2006-782, TERRY L. HERSH & a. v. JOSEPH W. PLONSKI & a.

No. 2006-782

Belknap Plonski, appeal the order of the Superior Court (Smukler I. Background DALIANIS, J. The respondents, Joseph W. Plonski and Lori Ann Rolan-

Broadview Drive; the Plonski property is behind them. The Plonski property in Sanbornton. The Hersh and Gagne properties are next to one another on The record supports the following: The parties own abutting properties

a

Rath, Young and Pignatelli, P.C. Sheehan Phinney Bass + Green, P.A.

We affirm. petitioners, Terry L. Hersh, Barry R. Hersh, Gerard Gagne and Susan Gagne. cross-petition to quiet title and granting the petition to quiet title filed by the

the brief and orally), for the respondents. THE SUPREME COURT OF NEW HAMPSHIRE , of Manchester (Robert H. Miller on

Reynolds on the brief), for the petitioners. brief and orally), and Conklin & Reynolds, P.A., of Plymouth (Deborah R.

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 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as in favor of the Hershes and Gagnes. This appeal followed. p. 2 Following a two-day bench trial, supplemented by a view, the trial court ruled predecessors-in-title to the Gagne and Hersh properties rededicated it. because the Town impliedly accepted it through public use or because the the Plonskis contended that the paper street became a public highway either public highway and, therefore, belonged to the Hershes. In their cross-petition, fee holder to Georgia E. Amidon in 1942. See the Town never accepted the paper street, it never attained the status of a The Gagne property was part of Lot 12 and was conveyed by the original in the 1928 subdivision plan. The Hershes and Gagnes asserted that because In this case, the parties sought to quiet title to the paper street depicted 2

1940. See was conveyed by the original fee holder to William E. and Almenia D. Harper in The Hersh property was part of Lot 11 of the 1928 subdivision plan and

Goodwins conveyed Lot 2 of their subdivided property to the Gagnes. subdivided property to Laurence S. and Diane P. Dibiaso. In 2005, the property into two lots. See infra App. C. In 1997, they conveyed Lot 1 of their A. Goodwin. In 1987, the Goodwins submitted a plan to subdivide their and Priscilla L. Williams, who, in 1970, conveyed it to Stephen L. and Roberta and Doris Lavallee. In 1952, the Lavallees conveyed the property to Wendell C. conveyed it to Maurice and Jeanne Hueber, who, in 1951, conveyed it to Ernest property was carved out of the tract and the right of way was created. See infra App. B. In 1946, Amidon All three properties were originally part of one tract. In 1898, the Plonski

boundary line adjustment plan). sold one of their subdivided lots pursuant to that plan. See infra App. E (Hersh infra Broadview Drive and ended at what is now the Plonski property. See App. D. In 1998, they filed a boundary line adjustment plan and then Harper in 1986. In 1996, the Hershes filed a plan to subdivide their lot. See road between the Hersh and Gagne properties, which began at what is now subdivision plan. This subdivision plan showed a proposed thirty-foot-wide infra App. B. The Hershes bought the property from Almenia In 1928, the Hersh and Gagne properties were separated pursuant to a

subdivision plan), App. D (Hersh subdivision plan). street overlap, however, for part of their lengths. See infra App. C. (Goodwin vegetation. The Plonskis’ one-rod right of way and the thirty-foot-wide paper constructed. The first half of its length is currently overgrown with trees and B (1928 subdivision plan). This so-called “paper street” has never been

The Plonskis purchased the property in 2003.

begins on Broadview Drive and crosses the Gagne property. way of a right of way, which is one rod (sixteen and one-half feet) wide, that infra App. A (map of Plonski property). The Plonskis access their property by borders Chapman Brook on one side and Lake Winnisquam on the other. See used presently or in the future for such public use.” Siegel, The Public Role in p. 3 of the owner of the fee manifesting an intention that it shall be accepted and Dedication is “the devotion of land to a public use by an unequivocal act

at 378 (1997). without cost.” K. Young, Anderson’s American Law of Zoning 4th ed. § 25.25, public (represented by the municipality) gains land for a public purpose Corporations acceptance. Polizzo v. Town of Hampton § 33.02, at 308 (3d ed. 2000). Once a dedication is effective, “the twenty years of use by the public before 1968; or (4) by dedication and 2006) (quotation omitted); 11A E. McQuillin, The Law of Municipal to Privatize New Communities in the United States authority; (2) through the construction of a road on public land; (3) through, 38 Urb. Law. 859, 916 (Fall Local Government Land Use Policies That Eliminates The Legal Requirements eminent domain and the laying out of a highway by some governmental Establishing Private Residential Communities: Towards a New Formulation of A public highway may be created: (1) through the taking of land by

B. Dedication and Acceptance in General

public highway by dedication and acceptance. 229:1 (1993). At issue in this appeal is whether the paper street became a

probabilities. See was established has the burden of demonstrating this by a balance of the had rights to it as a public highway. The party asserting that a public road to the paper street, but rather contended that they, as members of the public, In their cross-petition to quiet title, the Plonskis claimed no private rights

II. Analysis (whether a public highway has been created is a question of fact). Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 36 (2007) are not supported by the evidence or are erroneous as a matter of law. Id.; see trial court’s findings with respect to the public status of the road unless they Sorenson v. Wilson Gill v. Gerrato, 154 N.H. 36, 43 (2006). We are bound by the as against all other parties whose rights may be affected by the court’s decree.” In an action to quiet title, the burden “is on each party to prove good title

A. Standard of Review

Riverwood Commercial Prop’s v. Cole, 134 N.H. 487, 490 (1991). unless it is erroneous as a matter of law or unsupported by the evidence. and the petition so alleged.” Id. We will uphold the trial court’s determination duly recorded interest in the property, unless those parties claimed no interest judgment quieting title to disputed property “in the absence of parties with a

p. 4 “rededications” of the street for public use; and (3) any of these subsequent whether: (1) the 1928 offer had ever been accepted; (2) there were subsequent constituted an offer to dedicate the paper street for public use. They disputed Siegel, supra In this case, the parties did not dispute that the 1928 subdivision plan Both an offer to dedicate and an acceptance may be express or implied. C. Arguments on Appeal

assigning police patrols to it. Siegel, supra opening up or improving a street, repairing it, removing snow from it, or offer of dedication by ordinance or formal resolution, or implied by acts such as Similarly, acceptance may be by express acts that include adopting an

any other construction.” 11A McQuillin, supra § 33.54, at 472-73. the public must be unequivocal, clear and satisfactory, and inconsistent with

McQuillin, supra § 33.36, at 413. dedications, . . . [it] must be clearly and unequivocally manifested.” 11A omitted). Because “[t]he intent of the dedicator is the foundation and life of all maintenance and repairs of it.” which a reasonable inference can be drawn.” Siegel, supra at 919 (quotation the owner that clearly indicate an intention to devote land to public use or from “Dedications also can be implied from circumstances or by acts or conduct of and Taxation § 45.01, at 422-23 (1993); see Polizzo, 126 N.H. at 401. way to offer to dedicate a street to public use. 16 P. Loughlin, Municipal Law recorded plan that shows the subdivision of a tract with proposed streets is one plat. Id. at 919. Under New Hampshire law, conveying lots by reference to a include dedicating by deed, recording a plat and selling lots with reference to a

at 919-20. Express acts that may constitute offers to dedicate

the public, and then oblige the town to charge themselves with the municipality ‘accepts’ [it].” Siegel, supra towns if an individual could lay out a way upon his own land, throw it open to “that is, the landowner ‘offers’ up its property to the municipality and the (1844), if acceptance were not required, “it would be a great hardship upon To be effective, there must be both an offer of dedication and acceptance: ellipsis omitted). As we explained in State v. Atherton, 16 N.H. 203, 210-11 accidents happening upon it.” Polizzo, 126 N.H. at 401-02 (quotation and accepting city or town liable for its construction and maintenance, or for implications. It turns the street into a public highway, and thereby renders the 3d § 13, at 37 (2004). Acceptance of a street, thus, has “broad legal other public service outweigh the public benefits.” 77 Am. Jur. Proof of Facts upon it, as where the concomitant burdens of maintaining a street, park, or generally protects the public from having an undesirable dedication thrust Somersworth, 131 N.H. 253, 255 (1988). “The acceptance requirement

consistent with the purpose of the dedication.” Cunningham & Tischler, acceptance by the Town, the use by the public “must be unequivocal and accepted by the Town for public use before 1971. To constitute implied that the land upon which the paper street is now located was not impliedly Based upon this testimony, the trial court reasonably could have found

sand pit, if you want to call it that. There was nothing on it.” is now located. He asserted that this area was “an open area or a field or a open and that there was no designated roadway or path where the paper street lived in the area off and on since 1919. He testified that the entire area was The trial court also credited the testimony of Malcolm Gilman, who has

and 1961 failed to depict the paths about which Stearns testified. because they “[weren’t] used that often.” Photographs of the area from 1953 of two paths in the area of the paper street. These paths were not dirt roads the area to “park.” She testified that people accessed Chapman Brook by way would “just be all over,” riding their bikes or walking, and that teenagers used plan was “basically [her] playground.” She and other neighborhood children that, between 1942 and 1963, the entire area shown on the 1928 subdivision The trial court credited the testimony of Roberta Stearns, who testified

been dedicated.”). Here, the use of the land underneath the paper street for established by the use by the public of the land for the purpose to which it had Francisco v. Canavan, 42 Cal. 541, 554 (1872) (“[A]cceptance is generally evidence and is not erroneous as a matter of law., 15 Rutgers L. Rev. 377, 398 (1961); see San of the record submitted on appeal, we hold that this finding is supported by the acceptance of the paper street for public use by 1971. Based upon our review to whether the trial court erred when it found that there was no implied to dedicate the paper street to public use. Accordingly, we confine our analysis The Plonskis concede that the Town has never formally accepted the offer

accepted within twenty years. See made, New Hampshire law required that, to be effective, the offer had to be When the 1928 offer to dedicate the paper street for public use was

1. Acceptance of 1928 Offer the offer was accepted by 1971. 1928 subdivision plan in 1951. Thus, to prevail, the Plonskis had to prove that found, and the parties do not dispute, that the last lot was sold pursuant to the plan. See Duchesnaye v. Silva, 118 N.H. 728, 731 (1978). The trial court ran from the date upon which the last lot was sold pursuant to the subdivision assume, without deciding, that, as the parties assert, the twenty-year period

the street for public use. The Plonskis challenge these findings on appeal. been accepted and that there had not been any subsequent rededications of each had a fee simple interest in the paper street to its center line. See p. 6 Alternatively, they assert that, after 1971, the Goodwins and the Hershes

2. Subsequent Rededications

a lot pursuant to that plan. and/or in 1998 when they filed a boundary line adjustment plan and then sold by dedication and acceptance. See expressly rededicated it in 1996 when they filed a plan to subdivide their lot public highway by prescription, it is not required to establish a public highway became owners of the entire fee interest in the proposed street and they that while continuous public use for twenty years is required to establish a “rededicated” for public use. They contend that, after 1971, the Hershes 6 show that the public used the area continuously for twenty years. They assert The Plonskis next argue that, after 1971, the paper street was The Plonskis also assert that the trial court erred by requiring them to Duchesnaye, 118 N.H. at 732. The Hershes, they argue, rededicated their half

Catalano v. Town of Windham that the paper street was used “not just by the lot owners and their guests.” To establish acceptance by public use, the Plonskis had to demonstrate

not for use as a street. road. In this case, the use established either was not by the “public” or was quantum of public use necessary to establish implied acceptance of a dedicated Realty Trust, 155 N.H. at 36. We need not decide, in this opinion, the

public use. “public” use and, therefore, did not establish acceptance of the paper street by predecessors-in-title and their invitees of the one-rod right of way was not 112 N.H. 57, 61 (1972). As a matter of law, therefore, use by the Plonskis’ without deciding, that, as the Plonskis assert, “[p]ublic use of even part unequivocal acts of acceptance by public use.” McInnis v. Town of Hampton public and, therefore, implied acceptance by the Town. We will assume,, lot owners or by] neighboring owners . . . [does] not rise to the height of predecessors-in-title and invitees constituted use of the paper street by the The Plonskis contend that the use of the one-rod right of way by their, 133 N.H. 504, 510 (1990). “Limited use by [the

establish acceptance of the paper street by public use. their invitees of the one-rod right of way was insufficient, as a matter of law, to length.” Even so, we hold that use by the Plonskis’ predecessors-in-title and proposed street’s length constitutes acceptance by public user for the entire

was insufficient to show acceptance of property for public use as a street). 916 (N.J. Super. Ct. Ch. Div. 1970) (use by public of property as a parking lot of the street for use as a public road. See Kiernan v. Primavera, 262 A.2d 910, recreational purposes or for “parking” was insufficient to establish acceptance manifest their intent to rededicate the paper street for public use. See p. 7 The Hershes’ 1996 subdivision plan does not clearly and unequivocally

11A McQuillin, supra § 33.30, at 396. conclusively the original owner’s intent to offer the property for dedication.” delineating a way or a street for boundary purposes is insufficient to establish proposed subdivision. “[S]imply placing a line or a mark on a plat or demonstrate the location of one of the boundaries of Lot 2 of the Hershes’ dedicate public right of way). At best, the plan shows the paper street to specify whether right of way was private or public did not constitute offer to Town of Matthews, 627 S.E.2d 650, 659 (N.C. Ct. App. 2006) (deed that did not way, just as it refers to the Plonskis’ private one-rod right of way. See Wright v. the paper street as a “proposed” street or a “public” street, but as a right of rod right of way, it refers to both of these as rights of ways. It does not refer to App. D. Although the plan shows the paper street, as well as the Plonskis’ one-

at 413-14. from writings, they must clearly manifest the intent to dedicate.” Id words.” Id. § 33.36, their plain meaning and intent, exhibited by their outlines as well as by their real intention of the plattor.” Id. If the intent to dedicate “is to be gathered “In construing plats and maps as to dedications, courts will give effect to even extrinsic evidence may be considered for the purpose of determining the evidence is admissible. Id. “In such a case, surrounding circumstances and inadmissible. Id. at 377. If the plat or map is uncertain and ambiguous, parol Where the plat or map is complete and unambiguous, parol evidence is construe a dedication as to benefit the public rather than the donor. Id. of it, for public use. See subsequent conduct.” Id. at 376. Within reasonable limits, the court will rededicate either the entire paper street, assuming they owned it, or their half consider representations made by those making the plat as well as their 1998 boundary line adjustment plan clearly manifested their intent to the plat by the parties will be accepted . . . .” Id. at 375. “[T]he court may We first address whether the Hershes’ 1996 subdivision plan and/or Id. at 374-75. “Where the meaning is doubtful, the practical construction of

. § 33.25, at 374. “The document must be construed as a whole.”

of law for the court.” Id. § 33.41, at 426-27. for public use is a question of fact, “[t]he construction of a plat is generally one ordinarily the question of whether the property owner intended to dedicate land

open and that the trial court erred when it found to the contrary. that these subsequent dedications have been accepted or that they remain lot, and in 1997, when they sold one of the subdivided lots. They assert either their half of the paper street in 1987, when they filed a plan to subdivide their of the street in 1996 and/or in 1998. The Goodwins, they contend, rededicated p. 8 Affirmed

depict the one-rod right of way. subdivision plan did not refer to the paper street as a right of way and did not subdivision plan, they are mistaken. Unlike the other plans, the 1928 plan referred to the paper street “in exactly the same way” as did the 1928 their 1998 boundary line adjustment plan and the Goodwins’ 1987 subdivision Although the Plonskis assert that the Hershes’ 1996 subdivision plan,

BRODERICK, C.J.