Civil Law – Property

Merrimack, No. 2017-0151, September 14, 2018

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Affirmed in part; vacated in part; and remanded.

  • Whether a deeded easement could be extinguished based on its original purpose.

The original owners of a portion of Great Island located in Newbury, subdivided a portion of the island and subsequently conveyed lots along the shore to various individuals with deeds that provided for an easement for the grantee, and assigns, across the other lots to reach the wharf or wharves that may be established and reserving an easement for the grantors, and assigns, across the conveyed lot. Great Island lies partially in Newbury and partially in Sunapee. The footpaths over Great Island are used to travel on the island because there are no public roads. One such footpath is the Circle Trail, which traverses the perimeter of the island, and it crosses Plaintiff’s property, which lies partially in Newbury and partially in Sunapee.

In the trial court, there were cross-motions for summary judgment and the trial court ruled that the Newbury defendants had deeded easements for the portion of the Circle Trail located in Newbury. After a bench trial, the trial court ruled that (1) the Newbury defendants who testified had prescriptive easements for the portion of the Circle Trail on Plaintiff’s property located in Sunapee, (2) only the sole Sunapee defendant who testified had a prescriptive easement for the Circle Trail on Plaintiff’s property both in Newbury and Sunapee, and (3) Plaintiff had the unilateral right to relocate the Newbury defendants’ deeded easements from the front of his property to the back.

In first considering the trial court’s decision on the summary judgment motions, the court agreed with the trial court that the language in the deeded easement did not create a limitation that the easement could only be used to reach wharves. Plaintiff argued that the “impossibility of purpose” doctrine extinguished the easements because the use for which the easement was granted was no longer possible. The court rejected this argument noting its agreement with the trial court that the easements did not require users to traverse the easement only to board a steamboat and did not limit what could be done by the user once he or she reached the wharves. The court found that the easements were intended to convey rights for the footpaths to be used for multiple purposes and merely described a location, rather than an intent to limit use for the sole purpose of reaching wharves. Thus, the easements were not extinguished and remain to allow for transit to the sites of the former steamboat wharves. Summary judgment on this point was affirmed.

Defendants also appealed on the grounds that the trial court erred in determining that only those who testified at trial had a prescriptive easement and that Plaintiff could relocate the deeded easements unilaterally.

The court vacated the trial court’s ruling as to those with prescriptive easements and remanded for a determination of whether the easements were appurtenant or in gross. The court explained that an appurtenant easement creates two distinct estates, that which is dominant, i.e. land that benefits from the easement, and that which is servient, i.e. land that is burdened by the easement. Thus, an appurtenant prescriptive easement can be used only in conjunction with the ownership or occupancy of a particular parcel. Conversely, an easement in gross is owned by an individual, but is not connected with ownership of any other property interest. The court further noted that if the easements are appurtenant, then it would not be necessary for every owner to testify to establish the factors for a prescriptive easement.

With regard to the unilateral relocation of the deeded easements, the court rejected Plaintiff’s attempt to have it adopt the Restatement that would allow the servient estate to make reasonable changes in the location of an easement, at its own expense, so long as they did not lessen the utility of the easement, increase burdens on the dominant estate, or frustrate the purpose for which the easement was created. Restatement (Third) of Property: Servitudes, §4.8(3), at 559. The court found this to be in direct contradiction with New Hampshire’s default rule precluding unilateral relocation of an easement and inconsistent with New Hampshire’s general principle of the importance of individual private property rights. As the court could not determine  whether the trial court considered the Restatement in its decision, the court vacated the decision allowing the unilateral relocation of the deeded easements and remanded for further proceedings.


Kathleen M. Mahan, Cook, Little, Rosenblatt & Manson, Manchester, and Nicholas M. O’Donnell, Sullivan & Worcester, Boston, for plaintiff; Barry C. Schuster, Schuster, Buttrey & Wing, Lebanon, for defendants.