2004-036, JOSEPH W. SANDFORD, JR. v. TOWN OF WOLFEBORO

of Wolfeboro, 143 N.H. 481 (1999). We affirm. This case returns to us after remand to the trial court. See Sandford v. Town his land; the defendant, the Town of Wolfeboro (town), owns the easement. of the Superior Court (Fauver, J.) determining the scope of an easement to flow DALIANIS, J. The plaintiff, Joseph W. Sandford, J r., appeals a decision

the brief and orally), for the intervenor, Lake Wentworth Association. Baldwin, Callen & Hogan, P.L.L.C., of Concord (Carolyn W. Baldwin on

orally), for the defendant. Barto and Puffer, P.A., of Concord (Mark H. Puffer on the brief and

brief and orally), for the plaintiff. Douglas, Leonard & Garvey, P.C., of Concord (C. Kevin Leonard on the

No. 2004 - 036 Carroll

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

owne r and the weather, and at some point each year, was determined by the needs and desires of the dam prescriptive period, indicates that the prescriptive use fact no maximum height was ever set during the The great fluctuation in water heights, along with the owners dur ing the prescriptive period put the dam. is as broad as the general use to which the dam Accordingly, the scope of the prescriptive easement

desires, as well as the weather . . . . period] was governed by the dam owner’s needs and Therefore, the water level [during the prescriptive

determine the scope of the easement and found: land. The court examined the historical and customary use of the dam to right - of - way and those acquired in an easement to flow water onto another’s rights, due to the d rastic difference between the nature of rights acquired in a the scope of a right - of - way could not be used to determine prescriptive flow On remand, the trial court concluded that the standards for determining

town through the pre - 1958 use of its predecessors in title. Id. easement, we remanded the issue of the scope of the ease ment acquired by the character and extent of the pre - 1958 use that established the scope of the court failed to determine, and the undisputed facts failed to illuminate, the basis, so long as it was done i n a reasonable manner. Id. Because the trial the top of the dam, at any time in the year, or perhaps even on a year - round concluding that the scope of the town’s easement was a right to flow water to or rather spo radic throughout. Id. at 490. We held that the trial court erred in whether that “portion” was a defined and specific time period during each year, “portion” of each year. See id. We held that the record did not establish of the dam and, thus, flow the plaintiff’s land to 534.7 feet M.S.L. during a predecessors in title, acquired a prescriptive easement to flow water to the top In Sandford, we found that the town, through the conduct of its

not, however, limit the maximum water level of the lake. Id. at 48 p. 3 3. the lake, which varied accord ing to the time of year. The 1958 agreement did 1958 agreement required the town to maintain certain minimum water levels in 1958, subject to an agreement dated April 1 p. 2 2, 1958 (the 1958 agreement). The year. The town acquired the dam by deed from the Smith River Corporation in of the lake was maintained at the top of the dam during some portion of each (M.S.L.) since the 1920s. It is undisputed that since that time, the water level #258.01, which has had a height of approximately 534.7 feet Mean Sea Level Wentworth in Wolfeboro. The water level of the lake is c ontrolled by dam only briefly restated here. The plaintiff owns property on the shore of Lake The background of this case was initially set forth in Sandford and is 3

flow land. (Citations omitted.) This argument mischaracterizes the law of easements to

year during the applicable 20 year period. property that was continuously utilized at that time of encompasses only the minimum area of the servient 20 years. . . . The pre scriptive easement thus created beyond a minimum point at the same time of year for water) prove that he flowed the servient land up to or the party seeking prescription must (in the case of

The plaintiff asserts that under New Hampshire law,

level in the lake was usually high. the correspondence submitted by the plaintiff established only that the water determining the ‘character and nature’ of the use.” The trial court found that found that the graph was not instructive because “averages are not helpful in Sherman, an engineer, was averaged, and plotted on a graph. The trial cour t years of data of the flow of the lake prior to 19 p. 3 36. The data compiled by incorporated into a court order in 1936. The report was based upon thirteen Superior Court to determine appropriate flowage r ates through the dam; it was The Sherman Report is a schedule commissioned by the Carroll County

prescriptive easement. He argues that the Sherman Report is the best evidence of the scope of the land, arguing that those sources determi ne the scope of the town’s easement. 19 p. 3 35, and letters written during the period to establish the pre - 1958 use of his upon a report by Charles W. Sherman (Sherman Report) dated October 29, town’s easement based upon intent rather than actual use. The plaintiff relies The plaintiff argues that the trial court erred by defining the scope of the

Savings Bank, 1 p. 3 36 N.H. 533, 536 (1992). the trial court based upon the evidence before it. Hawthorne Trust v. Maine rather, whether a reasonable pe rson could have reached the same decision as matter of law. Our standard is not whether we would rule differently, but them unless they are unsupported by the evidence or are erroneous as a In reviewing the findings and rulings of the trial court, we will uphold

(Quotation and citation omitted; emphasis add ed.)

with the historical and customary use of the dam. of the defendant’s easement is use that is consistent the water flowed to the top of the dam. . . . The scope p. 4 4

right. claim, it would be conclusive that they possessed the exercised that right for twenty years, agreeably to their whenever they chose, and had water to fill it, and right to keep the water in their dam at its f ull height, On the same principle, if the plaintiffs claimed the

right. pleasure or convenience of the party claiming the uninterrupted use of the right at all times, at the continuo usly exercised; but the right is acquired by an Rights of way, and some other easements, are not

twenty years, that would establish his right. exercised the right of drawing, as he had occasion, for drawing water at all times, at his pleasure, and had but if it appear ed that a party had claimed the right of ordinarily be any continuous use of such an easement; from a well. In the nature of things there cannot of their claim. There is an easement of drawing water would not prevent their acquiring a right to the extent being drawn by the plaintiffs for their own purposes their dam would raise it, when there was water, its substance it is alleged that it was kept up as high as The water may be liable to great fluctuations, and if in

easement as follows: land, we answered the defendant’s objection to the uncertain scope of that the plaintiffs sufficiently alleged a prescriptive easement to flow the defendant’s Winnipiseogee Lake Company v. Young, p. 4 40 N.H. 420 (1860). Having found that In W innipiseogee Lake Company v. Young, we faced similar issues.

land, however, the scope of the easement is much more difficult to define. In cases where the prescriptive right at issue is the right to flow water onto e.g., Cote, 119 N.H. at p. 4 493; Cataldo v. Grappone, 117 N.H. 1043, 1049 (1977). commercial use, have helped define prescriptive easements in pa st cases. See, foot or in a vehicle, and between crossing property for personal use or is at issue. For example, the obvious differences between crossing property on (M. Wolf ed., 2004). This determinati on is easier to make when a right - of - way permissible variation.” 4 R. Powell, Powell on Real Property § 34.13, at 34 - 149 after its creation is inevitable. The problem is to ascertain the limits of use by which a p rescriptive easement was created and the uses made under it “Because no use can ever be exactly duplicated, some variation between the nature of the use that created it. Cote v. Eldeen, 119 N.H. 491, 493 (1979). The scope of a prescriptive easement is defined by the character and p. 5 5

easement it gained by prescription. Since we held that the trial court was The plaintiff lastly argues that the town exceeded the scope of the

to determine the scope of the town’s easement. of the record indicates that the t rial court did not rely upon post - 19 p. 5 58 evidence evidence to determine the scope of the town’s easement. However, our review The plaintiff also argues that the trial court relied upon post - 1958

because it was not made in Sandford. standing precedent to support this findi ng, and we will not discard it simply and desires of the dam owner, subject to fluctuating weather. There is long determined that the scope of the town’s easement was determined by the needs court thorough ly examined the character and nature of the pre - 19 p. 5 58 use, and character and extent of the pre - 1958 use. Id. at 490. On remand, the trial Sandford was flawed because the trial court failed to examine or determine the Sandford, 143 N.H. at 490. The determination made by the trial court in i.e., that the scope of the easement was use “in a reasonab le manner.” because it is similar to the determination made by the trial court in Sandford, The plaintiff argues that the trial court’s determination was flawed

scope of the easement. variations. Therefore we hold that the trial court did not e rr in determining the customary use of the dam, within the obvious parameters of weather land to p. 5 534.7 feet M.S.L., the top of the dam, in keeping with the historical and could have found that the town est ablished its easement to flow the plaintiff’s Applying this law to the instant case, we hold that a reasonable person

Id. or prevent their holding all there was in a wet season until their dam was full.” be much lower som e years than others would not affect the defendants’ right, the level as high as possible when the weather allows. “That the water might water level during the prescriptive period do not affect the owner’s right to raise It has been further established that seasonal or yearly changes in the

added). height of their dam.” Bucklin v. Truell, p. 5 54 N.H. 122, 124 (1873) (emphasis year, as they please, with the right to control the same without limit except the this pond, from streams or springs or rains or any other source during the established by the use would seem to be, to use all the wat er that came into seasons, was established long ago in New Hampshire. “Here the right the easement desires, subject to the natural fluctuations of weather and the The right to maintain th e level of a body of water as high as the owner of

Id. at 43 p. 6 6 (emphasis added; citations omitted). 6

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

scope of this easement as long as dam #258.01 remains at 534.7 feet M.S.L. possible, we reject the plaintiff’s argument, as the town could not exceed the owner’s historical practice of keeping the water level as high as desired, when correct in dete rmining that the scope of the easement accords with the dam