2005-669, BLAGBROUGH FAMILY REALTY TRUST v. A & T FOREST PRODUCTS, INC. & a

The plaintiff, Blagbrough Family Realty Trust (Blagbrough),

brief and orally), for defendant Town of Wilton. Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the

Products, Inc. E. Michael on the brief, and Mr. Michael orally), for defendant A & T Forest Wiggin & Nourie, P.A., of Manchester (Patricia M. Panciocco and Gregory

brief and orally), for the plaintiff. Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2005-669 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as drinking water since 1985.

p. 2 parcel, but the trial court found that the well has not been used as a source of

(now Lot A-21-1). The well provided water for the house on the Blagbrough’s

of Old Peterborough Road. A & T also owns another parcel identified as Lot A-30, which is situated north access a well located on land which was, at the time, retained by the Dimelings by Dimelings.” The deed also grants Blagbrough an easement to use and was inserted. It reads, “Above paragraph deleted – pertinent to land retained

were at one time under the common ownership of John and Anne Dimeling. rehearing. Blagbrough then appealed to the superior court. was drawn through the canal easement paragraph and a handwritten notation ZBA upheld the selectmen’s decision and later denied Blagbrough’s motion for 2 on Lot A-30. Blagbrough appealed the selectmen’s decision to the ZBA. The

canal easements that allegedly occurred when A & T removed timber and possession; and (4) was entitled to damages for interference with the well and above); (3) had acquired a portion of Old Peterborough Road through adverse adverse possession; (2) had certain rights to the canal easement (described seeking a declaration that it: (1) had acquired a portion of Lot A-21-1 through Blagbrough also brought a petition to quiet title in superior court,

Lot A-22 and Lot A-21 are bounded to the north by Old Peterborough Road and obtained approval to subdivide it into two lots: Lots A-21-1 and A-21-2. Both adjoining parcel, identified on the Town’s tax map as Lot A-21, and had included a canal easement with certain flowage rights therein. However, a line Blagbrough parcel contains a typed paragraph indicating that the conveyance voted to authorize a building permit for A & T to construct a single family home Dimelings by warranty deed dated September 16, 1963. The deed for the On September 29, 2003, the Town’s board of selectmen (the selectmen)

which is identified on the Town’s tax map as Lot A-22. A & T owns an

deed from heirs of the Dimelings. Blagbrough acquired Lot A-22 from the A & T acquired Lots A-21 and A-30 on February 20, 2001, by warranty

Blagbrough owns real property located at 293 Burton Highway in Wilton,

trial court. 118 (2000). Here we recite the facts pertinent to this appeal as found by the Town of Wilton, 153 N.H. 234 (2006); Blagbrough v. Town of Wilton, 145 N.H. of two previous opinions of this court. See Blagbrough Family Realty Trust v. Litigation involving the parties and the land here at issue was the subject

in part, reverse in part, and remand. granting a building permit to A & T; and (2) a petition to quiet title. We affirm adverse possession to a portion of Lot A-21-1 which was east (

p. 3 possession. It therefore concluded that Blagbrough had acquired title by boathouse was unclear and could not satisfy the criteria for adverse extent to which the Blagbroughs engaged in activity on land to the west of the of the boathouse. A & T cross-appeals, arguing that the evidence does not 21-1, extending all the way to a stone wall located approximately 150 feet west acquired title by adverse possession to a significantly broader swath of Lot A-

any portion of Lot A-21-1. support a conclusion that Blagbrough acquired title by adverse possession to criteria for adverse possession. However, the trial court also ruled that the

with the evidence because the evidence demonstrated that Blagbrough On appeal, Blagbrough argues that the trial court’s ruling is inconsistent

direction of Lot A-22) of the western-most point of the boathouse. Blagbrough’s adverse possession claim. i.e., in the correctness and use it as a reference point for our consideration of

around the boathouse and that these activities were sufficient to satisfy the found that the Blagbrough family engaged in activities in an area immediately Blagbrough (Corinne Blagbrough’s son), and Howard Preston, the trial court boundary line. Crediting the testimony of Corinne Blagbrough, Kenton The foundation of a small boathouse is slightly to the west of the

rulings in dispute. canal. Blagbrough then appealed and A & T cross-appealed, placing these Blagbrough property; and (6) A & T was required to repair some damage to the Road.’” Neither side challenges this finding. Accordingly, we assume its replace a portion of the pipe running from the well on Lot A-21 to the and the other located on the southern side of the so-called ‘Old Peterborough two granite bounds, one located on the northern side of the Burton Highway boundary between Lots A-22 and A-21-1 is “a straight course running between The trial court found that, according to the pertinent deeds, the

II. Adverse Possession: Lot A-21-1

damages. became the subject of a two-day bench trial and a subsequent hearing on

of the ZBA was neither unlawful nor unreasonable; (5) A & T was required to portion of Old Peterborough Road through adverse possession; (4) the decision had certain rights in the canal easement; (3) Blagbrough had not acquired any had acquired a portion of Lot A-21-1 by adverse possession; (2) Blagbrough When all was said and done, the trial court ruled that: (1) Blagbrough

ZBA appeal was consolidated with the quiet title petition, and both matters hauled it across Lot A-21-1. In response to a motion filed by Blagbrough, the possession to a portion of Lot A-21-1. We hold that they are not. p. 4 sufficient to support a conclusion that Blagbrough obtained title by adverse

the parcel. Accordingly, the question here is whether these activities are

years after the Blagbroughs acquired the parcel. That act, alone, therefore permitted their children to play on the parcel; (4) used the parcel as a source of was a one-time occurrence that the trial court found took place one or two (2) routinely entered the parcel for walks and other recreational activities; (3) that strip visually blended in with possessor’s lot due to rudimentary boundary use of disputed strip to cut hay, garden, and grow crops, combined with fact presumption that the owner was notified of it. N.H. 298, 299 (1952) (stating that forty years of continuous and uninterrupted satisfy the criteria for adverse possession. Compare Alukonis v. Kashulines, 97 them “routinely,” those activities are not sufficiently notorious or exclusive to although testimony did indicate that the Blagbrough family engaged in some of considering the adverse possession claim. With respect to these activities, more upon the Blagbroughs’ other activities on the subject parcel in recognizing this point, both the trial court and the parties properly focused

204 (1916). The act of tearing down the boathouse, although not insignificant, down the boathouse in approximately 1964 or 1965 because it was dilapidated;

to perfect adverse title; the use must be sufficiently notorious to justify a The law requires more than occasional, trespassory maintenance in order

by the subjective intent or the motives of the adverse possessor.

The trial court found that members of the Blagbrough family: (1) tore

(citations omitted). possession of land . . . strictly.” Bellows v. Jewell, 60 N.H. 420, 422 (1880) adverse possession claim, courts are to construe “[e]vidence of adverse the true owner of the cause of action. Id. In evaluating the merits of an possession of the land should, regardless of the basis of the occupancy, alert N.H. at 680. Rather the acts of the adverse possessor’s entry onto and

The success or failure of a party claiming adverse possession is not determined 131 N.H. 675, 679 (1989); Seward v. Loranger, 130 N.H. 570, 576-77 (1988). adverse possessor’s use of the land must be exclusive. See Kellison v. McIsaac, 571-72 (1994). In addition, adverse use is trespassory in nature, and the that an adverse claim is being made. Flanagan v. Prudhomme, 138 N.H. 561, and uninterrupted use of the land claimed so as to give notice to the owner must prove, by a balance of probabilities, twenty years of adverse, continuous, In order to obtain title by adverse possession, the adverse possessor

evidence in the record. Elwood v. Bolte, 119 N.H. 508, 510 (1979). court’s findings of historical fact, where those findings are supported by 153 v. Va. Surety Co., 153 N.H. 371, 373 (2006). We accord deference to a trial We review a trial court’s application of law to facts de novo. Tech-Built spring back. p. 5 canal merged under the common ownership of the Dimelings, and cannot

language from the deed was not a mistake; and (2) easement rights in the old

property.” On appeal, A & T argues that: (1) removal of the canal easement flow, use and maintain the portion of the canal located on the Blagbrough mistake and does not have the effect of extinguishing Blagbrough’s right to

easement to Blagbrough.” We agree. construed as reflective of an intent not to convey a portion of the canal 5 crossed-out and penned-in language contained in the deed cannot be actually did include a portion of the canal in their grant to Blagbrough, the Blagbrough property.” The trial court then held that since “the Dimelings of the canal had been transferred. It follows that if the Dimelings had realized [from the deed conveying Lot A-22 from the Dimelings to Blagbrough] was a rights in the canal and the handwritten portion evinces a belief that no portion intent of the parties.” canal.” After all, the crossed-out language of the deed pertains to flowage that the property conveyed to Blagbrough did not include any portion of the is that the deletion of the easement was based on the grantors’ erroneous belief As the trial court reasoned, the most “sensible construction [of the deed]

found that “there is no dispute that a portion of the canal lays within the trial court ruled that this “removal of the so-called canal easement language Reney v. Hebert, 109 N.H. 74, 75 (1968). The trial court easement – particularly the flowage rights therein – had been crossed out. The deed will be rejected and the deed construed reasonably to conform to the traversed Lots A-21 and A-22. Some of the language concerning the canal With respect to the first argument, we have held that “[a] plain error in a

Blagbrough conveyed a canal easement, granting rights in a canal that adverse claim); As described above, a portion of the deed from the Dimelings to year prescriptive period, was not open and notorious use giving notice of strip with row of spruce trees, which grew from small to large over the twenty- III. The Canal Easement

therefore reversed. A-21-1 by adverse possession. The trial court’s conclusion to the contrary is has not met its burden of establishing that it acquired title to any portion of Lot accepting the facts as found by the trial court, we conclude that Blagbrough other grounds by Dame v. Fernald, 86 N.H. 468, 471 (1934). Accordingly, even occasional cutting of timber on wild lot not sufficiently adverse), overruled on

Cushing v. Miller, 62 N.H. 517, 525 (1883) (stating that

N.H. 11, 16-17 (1967) (stating that plaintiff’s setting off disputed boundary use not exclusive or sufficiently adverse); Hemon v. Rowe Chevrolet Co., 108 N.H. at 572 (noting occasional playing of children on tract constituted minimal monuments in his favor, constituted adverse possession), with Flanagan, 138 the early 1800s. In support of this finding, the trial court noted that Old p. 6 Old County Road or Stiles Road, had been used for public travel since at least with the trial court.

Here, the trial court found that Old Peterborough Road, sometimes called Blagbrough could not acquire any rights in it by adverse possession. We agree supported by the evidence or are erroneous as a matter of law. Id. Id. Findings of fact by a trial court are binding upon us unless they are not 150 (2003). Whether a highway is created by prescription is a finding of fact. January 1, 1968 . . . .” See Mahoney v. Town of Canterbury, 150 N.H. 148, prescription if it had “been used . . . for public travel . . . for 20 years prior to Pursuant to RSA 229:1 (1993), a public road could be created by

A. Establishment of Public Highway

establish that Old Peterborough Road had been discontinued; and (3) therefore trial court, the issue is not preserved for our review. Peterborough Road was a public highway; (2) Blagbrough had failed to 22. The trial court rejected this argument, concluding that: (1) Old portion of Old Peterborough Road which abuts the northern boundary of Lot A- Blagbrough asserts that it has acquired title by adverse possession to a

IV. Adverse Possession: Old Peterborough Road

not address the merger issue for the first time on appeal. see also Broughton v. Proulx, 152 N.H. 549, 555 (2005). Accordingly, we will

decision. Where a party fails to demonstrate that it raised an issue before the supreme court.”). Nor did the trial court discuss the merger argument in its decide the questions of law presented by the case are in fact provided to the that all or such portions of the record relevant and necessary for the court to appears in the deed. Accordingly, we reject A & T’s first argument. record”); Sup. Ct. R. 13(2) (“The moving party shall be responsible for ensuring rights related to, the portion of the canal that was conveyed. No such language of questions presented “with appropriate references to the appendix or to the (moving party’s brief shall contain statement of facts material to consideration no specific reference to merger in the transcript. See Sup. Ct. R. 16(3)(d) indicating that it raised its merger argument before the trial court and we find Mgmt., 151 N.H. 248, 250 (2004). A & T has pointed to no part of the record appeal was raised below. See Sup. Ct. R. 16(3)(b); Bean v. Red Oak Prop. require the moving party to demonstrate where each question presented on extinguished by operation of the doctrine of merger. Our rules affirmatively As its fallback position, A & T contends that the canal easement was

have retained specific language in the deed pertaining to the use of, or flowage that they were still conveying a portion of the canal to Blagbrough, they would p. 7 Road”

laying out a road (the Burton Highway) to “the Old

introduced by A & T and the Town is some road or roads other than the same

Peterborough Road. However, the Petition spoke of

road depicted or referenced in the various maps and other documents (Citations omitted.) The trial court rejected Blagbrough’s argument “that the

discontinuing Old Peterborough Road. confirming its existence. Instead, it had the effect of the Burton Highway Petition did not have the effect of

official record.” Thus, although it references Old Peterborough Road,

The Burton Highway Petition did reference the Old discontinuance is not favored in the law.

public highway, the highway is presumed to exist until it is discontinued, and argues: as a public highway, it was discontinued. Once it is shown that a road is a First, citing State v. Canterbury, 40 N.H. 307, 312-13 (1860), Blagbrough Blagbrough advances several arguments for discontinuance in its brief.

inference of use of the road . . . .” (discussing discontinuance).

Id. (citations omitted); see also RSA 231:43 (Supp. 2006)

and such actions are recorded . . . , the best evidence of discontinuance is the satisfactory evidence. Because public roads are discontinued by town vote, is upon the party who asserts discontinuance to prove it by clear and 696-97 (1976). “Discontinuance is a fact that must be proved and the burden

Blagbrough argues that even if Old Peterborough Road was established

B. Discontinuance that “the inclusion of a road on a map is competent evidence to support the have held, based upon a different road’s inclusion in the same Carrigain map, trial court’s determination that Old Peterborough Road was a public highway. for the Burton Highway filed with the Court of Common Pleas in 1840. We established under RSA 229:1. Id. at 151-52. Similarly, here we uphold the evidence supported a finding that a public highway by prescription had been permissive. See Mahoney, 150 N.H. at 151. In Mahoney, we held that similar Blagbrough had not come forward with any evidence that use of the road was 88 N.H. 73, 80 (1936). Further, the trial court expressly found that or both sides of a road, its “evidentiary value is important.” Hoban v. Bucklin, both sides of Old Peterborough Road. Where a wall has been erected on either (1976). Moreover, during a view, the trial court observed stone walls lining

included in the Carrigain Map of 1816; and (3) referenced in the layout petition Peterborough Road was: (1) referenced on the Wilton Town Plan of 1805; (2) it is clearly erroneous. The trial court, acting as the p. 8 Blagbrough (as the party appealing this issue) was responsible for providing us, will not disturb the decision of the finder of fact unless trial court’s factual determinations are adequately supported by the testimony all the evidence, they must stand.”). Our review of the record reflects that the question of fact for the trial court. If the findings can reasonably be made on

in its brief as a point of reference for its argument. Without such maps, which reasonable person could find as did the trial court, we layout plan is contained in A & T’s appendix, Blagbrough does not rely upon it this court would have found differently but whether a identify these particular trees, stones, and stakes. While a Burton Highway with respect to the weight of evidence is not whether court and provided to us in connection with this appeal, we find no maps that (1986) (“The credibility and weight to be given to a witness’ testimony is a trier of fact. Because the proper standard of review quotations omitted); see also Rancourt v. Town of Barnstead, 129 N.H. 45, 50 Barrows v. Boles, 141 N.H. 382, 396-97 (1996) (brackets, citations, and

inconsistencies in the evidence presented at trial. finder of fact, is not required to explain away all

Peterborough Road was discontinued. Peterborough Road, without more, do not compel a finding that Old markers and supports its position. Indeed, in the exhibits admitted by the trial discontinuance, we find the Burton Highway Petition’s vague references to Old determination of issues of fact are functions of the us to any exhibit admitted by the trial court that clearly delineates all of these The resolution of conflicts in the evidence and beech trees, among many other types of markers. Blagbrough has not directed such as sticks, stones, stakes, birch trees, unidentified types of trees, and its position. former road agent; and (3) certain maps offered into evidence which supported to: (1) the testimony of Kenton Blagbrough; (2) the testimony of the Town’s discontinuance had not been established because it did not give enough weight Blagbrough also argues that the trial court erred in concluding that

Peterborough Road. Therefore, and given the strong presumption against layout of the Burton Highway – it does not describe a layout of the Old Peterborough Road. Furthermore, the Burton Highway Petition describes a Petition describes the layout of the Burton Highway as running past markers trajectory of the Burton Highway or the implications of that trajectory on Old see Sup. Ct. R. 13(2), 16(3)(d), we have no way of evaluating the precise

We find Blagbrough’s argument unavailing. The Burton Highway

recorded with that deed in the registry.” Old Peterborough Road described in the Blagbrough deed and the drawing affirmed the ZBA. p. 9 9 Blagbrough then appealed the ZBA’s decision to the superior court, which appealed the selectmen’s decision to the ZBA, which agreed with the selectmen. (amended 2004) for A & T to engage in construction on Lot A-30. Blagbrough

misinterpreting RSA 674:41, I(c). We consider each argument in turn. A-30 was grandfathered within the meaning of the zoning ordinance; and (4) concluding that Old Peterborough Road is a public highway; (3) ruling that Lot decision was unreasonable. Town of Chester, 152 N.H. at 580. the balance of probabilities, based upon the evidence before it, that the ZBA’s reasonable. RSA 677:6 (1 p. 9 996). It may set aside a ZBA decision if it finds by trial court must treat all factual findings of the ZBA as prima facie lawful and & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005). For its part, the unless the evidence does not support it or it is legally erroneous. Chester Rod Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court’s decision Our review of zoning board decisions is limited. Harrington v. Town of authorize a building permit pursuant to RSA 674:41, I(c) (Supp. 2002) review and comment by the planning board and town counsel, voted to Peterborough Road. On September 29, 2003, the Town’s selectmen, after north of the Blagbrough property and bounded on the south by Old pretrial rulings relating to a protective order sought by the Town; (2) Here, Blagbrough argues that the trial court erred by: (1) making certain

discontinued. Accordingly, even assuming and (2) it was not established that Old Peterborough Road had been Old Peterborough Road is a public highway, within the meaning of RSA 22 p. 9 9:1;

The ZBA ruling at issue relates to Lot A-30, a 12.8-acre parcel located

dispositive. Old Peterborough Road fails. inconsistent with others in their labeling of Old Peterborough Road is not successfully established the elements of adverse possession, its claim vis-à-vis

RSA 236:30 (1 p. 9 993). We have upheld the trial court’s determinations that: (1) One cannot acquire rights in a public highway by adverse possession.

C. Adverse Possession vis-à-vis a Public Highway

presumption against discontinuance, the fact that some maps may have been and other evidence presented at trial. Further, in light of the strong p. 10 10

N.H. 348, 351 (1996) (“In any proceeding, cross-examination, almost by witnesses through questioning and the use of exhibits. Appeal of Sutton, 141 germane to the ZBA appeal, the Town was entitled to cross-examine those at trial, when Blagbrough elicited testimony from witnesses concerning issues the December 21 and 22, 2004 hearing in this matter.” admission of additional evidence by the superior court in a ZBA appeal). Later, Estabrooks v. Town of Jefferson, 134 N.H. 367, 369 (1991) (explaining the discovery on issues pertaining to the ZBA appeal would not be necessary. See aid in its decision or be necessary to complete the record; therefore, additional the materials upon which the ZBA relied and that further evidence would not under an unsustainable exercise of discretion standard. for a protective order, the trial court apparently concluded that it understood v. Town of Hanover, 132 N.H. 677, 683 (1990). In granting the Town’s motion court’s discretion to allow further evidence in a ZBA appeal. Peter Christian’s unreasonable to the prejudice of Blagbrough’s case. It is within the trial cases, we do not find that the trial court’s rulings were untenable or Especially since it was Blagbrough that sought to consolidate these two

prohibit the Town from participating substantively in the evidentiary aspects of clearly untenable or unreasonable to the prejudice of its case. See id. standard, the plaintiff must demonstrate that the trial court’s ruling was (2004) (cross-examination). To establish that the trial court erred under this 150 N.H. 715, 719 (2004) (discovery); State v. Wellington, 150 N.H. 782, 788

necessary. The Trial Court (rulings on the management of discovery and the scope of cross-examination Servs. of Sullivan County, 149 N.H. 264, 268 (2003). We review a trial court’s discovery and in ruling on the conduct of a trial. Murray v. Developmental The trial court has broad discretion in managing and supervising pretrial

disallowed any discovery on the plaintiff’s RSA 677:4 appeal, it was bound to proceedings. On appeal, Blagbrough argues that “once the Trial Court introduce or rely upon evidence not found in the certified record of the ZBA the court permitted counsel for the Town to cross-examine witnesses and to

ZBA proceedings, and therefore further discovery on the ZBA matter was not appeal based only upon information contained in the certified record of the arguing that the superior court should rule on issues connected to the ZBA related to the ZBA appeal. In response, the Town moved for a protective order, propounded interrogatories to the Town, seeking discoverable information motion to consolidate. Later, on or about September 15, 2004, Blagbrough duplicative . . . .” On July 8, 2004, the Trial Court (Hicks, J.) granted the “the issues and evidence presented [in both cases] . . . are likely to be petition to quiet title and the ZBA appeal, arguing, among other things, that rulings in context. On June 2, 2004, Blagbrough moved to consolidate the We begin by placing Blagbrough’s challenge to the trial court’s pretrial

A. The Protective Order and Related Issues and subject to all district regulations applicable to lots p. 11 water supply and pollution control division approval

lot that did not satisfy the ordinance’s frontage requirements. that therefore, absent a variance, A & T could not obtain a building permit on a contends that both the ZBA and the trial court misinterpreted section 17.2 and excused A & T from having to comply with section 14.3.2. Blagbrough

permitted in that district subject to New Hampshire located . . . may be used for a single family dwelling if herein required in the District in which it is Ordinance [which] has less area and/or frontage than

concluded, and the trial court agreed, that section 17.2 of the ordinance In affirming the selectmen’s decision to grant the building permit, the ZBA better road. It is undisputed that Lot A-30 does not have 300 feet of frontage. Watershed District to have a minimum of 300 feet of frontage on a class V or ZBA appeal. [A] lot of record at the time of the effective date of this

Section 17.2 of the ordinance provides in pertinent part:

see fit to include. Id. drafters of the ordinance might have intended, or add words that they did not indications of legislative intent. Id. Moreover, we will not guess what the unambiguous, we need not look beyond the ordinance itself for further the language. Id. When the language of an ordinance is plain and and phrases of an ordinance according to the common and approved usage of of statutory construction generally govern our review, we construe the words Section 14.3.2 of the Wilton Zoning Ordinance requires each lot in the review de novo. Town of Warner, 152 N.H. at 79. Because the traditional rules silently. Accordingly, we reject Blagbrough’s first assignment of error on the The interpretation of a zoning ordinance is a question of law, which we

Lot A-30 is located in an area of the Town zoned as a watershed district. avoid precisely the type of predicament at issue here) is forced to stand by evidentiary inquiry, while the other (who opposed consolidation presumably to C. Grandfathering of Lot A-30 otherwise would result in one litigant being able to embark on a wide-ranging earlier in this opinion, we reject this argument. that Old Peterborough Road is a public highway. For the reasons articulated Blagbrough’s second argument is that the trial court erred in concluding

B. Old Peterborough Road

accuracy and depth of knowledge of the witness.” (quotation omitted)). To hold definition, is a review of direct examination in order to determine the veracity, to change the words or terms of its ordinance, it is of course free to do so.

p. 12 concerning the trial court’s interpretation of the ordinance. If the Town wishes

Accordingly, section 17.2 applies and we reject Blagbrough’s arguments “less” frontage. Lot A-30 has less frontage than is required (it has none). of section 17.2. The plain language of the ordinance applies anytime a lot has

frontage somehow materially differs from a lot with little frontage for purposes chain. that both the ZBA and the trial court misinterpreted RSA 674:41, I(c). and had been described separately from Lot A-21 in the deeds in the Dimeling Blagbrough’s final assignment of error pertaining to the ZBA appeal is A-30 was located on the opposite side of Old Peterborough Road from Lot A-21 Lot A-30 was a “lot of record” within the meaning of section 17.2 because Lot have intended, or add words that they did not see fit to include. D. RSA 674:41, I(c)

which would undermine this finding.

Third, we decline Blagbrough’s invitation to hold that a lot with no

Warner, 152 N.H. at 79.

County, New Hampshire.” While acknowledging that Lot A-30 and Lot A-21 Second, the word “buildable” does not appear anywhere in the definition distinct parcel in a legally-recorded deed filed in the record of Hillsborough ordinance defines a “lot of record” as “[l]and designated as a separate and in the Dimeling chain, and Blagbrough has pointed to no persuasive evidence trial court found that such a separate description was contained in the deeds within any deed conveying the lot, the lot must be described separately. The record” to be described in a separate deed. Rather, it simply requires that First, the plain language of section 3.1.19 does not require a “lot of

it allowed such interpretation.” We find these arguments unavailing.

that the “Ordinance should not be interpreted to allow development in the should be read into the definition of “lot of record.” Blagbrough also argues the Dimelings’ ownership and because a requirement that the lot be “buildable” at the time of the effective date of the ordinance. Section 3.1.19 of the of record” both because there was no separate deed for Lot A-30 at the time of Blagbrough contends that Lot A-30 does not satisfy the definition of “lot

In order for section 17.2 to apply, the subject lot must be a “lot of record”

exception of lot size and/or frontage. within the district wherein the lot is located with the statute. The mere fact that the statute uses the plural p. 13 for properties that fall within the purview of the building permits on an individual, case by case basis,

I(c) does not permit the local governing body to grant thereof; and no merit in Blagbrough’s suggestion that RSA 674:41, buildings on said class VI highway or a portion

We agree with the trial court’s reasoning that there is the issuance of building permits for the erection of

words that the legislature did not include. Id. as written and will not consider what the legislature might have said or add meaning to the words used. thereof; and Id. We interpret legislative intent from the statute When examining the language of a statute, we ascribe the plain and ordinary nor liability for any damages resulting from the use whole. Appeal of Town of Bethlehem. . ., 154 N.H. ___, ___ (decided Nov. 2, 2006). legislature’s intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of the

recorded in the county registry of deeds . . . . limits of municipal responsibility and liability has been comment by the planning board has voted to authorize applicant shall produce evidence that notice of the (3) Prior to the issuance of a building permit, the

responsibility for maintenance of said class VI highway (2) The municipality neither assumes proposed to be placed: giving access to the lot upon which such building is issued for the erection of a building unless the street part of the municipality nor shall a building permit be

(1) The local governing body after review and

(c) Is a class VI highway, provided that:

[N]o building shall be erected on any lot within any

RSA 674:41, I(c) provides, in pertinent part:

issue building permits to individual landowners. Blagbrough contends that RSA 674:41, I(c) does not authorize selectmen to the statutory scheme. p. 14 Accordingly, discerning no error, we uphold the trial court’s interpretation of need not, demonstrate a practical difficulty or unnecessary hardship.

regulations . . . .

legislative purpose of the statutes. each other, and so that they will lead to reasonable results and effectuate the

harmony with the overall statutory scheme. the procedure to be followed by those applicants who cannot, choose not, or 674:41, I(c) does not conflict with RSA 674:41, II. Rather, it simply sets forth that provision – to appeal a decision of a local administrative officer. RSA practical difficulty or unnecessary hardship – the conditions needed to trigger RSA 674:41, II provides a method for an applicant suffering from

municipality which has adopted zoning Id. permits to the zoning board of adjustment in any

with a similar subject matter, we construe them so that they do not contradict administrative officer having charge of the issuance of Resort, 152 N.H. 399, 405 (2005). When interpreting two statutes that deal for such permit may appeal from the decision of the

We do not construe statutes in isolation; instead, we attempt to do so in “for building permits from the local zoning board of adjustment. Blagbrough argues that RSA 674:41, II requires individual lot owners to seek

related to existing or proposed streets, the applicant not require the building, structure or part thereof to be hardship, and when the circumstances of the case do specifically indicates that approvals can be granted section would entail practical difficulty or unnecessary municipality-wide basis. On the contrary, the statute Whenever the enforcement of the provisions of this approval en gross, i.e., either on a road-wide or

which provides: Blagbrough disputes the trial court’s reasoning by citing RSA 674:41, II,

building on a particular lot or lots. by the selectmen as to whether to grant approval for the statute contemplates a case by case determination (Emphasis added.) These terms support the view that said class VI highway or a portion thereof.”

conclusion that the selectmen must grant such terms “permits” and “buildings” does not compel the provided by this chapter. p. 15 the selectmen shall have the same right of appeal as use. Any person aggrieved by the action hereunder of

such right-of-way before the same shall be open for such damages shall be paid by the person applying for occasioned by the laying out of such right-of-way, and

determine the necessity for and assess the damages

notice to and hearing of the owner of the lands, shall of any person for the purposes aforesaid, and, upon discretion, may lay out a right-of-way through the land

town within which said lands are situated, in their

Lots A-21-1, A-21-2 and A-30. 15 Lot A-21 was constructed to facilitate tree removal and to provide access to

other material is to be removed, the selectmen of the owner of the land from which such lumber, wood or to pass through the lands of a person other than the

plaintiff may have an easement to obtain well water from defendant’s property.”

removed during the construction of a road across Lot A-21. The road across

convenient removal of lumber, wood or other material, Upon petition, when it becomes necessary for the

RSA 231:40 provides:

of-way from the selectmen to remove timber from his own land merely because because those statutes “cannot be read to require defendant to obtain a rightbroken accidentally because it was entangled in the roots of a tree that was court ruled that the requirements of RSA 231:40-:42 were not triggered testimony of Alan Stevens, the principal of A & T, that this water line was give it standing to privately enforce the provisions of RSA 231:40-:42. The trial property to the residence on Blagbrough’s property. The trial court credited the short, Blagbrough’s position seems to be that the well easement operated to the selectmen before it created a right-of-way to remove timber via the road. In Blagbrough argues that RSA 231:40-:42 (1993) required A & T to petition

A. RSA 231:40-:42

approximately 900-foot water line that runs from the well head on A & T’s The well easement is described earlier in this opinion. It contains an

then analyze Blagbrough’s contentions. caused to its well easement. We first provide some factual background, and placed a timber road over Lot A-21-1; and (2) fashioning the remedy for damage ruling that A & T was not required to comply with RSA 231:40-:42 when it Blagbrough’s final two arguments are that the trial court erred in: (1)

VI. Damages which is no longer in use, and was not buried deep enough under ground to p. 16 defendant.” The trial court also found that “[t]he line consisted of lead piping,

not in particularly good condition at the time it was accidentally broken by

1985. Further, the trial court found that the “water line was very old and was source of drinking water for the residence on Blagbrough’s property since was located on A & T’s property and the well line had not been used as a

the case.

violation, we will conclude that the statute does not do so. court’s exercise of discretion. For example, the damaged portion of the well line legal remedy existed. Several circumstances undermine Blagbrough’s challenge to the trial

Gutbier, 150 N.H. at 541-42. order unless its decision constitutes an unsustainable exercise of discretion. v. Baldi, 128 N.H. 760, 764 (1986). We will uphold a trial court’s equitable have broad discretion in exercising equity jurisdiction. Thurston Enters., Inc. the separation between law and equity is not sharp, courts in New Hampshire

Gutbier v. Hannaford Bros. Co., 150 N.H. 540, 541 (2004). Because

the trial court to be exercised according to the circumstances and exigencies of The propriety of affording equitable relief rests in the sound discretion of

explicit or implicit private right of action to seek a declaration of the statute’s private right to seek such a declaration and damages. Where there is no decision constituted an improper award of equitable relief where an adequate Nor does Blagbrough make any argument as to why we should find an implicit, cost of repairing the entire well line. Blagbrough contends that the trial court’s seek both a declaration that RSA 231:40-:42 have been violated and damages. than ordering A & T to pay $3,260 in damages, an amount representing the A & T to repair the portion of the well line that traverses A & T’s property rather Blagbrough’s final argument is that the trial court erred in requiring

B. Nature of Relief Granted

148 N.H. 485, 487 (2002).

any statutory or other legal authority establishing a private right of action to based upon an asserted violation of RSA 231:40-:42, it has not directed us to the selectmen in this case. To the extent that Blagbrough seeks damages laying out such a right-of-way, we have been provided with no such decision by mechanism for a “person aggrieved” by a decision of a board of selectmen Blagbrough may prevail here. Although RSA 231:40 provides an appeal We hold that RSA 231:40-:42 do not provide a basis upon which

such a right-of-way, discontinue it, or award damages arising out of its use. hearing requirements that must be followed before the selectmen may lay out may be used and discontinued. RSA 231:42 then sets forth the notice and RSA 231:41, in turn, sets forth the conditions under which such a right-of-way we affirm. p. 17 the entry of an order consistent with that determination. In all other respects, 17

portion of Lot A-21-1 by adverse possession, we remand to the trial court for

BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

Because we hold that Blagbrough did not satisfy the criteria to acquire a

appeal, but is not briefed.”). 206, 210 (2006) (“We . . . deem an issue waived when it is raised in a notice of

the extent that A & T’s notice of appeal raises issues not addressed in this A & T to replace the portion of the line lying on its property rather than paying from the deed to the Blagbroughs, arguments we already have addressed. To conclude that the trial court unsustainably exercised its discretion in ordering that the Dimelings made a mistake in striking the canal easement paragraph case – not a law suit for damages. Under these circumstances, we cannot Blagbrough by operation of the doctrine of adverse possession and in ruling argued that the trial court erred in awarding a portion of Lot A-21-1 to cross-appeal but essentially argued only two in its brief. In its brief, A & T Finally, we observe that A & T raised four issues in the notice of its

VII. A & T’s Cross-Appeal

the hearing on damages, Blagbrough took the position that this was an equity conform with modern practice.” It also bears noting that during trial and at