Cited by

The character of 3 the use is a question of fact and the burden of proof remains on the claimant.

“Ordinarily, a tax sale does not divest easements charged on the property sold.” Gowen v. Swain, 90 N.H. 383, 387 (1939) (quotation omitted); see Marshall v. Burke, 162 N.H. 560, 564 (2011) (holding that a tax sale does not extinguish prescriptive easements that have ripened into vested property rights prior to recording of the tax deed); see also Buchholz v. Waterville Estates Assoc., 156 N.H. 172, 175 (2007) (concluding th

The court also acknowledged that in Gowen v. Swain, 90 N.H. 383 (1939), we held that a tax sale did not divest an easement over property that had existed for at least thirty-five years prior to the tax sale.

Although we have not ruled on the survival of covenants in New Hampshire, we have held that easements survive a sale for taxes.

In other words, absent an agreement between the lessor and lessee to the contrary, the lessor as owner of the fee interest in the property pays taxes on the full value of the land as if the leasehold interest did not exist.

On the other hand, in Gowen v. Swain, 90 N.H. 383, 386, 10 A.2d 249, 251 (1939), we stated that the burden of proof on the issue of permission shifted from the party claiming an easement to the party denying it once a prima facie showing of prescription had been made.

The plaintiffs thus had the burden of proving by a “balance of the probabilities” that the public used Doiron and Cole Roads for twenty years under a claim of right without the owner’s permission.

the land [claimed] in such a manner as to give notice to the record owner that an adverse claim [is] being made to it.” Page v. Downs, 115 N.H. 373, 374, 341 A.2d 767, 768 (1975); Arnold v. Williams, 121 N.H. 333, 334, 430 A.2d 155, 156 (1981); Williams v. Babcock, 116 N.H. 819, 823, 368 A.2d 1168, 1170 (1976); Ucietowski v. Novak, 102 N.H. 140, 144, 152 A.2d 614, 618 (1959); Gowen v. Swain, 90 N.H. 383, 385-86, 10 A.2d 249, 251 (1939).

Consequently, “[w]hen a piece of property is so encumbered with easements that no use can be made of it, the fee owner pays no tax.” Gowen v. Swain, 90 N.H. 383, 388, 10 A.2d 249, 252 (1939).

The defendant readily admits that the fair market value of real property is diminished to the extent that such property is encumbered with easements.

Page v. Downs, 115 N.H. 373, 374, 341 A.2d 767, 768 (1975); Gowen v. Swain, 90 N.H. 383, 385-86, 10 A.2d 249, 251 (1939).

Ucietowski v. Novak, 102 N.H. 140, 145, 152 A.2d 614, 618 (1959); Gowen v. Swain, 90 N.H. 383, 386, 10 A.2d 249, 251 (1939).

Leaseholds for a term of years are considered personalty and not taxable to the lessee.

Gowen v. Swain, 90 N.H. 383, 10 A.2d 249 (1939); Hatch v. Hillsgrove, 83 N.H. 91, 138 A. 428 (1927); Allen v. Smith, 375 S.W.2d 874 (Mo.

The effect of restrictions on one’s property has also been accepted as a factor to be considered in arriving at value for property tax assessment.

Gowen v. Swain, 90 N.H. 383, 386, 10 A.2d 249, 251 (1939); Dame v. Fernald, 86 N.H. 468, 171 A. 369 (1934).