Ryan M. Borden
Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth,
NH with a focus on bankruptcy representation of
trustees, creditors and debtors, corporate law and commercial litigation.

No. 2018- 0327
January 24, 2020
Affirmed in part, reversed in part, vacated jury award, and remanded

  • Did the trial court err in (1) determining as matter of law when the City’s trespass began and (2) excluding all evidence of future lost profits after 2016
  • Did the trial court err in (1) permitting Boyle’s lost profits claim to go to jury and refusing to set aside jury award and (2) determining that the City did not have permanent easement rights

In 1967, the State of New Hampshire’s Board of Education owned the property at issue in this case. With the BOE’s assent, the City constructed a sewer line over the property. The property was sold and was eventually purchased by Boyle in 2003. In 2004, Boyle discovered the sewer line when he attempted to build a car dealership on the property. After the discovery, Boyle granted the City permission to keep the sewer line in place as the parties attempted to resolve the issue. Boyle sent a letter in 2008 demanding the City remove the sewer line.

Boyle sued the City in 2010 alleging trespass resulting from the sewer line’s presence and nuisance resulting from improper maintenance allowing water to pool on the property. Both parties moved for summary judgment in 2013. The trial court ruled that

  • the City did not have an easement in the sewer line by estoppel, ratification or prescription, (2) the City only had a revocable license to install and maintain the sewer line, (3) Boyle had unequivocally revoked the license, (4) the sewer line trespassed on Boyle’s land, (5) the City must remove the sewer line or obtain easements rights by em- inent domain within a reasonable time, (6) the equities did not compel compensation to the City for removing the sewer line, (7) the City must pay rent to Boyle from the date Boyle revoked the license until the date the sewer line was removed or easement rights acquired and (8) damages were subject to jury

A jury awarded Boyle $3,570,00 for

lost profits due to the trespass and nuisance. After denying all post-trial motions, both parties appealed.

The City’s first argument was that the trial court erred in ruling it had ano permanent rights in the sewer line. It argued that the twenty-year clock started even while the state and its immediate transferee owned the property, and that while prescriptive rights could not be obtained against the state or its immediate transferee, they could accrue and mature against any other owner as soon as the twenty-year period expired. Even assuming that was correct, the Court held that permissive use does not become adverse until there is an express revocation of per- mission. Boyle did not expressly revoke permission until 2008, and therefore the twenty-year period had not accrued.

The City next argued that it had an irrevocable license upon spending funds to install the sewer line. This argument would require the Court to overrule Houston v. Laffee, a case decided in 1866, which held that a parol license could never become an easement because it violated the statute of frauds. The Court held that the City  did  not adequately develop its argument and affirmed on this issue.

Boyle argued that the trial court erred in determining his 2008 letter to the City was not an express revocation of the license, depriving him of an additional six years of damages. The trial court found that a sec- ond letter in 2013, where Boyle expressly stated the license was revoked, was the date the City’s trespass and nuisance started. The City argued because the 2008 letter did not contain the word “revoke,” it was not an express revocation. The Court agreed with Boyle and found revocation occurred in 2008.

The City argued the trial court erred in permitting evidence of lost profits to go to a jury and failing to set aside the jury’s verdict.

The City argued Boyle’s lost profits were too speculative because the calculation assumed Boyle would succeed in opening a second car dealership on the property. The record included testimony from Boyle that he had not obtained planning board approval for a dealership, had not obtained permits or variances from the planning or zoning boards, did not have the appropriate terrain and wet- land permits from the state and did not yet have a dealer franchise in place. Boyle’s ex- pert had not testified as to the probability of Boyle obtaining the necessary permits, variances and dealer franchise, rather only that it was reasonable that he would.

The Court agreed that lost profit dam- ages were too speculative, the expert was required to testify as to probability and not reasonableness and that the sewer line was not the but-for causation of Boyle’s lost profits. The Court vacated the jury verdict and remanded, declining to rule on whether the trial court should have set aside the jury verdict.

Boyle’s final argument was that the trial court erred in not permitting damages after the City took the property by eminent domain. Whereas the Court had ruled in a companion case issued the same day that the City’s taking was illegal, it remanded that is- sue to the trial court to determine in the first instance.

John Kuzinevich, Law Offices of John Kuzinevich, Duxbury, MA and Joshua Wyatt and David P. Eby, Devine, Millimet & Branch, Manchester, for the plaintiff. Charles P. Bauer and Robert J. Dietel, Gallagher, Callahan & Gartrell, Concord and Bruce W. Felmly and Benjamin B. Folsom, McLane Middleton, Manchester, for the defendant. Gordon J. MacDonald, attorney general (Christopher G. Aslin, senior assistant attorney general), for the State