Vill. Green Condo. Ass'n v. Hodges

167 N.H. 497

114 A.3d 323

VILLAGE GREEN CONDOMINIUM ASSOCIATION

v.David A. HODGES & a.

No. 2014–141

Supreme Court of New Hampshire.

Argued: January 15, 2015

Opinion Issued: March 20, 2015

Janson & Koppenheffer, LLP, of Lebanon (William K. Koppenheffer on the brief and orally), for the petitioner.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the respondents.

CONBOY, J.

In this declaratory judgment proceeding, the respondents, David A. and Joanne Hodges, appeal an order of the Superior Court (Vaughan, J.) ruling that they must contribute to the maintenance and repair of an easement they hold over property owned by the petitioner, Village Green Condominium Association (Village Green). We affirm.

The trial court found, or the record supports, the following facts. Village Green is a residential condominium association that owns real property adjacent to Pleasant Street in Lebanon. The Hodgeses own and, through an affiliated corporate entity, operate three apartment complexes on property abutting Village Green's property. They hold an easement over Village Green's property that provides access from the apartment complexes to Pleasant Street (easement).

The properties were originally one tract of land owned by the French family. In 1929, the French family divided the property into two tracts with various members of the French family owning each tract. In 1970, a portion of one tract was conveyed to R. Bill Purcell. In 1975, Purcell conveyed most of that property to S.M. Development Corporation. Later that year, S.M. Development Corporation conveyed the property to Village Green.

In 1974, a portion of the second tract was conveyed to the Hodges Development Corporation. Later that year, Purcell conveyed the easement to the Hodges Development Corporation by a quitclaim deed (easement deed). The easement is over the portion of the parcel Purcell later conveyed to S.M. Development Corporation. The pertinent language in the easement deed described the easement as follows:

A certain right of way 20 feet in width, for vehicular and pedestrian travel, leading from Pleasant Street in the Village of West Lebanon, City of Lebanon, County of Grafton and State of New Hampshire, to the premises described in the deed ... dated October 15, 1929, recorded in the Grafton County Registry of Deeds, Book 621, Page 36, and being the same right of way as set forth in said deed.... The said Hodges Development Corporation shall have the right to improve said road and maintain the same, but the said R. Bill Purcell reserves the right for himself, his heirs and assigns, to use said right of way in common with Hodges Development Corporation, its successors and assigns.

(Emphasis added.) In 1975, the Hodges Development Corporation divided the property and conveyed to the Hodgeses two parcels, which included the easement. The relevant users of the easement are the tenants of Village Green and the tenants of the apartment complexes owned by the Hodgeses.

On October 27, 2011, Village Green brought this action, seeking a declaration that the Hodgeses are required "to pay their pro rata share of the costs of maintaining and repairing the easement." It contended that "[t]he easement is in need of approximately $52,000 worth of repaving" and that, as the easement holders, the Hodgeses are required to contribute their pro rata share of the costs of such maintenance and repair.

The Hodgeses objected, arguing that the plain language of the easement deed "addressed the issue of maintenance and improvement of the right of way" and "gave [them] the affirmative right, but not the corresponding obligation, to improve and maintain the right of way." They further maintained that Village Green's claim is barred by waiver and laches.

Finally, they argued that, because Village Green "never made any demand upon [them] to contribute to the cost of the maintenance and improvement of the right of way," and because they "did nothing to maintain, repair or improve the easement," the course of dealing of the parties was such that they are under no obligation to contribute to the easement's maintenance and repair.

The trial court bifurcated the proceeding, first hearing evidence on whether the Hodgeses are required to contribute to the repair and maintenance of the easement. If the trial court determined that they are, then a second hearing would be scheduled to determine the nature and extent of the contribution. Following the first part of the bifurcated trial, the court ruled that the Hodgeses are required to contribute to the maintenance and repair costs of the easement. The court found that the easement deed grants the Hodgeses the right to maintain the easement, but "is silent with respect to any affirmative obligations." The court concluded that, because both the Hodgeses and Village Green use the easement, they must share in the cost of its maintenance and repair. The court further found that Village Green's claim is not barred by waiver, laches, or the parties' course of dealing.

Following the trial court's ruling, the parties entered into a settlement agreement regarding the nature and extent of the Hodgeses' contribution obligation. In the agreement, the parties acknowledged that the Hodgeses intended to appeal the trial court's ruling as to their obligation to contribute to easement maintenance and repair, and established an agreed-upon procedure for determining the past and future maintenance obligations should we affirm the trial court's ruling. This appeal followed.

I. Obligation to Maintain and Repair the Easement

The Hodgeses first argue that they should not be liable for the costs of maintenance and repair because, although the easement deed grants them the right to maintain the easement, no language in the deed obligates them to do so. "The interpretation of a deeded right of way is ultimately a question of law for this court to decide...." Gill v. Gerrato, 154 N.H. 36, 39, 904 A.2d 576 (2006) (quotation omitted). In interpreting a deed, we give it the meaning intended by the parties at the time they wrote it, taking into account the surrounding circumstances at that time. Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 765, 519 A.2d 297 (1986). Clear and unambiguous terms of a deed control how we construe the parties' intent, but the law may imply supplemental rights. Dumont v. Town of Wolfeboro, 137 N.H. 1, 5, 622 A.2d 1238 (1993). The overriding principle defining the parties' proper exercise of their rights is the rule of reason, which gives "detailed definition to rights created by general words either actually used in the deed or, whose existence is implied by law." Id. at 5–6, 622 A.2d 1238 (quotations omitted).

In this case, the easement deed provides that "Hodges Development Corporation shall have the right to improve said road and maintain the same." This language clearly provides, and the parties do not dispute, that the Hodgeses have the right to improve and maintain the easement. The dispute centers upon the significance of the absence of language in the deed regarding the obligation to maintain and repair the easement.

The Hodgeses argue that because the easement deed addresses their right to maintain the easement, but not the obligation to do so, the parties impliedly excluded any obligation requirement and, thus, did not intend for the Hodgeses, as the dominant tenants of the easement, to be obligated to maintain it. Village Green, the owner of the servient estate, counters that because there is no language in the easement deed concerning the Hodgeses' obligation to maintain and repair the easement, we should apply the common law rule, as reflected in the Restatement (Third) of Property: Servitudes.

We begin with an examination of the common law of easements.

Generally, the dominant tenant of an easement has a right and the duty to maintain an easement so that it can be used for the purpose for which it was granted, so that no unnecessary damage will result to the servient estate from its use, unless otherwise required by the easement or other agreement ... to the contrary, or unless the easement is jointly utilized, for the same purposes, by the property owner with the benefited parties. It has been said that the extent of the dominant tenement's duty to repair the property subject to the easement is determined by the conveyance.

In the event the conveyance creating an easement is silent or indefinite as to the duty to repair, the inference to be drawn is that such duty as exists is upon the owner of the easement.

28A C.J.S. Easements § 226, at 444 (2008) (footnotes omitted); see also Freeman v. Sorchych, 226 Ariz. 242, 245 P.3d 927, 933 (Ariz.Ct.App.2011) ; Quinlan v. Stouffe, 355 Ill.App.3d 830, 291 Ill.Dec. 305, 823 N.E.2d 597, 606 (Ill.App.Ct.2005) ; J.W. Bruce & J.W. Ely, Jr., The Law of Easements and Licenses in Land § 8:37, at 8–105 to 8–106 (2011); Restatement of Property § 485 comment b at 3024 (1944); cf. Maddock v. Chase, 94 N.H. 241, 245, 51 A.2d 145 (1947) (explaining that "[t]he reason why these owners of dominant estates cannot recover damages, reimbursement, or contribution, for expenses incurred by the dominant owners for repairs which they claim the servient owner should have incurred is because there is no duty or obligation on the part of the latter to make the repairs").

More recently, the Restatement (Third) of Property: Servitudes § 4.13, at 631–32 (2000), further developed this rule:

Unless the terms of a servitude ... provide otherwise, duties to repair and maintain the servient estate and the improvements used in the enjoyment of a servitude are as follows:

(1) The beneficiary of an easement ... has a duty to the holder of the servient estate to repair and maintain the portions of the servient estate and the improvements used in the enjoyment of the servitude that are under the beneficiary's control, to the extent necessary to

(a) prevent

...