Property Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2019-0197
May 22, 2020
Affirmed in part reversed in part remanded.

  • Whether an implied easement may be inferred based upon historical use of properties

This lawsuit originated in 2017, when the plaintiff filed a lawsuit requesting the court to order removal of the docks that the defendants had installed on the plaintiff’s property and to enjoin the defendants from interfering in any manner with the plaintiff’s use of his property. The plaintiff appealed an order of the Superior Court which ruled that defendants’ land benefits from an implied easement over the plaintiff’s land, along a fifteen-foot wide access road to the “beach area” of Sip Pond as depicted on a 1992 subdivision plan. The trial court further ruled that installation and use of a dock is a reasonable use of the easement.

The Supreme Court noted the relevant facts as follows: The property was once a part of a single parcel owned by Savannah and William Anderson along the shore of Sip Pond in Fitzwilliam. In 1947, the Andersons conveyed the parcel to their four children. In 1961, the siblings subdivided the property amongst themselves into four lots with water frontage. Only one of these lots had a beach area. Ten cottage or like structures were scattered among the four lots, all of which were accessed via a private road. The private road is still in use today.

In reaching its decision, the trial court considered historical use of the properties and conducted a view. The ruling of the trial court observed that plainly visible pathways run through the parcels and connect the various structures. This included that one subdivided lot was the only lot with a beach area and another lot was subdivided which included parcels without any frontage (including the defendants’ parcel). The trial court observed that some of the deeds to these transactions included granting or reserving rights of way. A plan depicting the previously mentioned access road as a right of way to Sip Pond was created in 1973 and the remaining Anderson heirs recorded another survey plan in 1992, which depicts the lots created as a result of the conveyances made by the original owner including, “a right of way 15 feet wide to the grantees along the right of way to Sip Pond.” The trial court concluded that the parties to the 1961 subdivision intended to create an easement to access the beach area and that given the rural location of the lots, easement was reasonably necessary for the defendants’ enjoyment of their lots. The trial court concluded the defendants’ land benefits from and the plaintiff’s land is burdened by an easement by implication. The trial court also concluded that installation and use of the dock is a reasonable use of the easement and because there was no evidence that the easement had been expressly rescinded, it was a vested right of the current owners.

The Supreme Court reviewed the matter de novo and noted that the court’s finding of an implied easement was supported by the law and evidence considered by the trial court. The Court reversed the ruling that the scope of the easement included the dock because there is no evidence that a dock had ever been installed in the beach area of the burdened parcel. The Court held that installation and use of a dock is not within the scope of the easement under the traditional approach or the modern approach.

The Court ruled that easement by implication is presumed to exist if during unity of titles, the owner imposes apparently permanent and obvious servitude on one settlement in favor of the other, which at the time of severance, its title is in use and reasonably necessary for the fair enjoyment of the tenement of which such use is beneficial.

Gary Kinyon, Bradley & Faulkner, Keene, for the plaintiff. Silas Little, Fernald, Taft, Falby and Little, Peterborough, for the defendants.