plaintiff
had failed to identify any person who had adversely used Far Echo Harbor Club
property and owned property rights to the subdivided Lot 300.

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[¶28] The plaintiff submits that this conclusion was error and that the
trial court construed the evidence in the defendant’s favor. He maintains that
prior owners of Lot 3, who did not own other property in Far Echo Harbor Club,
used the defendant’s property — specifically, the Lot 200 beach area — from
1981 to 2018. Regarding the time period from 2002 until 2018: in August
2002, the defendant granted Petersen permissive use of the beach area “as a
guest under [his] parents’ membership.” Although the plaintiff asserts that
Petersen therefore did not have permission to use the defendant’s roadways,
there is no evidence in the record regarding Petersen’s use of the defendant’s
roadways to support the plaintiff’s claim. Because Petersen’s permissive use
presumably continued until he conveyed Lot 3 to the plaintiff in 2018, our
inquiry as to adverse use of the defendant’s property is limited to the period
before August 2002.

¶29 As the defendant contends, the plaintiff lacks first-hand knowledge
of any adverse use that might have occurred before 1984, when he first
purchased another property that was part of Far Echo Harbor Club. The
plaintiff nonetheless claims that there is evidence in the record that he
“observed the prior owners of Lot 3 visiting Lot 3 and using Park Lane and Lot
200 between the time that he became a member of [Far Echo Harbor Club] in
1984 until 2002” and that, during those years, “no owner of Lot 3 owned
another lot in FEHC or was given permission by [Far Echo Harbor Club] to use
Park Lane and Lot 200.” We note that the plaintiff’s argument — that there is
evidence that the prior owners of Lot 3 adversely used the Lot 200 lakefront
beach area from 1984 to 2002 — falls short of establishing twenty years of
adverse use of the defendant’s property. See id.

¶30 At his deposition, the plaintiff, referring to Lot 3, recalled that he
“would see cars parked over there in the summertime.” He did not, however,
remember seeing any of the people who parked their cars at Lot 3 use the Lot
200 beach area, although he “assumed they were . . . using the beach for the
day.” He also stated that he did not know whether the people he had observed
parking at Lot 3 “had other property within the Far Echo Harbor Club
community” that would have separately granted them beach access rights.
Furthermore, he could not identify any individuals in particular who previously
owned Lot 3 and adversely used the Lot 200 lakefront beach area.

¶31 The plaintiff’s testimony is insufficient to create a genuine issue of
material fact as to a prescriptive easement. See Granite State Mgmt. & Res.,
165 N.H. at 290 (explaining that party opposing summary judgment must do
so by “set[ting] forth evidentiary, and not ultimate, facts” and that “mere
general averments [are] insufficient”). That the plaintiff observed cars parked
at Lot 3 during the summer, and his assumption that the cars he saw parked
at Lot 3 belonged to prior owners of Lot 3 who were also using the beach area
without permission, without more, do not demonstrate twenty years of adverse,
continuous, uninterrupted use of the defendant’s property. See Stowell, 171

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N.H. at 297. Therefore, we conclude that the trial court properly granted
summary judgment to the defendant on the plaintiff’s prescriptive easement
claim.

III. Conclusion

¶32 To summarize, we conclude that the trial court erred by granting
summary judgment to the defendant on the plaintiff’s claim that Lot 3 has
implied easement rights as a matter of law to use the roadways shown on the
1972 subdivision plan: Park Lane and Far Echo Road. In addition, we
conclude that Lot 3 lacks either an implied or a prescriptive easement for use
of the defendant’s other roadways and the Lot 200 beach area, and that the
trial court properly granted summary judgment to the defendant on those
claims. We therefore reverse the trial court’s grant of summary judgment only
as to Lot 3’s right to use Park Lane and Far Echo Road and remand for further
proceedings consistent with this opinion.

Affirmed in part; reversed in part;
and remanded.

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

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Exhibit A

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Exhibit B