Town of Dunbarton v. Guiney

173 N.H. 1

236 A.3d 860

TOWN OF DUNBARTON

v.Michael GUINEY & A.

No. 2018-0591

Supreme Court of New Hampshire.

Argued: September 25, 2019

Opinion Issued: February 5, 2020

Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the memorandum of law and orally), for the Town.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on the brief and orally), for the appellees

Panciocco Law, LLC, of Bedford (Patricia M. Panciocco on the brief and orally), for appellant.

HANTZ MARCONI, J.

The appellant, Michael Guiney, appeals a declaratory judgment of the Superior Court (Kissinger, J.) ruling that the road between Guiney's house and barn has become a public highway by prescription. Guiney also appeals the trial court's decision on his cross-claim against the appellees, David Nault, Joshua Nault, and Leigh Nault (the Naults), which upheld boundary lines and a 50-foot wide right-of-way (50-foot ROW) that appear in a 1988 boundary line agreement under the doctrines of boundary by acquiescence and estoppel by recitals in instruments. We reverse in part, vacate in part, and affirm in part.

The trial court found, or the record supports, the following facts. The relevant properties and Kelsea Road are located in Dunbarton. Guiney acquired his property (Lot 5) by deed dated March 30, 1999. David Nault purchased three lots (Lots 7, 8, and 9) to the west and north of Lot 5 between 1990 and 1998, and has a home on Lot 7. Nault later transferred Lot 8 to his son and daughter-in-law, and has retained Lot 9 with the intent of giving it to another one of his children. None of the Naults' Lots have frontage on a Class V road, including Kelsea Road, and the Naults access Kelsea Road via a right-of-way across Lot 5.

Kelsea Road is a Class V gravel road that exits west off of Montelona Road and continues in a southwesterly direction. As Kelsea Road reaches Lot 5, a traveled way spurs off to the west and continues between Guiney's house and barn. This westerly spur between Guiney's house and barn is referred to by the parties and throughout this opinion as the "disputed area."

In 1873, the original owners of the entire tract of land containing the properties relevant to this appeal conveyed a parcel, including what is now Lot 7, to Alfred Colby and kept Lot 5 for themselves. In the deed to that transfer, the owners granted Colby "the right forever to cross [Lot 5] in any manner and at all times in the old cart road." The cart road runs between the house and barn on Lot 5 and is approximately 13'-15' wide.

On June 24, 1988, Jean Gildersleeve (Gildersleeve), then the owner of Lot 5, entered into a "common boundary line and right-of-way-agreement" (BLA) with Abraham Braverman, who was the owner of Lot 7. This agreement was recorded in the Merrimack County Registry of Deeds on August 24, 1988, and re-recorded on January 27, 1989. The BLA provides, in part, that "a right-of-way exists over [Lot 5] for the benefit of [Lot 7]" and that the agreement "shall be a covenant running with the land, and shall be binding on all future owners of [Lot 5] and [Lot 7]." To help facilitate the agreement, a local land surveyor prepared a plan, which is referenced in the BLA and also recorded in the Merrimack County Registry of Deeds. The agreed-upon boundary lines and a 50-foot ROW shown at the end of the traveled way between Guiney's house and barn are detailed on the plan. This agreement was reaffirmed by a "confirmatory common boundary line and right-of-way agreement" (Confirmatory Agreement) entered into on June 26, 1998, by Gildersleeve and the executrix of Mrs. Braverman's estate. The Confirmatory Agreement is recorded in the Merrimack County Registry of Deeds.

When Guiney purchased Lot 5 from the Jean O. Gildersleeve Inter Vivos Trust in 1999, the deed described the boundaries of the property using the language that appears in the BLA, including the 50-foot ROW in favor of Lot 7. Guiney testified that he received a copy of the BLA prior to purchasing Lot 5, and he did not question the agreement; rather, he was pleased that a survey of his property had been done. Shortly after moving in, Guiney had a discussion with Nault in which he acknowledged the existence of the right-of-way and Nault's right to use it. In 2015, Guiney recorded a plan in the Merrimack County Registry of Deeds which illustrates the boundary lines of his property as they are described in the BLA. Nault was also aware of the BLA prior to purchasing Lot 7 and understood it to be binding upon him and all future owners of the affected pieces of property.

Guiney moved into the house on Lot 5 almost immediately after purchasing it in 1999. Although he observed very little traffic near his house, Guiney observed plow trucks for the Town of Dunbarton (Town) plowing the disputed area during the winter and using space next to his barn to turn around and go back down Kelsea Road. Guiney also saw Town trucks grade Kelsea Road once or twice a year. Although the Town trucks never graded the disputed area between Guiney's house and barn, they used the space next to the barn to turn their trucks around when grading Kelsea Road.

At trial, the Naults introduced maps depicting Kelsea Road and had a number of witnesses testify to the Town's history of maintaining the road, but only two of them offered testimony speaking to that history prior to 1968.¹ One of those witnesses began working for the Town during adolescence in the 1950s or 1960s, and by the 1970s the Town assigned him his own plow route, which included Kelsea Road. He testified to plowing Kelsea Road up to the Guiney property travel-way and turning around next to the barn.

The second witness began working for the Town around 1958 while his father was the Town road agent. That employee testified to childhood memories of riding with his father while he plowed Kelsea Road up to the disputed area, plowed the disputed area, and turned around next to the barn. When the witness was hired by the Town, he continued to plow this route in the same manner as his father; and he did not make any changes to that practice when he became the Town road agent himself. Further, the witness testified to grading, sanding, and removing brush from Kelsea Road during his tenure with the Town, and that he understood the disputed area to be part of Kelsea Road. Although there was testimony that residents of Lot 5 had granted the Town permission to turn their trucks around next to the barn, the trial court found that the Town was never given, nor asked for, permission to plow or otherwise maintain the disputed area.

In 2006, Guiney filed a petition against Nault to quiet title to a "driveway" Nault had constructed over Lot 5, and outside of the disputed area, to access Lots 8 and 9. The trial court in that case explained that the "driveway" Nault had constructed was distinct from the right-of-way running east to west over Lot 5 to Lot 7, which was referred to by the court as the "cart road." The court concluded that, in light of the existing right-of-way, Nault did not have an easement by implication, necessity, or prescription to utilize the driveway he had constructed across Guiney's property. In the present case, the trial court took the outcome of that 2006 litigation into account when ruling on the Naults' motion for summary judgment and ruled that Guiney was judicially estopped from arguing that there was no right-of-way across Lot 5 that permits travel to and from Lot 7 and Kelsea Road.

In 2011, Guiney noticed the Town slowly widening the disputed area and, in an effort to protect his property from encroachment, he put up a post blocking the Town's access to the turnaround area next to his barn. The Town asked Guiney to take the post down as a gesture of good faith while an agreement was worked out between Guiney, the Town, and Nault, which he did. That exchange notwithstanding, the Town continued to widen the disputed area and told Guiney that the Town believed it had rights in the disputed area. In response, Guiney put new posts in the ground to block the turnaround area next to his barn.

In 2015, Guiney hired a surveyor to survey his property. The surveyor concluded that the boundary lines between Lot 5 and Lot 7 as they appear in the 1988 BLA are not consistent with the boundaries described in the 1873 deed conveying Lot 7 out of Lot 5. In his view, the boundaries as set out in the 1873 deed were "clear as day," and the true intent of the parties entering the 1988 BLA must have been to establish a new common boundary between the two lots. The Naults also hired a surveyor to survey the property and determine the boundary lines between Lot 5 and Lot 7. Contrary to the position maintained by Guiney's surveyor, the Naults' surveyor concluded that the boundaries described in the 1988 BLA accurately reflect the common boundary established by the 1873 deed that created Lot 7.

After more than a decade of dispute, the Town filed an action against Guiney and the Naults, seeking a declaratory judgment as to whether the disputed area has become a public highway by prescription. In the same action, Guiney asserted a cross-claim seeking to have the BLA invalidated and quiet title against the Naults. Following a three-day bench trial, the trial court ruled that, based on the testimony of Town employees and maps presented at trial, the disputed area is part of Kelsea Road by prescription. Further, the court assumed, without deciding, that the BLA was invalid. Nonetheless, the court ruled that the boundary lines between Lot 5 and Lot 7 had been established by acquiescence as they appear in the 1988 BLA, and that the 50-foot ROW laid out in the BLA was established and enforceable under the doctrine of estoppel by recitals in instruments. The appellant filed a motion for reconsideration, which was denied, and this appeal followed.

We first address whether the disputed area between Guiney's house and barn has become part of Kelsea Road, a public highway, by...