2008-776, RICHARD MANSUR & a. v. DAVID MUSKOPF & a.; DAVID MUSKOPF & a. v. SWALLOW POINT ASSOCIATION

Third-party defendant, Swallow Point Association, filed no brief.

respondents, David Muskopf and Mary Allain. Harris and Coleen M. Penacho on the brief, and Mr. Harris orally), for the McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H.

Mansur. brief and orally), for the petitioners, Richard Mansur, Susan Mansur and Clark Normandin, Cheney & O'Neil, PLLC, of Laconia (Philip P. Bonafide on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-776 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 in width, more or less, as shown on said plan. p. 2 with others; said shore frontage of said Reserved Lot being 75.00

petitioners in 1997, by deed containing the same easement language.

monument at the southeast corner of the lot. Lot 20 was later conveyed to the

owns a parcel known as the Reserved Lot. Reserved Lot in order to gain access to the shore of Lake 18, and Swallow Point Association (Association), the third-party defendant, discrepancies regarding boundary lines set forth in a subdivision plan, plan, as well as the right and privilege to cross and re-cross said of the three lots at issue. The petitioners own lot 20, the respondents own lot Drive to approach the Reserved Lot, so-called, as shown on said Reserved Lot as having “75’ +/-” of frontage on the lake, from a concrete Registry of Deeds on July 20, 1957 (the Trojano plan). This plan shows the Swallow Point” prepared by H.D. Trojano and recorded at the Carroll County the lake: that leads to the Reserved Lot. The “plan” referenced in the Ceriello deed is the 1956 “Plan of Subdivision of The Ceriello deed specifically includes an easement right providing access to

was created in the 1950s, and the present dispute is caused by a history of the developer of the subdivision, and, thus, at one time was the common owner Together with the right and privilege of using said Swallow Point

it is located in the inland portion of the subdivision, along a subdivision road deed dated July 30, 1958, from the developer to Joseph and Helen Ceriello. waterfront parcel and does not abut either the Reserved Lot or lot 18. Rather, For purposes of this litigation, the chain of title for lot 20 begins with a both lots constitutes shoreline of Lake Winnipesaukee. Lot 20 is a non-

affording lot 20 access to the lakeshore via the Reserved Lot. The subdivision Moultonborough, two of which are contiguous. Swallow Point Corporation was The controversy before us centers upon the scope of an easement

abuts the western boundary of the Reserved Lot, and the southern boundary of

record. This appeal involves three lots in the Swallow Point subdivision in The following facts were recited in the trial court’s orders or appear in the

Winnipesaukee. We affirm. Mansur, extends onto the shoreline of their property along Lake benefiting non-waterfront property owned by petitioners Richard and Susan appeal an order of the Superior Court (Houran, J.) ruling that an easement, BRODERICK, C.J. The respondents, David Muskopf and Mary Allain, purchaser.”

p. 3 or the status of any person or entity in any relevant chain of title as a bona fide issue are of record, and no question is presented as to the validity of any deed Trojano plan. The trial court found, and no one disputes, that “[a]ll deeds at

Lot, the lot now owned by the Association, by deed specifically referencing the

the Association. Finally, in August 1961, the developer conveyed the Reserved

stake monuments and not with reference to the Trojano plan. Consequently, if

conveyed any ownership interest in the Reserved Lot to individual members of plan. At this point, the developer still owned the Reserved Lot and had not describing the land by metes and bounds and without reference to the Trojano

Prior to 1960, certain properties were developed with reference to the white

December 1958, the developer conveyed lot 18 to the Andrews by deed solely

substantially east of the shoreline boundaries identified in the recorded plan. stake” boundary markers along a portion of the shoreline that were located plan was recorded in 1957, and at some later point, the developer placed “white the Association in 1997.

well as abutting lot 18, which is the lot now owned by the respondents. In 3 feet, more or less. At this point, the developer still owned the Reserved Lot, as lot by referring to the Trojano plan, with the shoreline measuring seventy-five

the shoreline boundary markers outlined in the Trojano plan. The Trojano lot description remains the same in the deed that conveyed the Reserved Lot to having a westerly boundary, abutting lot 18, that measures 238.78 feet. The Reserved Lot as having seventy-five feet more or less of lake frontage and

access the lake and to use the Reserved Lot lake shore. The deed described the

subdivision located west of lot 18 were actually developed inconsistently with Precipitating the present dispute, some of the shoreline lots in the

describes the parcel by referring to the Trojano Plan. That plan describes the

petitioners, with an easement right to cross and recross the Reserved Lot to

boundary line as shown in the Trojano plan. Reserved Lot does not conform to the measurement of 238.78 feet for the same bounds measurement of 219.1 feet for the easterly boundary abutting the

individuals who owned subdivision lots at that time. The Reserved Lot deed

In July 1958, the developer conveyed lot 20, the lot now owned by the In sum, in 1957, the developer subdivided the Swallow Point property.

conveyed the property to the respondents. Unfortunately, the metes and

begins with a deed dated August 31, 1961, from the developer to all of the The chain of title for the Reserved Lot for purposes of this litigation

description was used in lot 18’s chain of title through the 2005 deed that only, without reference to the Trojano plan. The same metes and bounds Andrews. The Andrews deed conveys the lot by metes and bounds description deed dated December 15, 1958, from the developer to Howard and Mary For purposes of this litigation, the chain of title for lot 18 begins with a reconsider, which the trial court denied. p. 4 easement owned by the petitioners. The respondents filed a motion to own, forty-one feet of their shoreline is subject to the seventy-five-foot

court’s order, while the respondents indeed own the land they had claimed to

measurements described in a deed. We disagree. rule that when discrepancies arise, actual monuments prevail over

Trojano plan by approximately forty-one feet. Thus, according to the trial reduced the seventy-five-foot shoreline of the Reserved Lot as described in the of the shared boundary line between lot 18 and the Reserved Lot, which

comports with the intent of the parties who created the easement and with the

southeast corner of the Reserved Lot. The trial court also resolved the location

respondents, confining the easement to the shoreline of the Reserved Lot the petitioners’ easement must likewise be limited. According to the shoreline boundary line between their lot and the Reserved Lot, the scope of

more or less of the lake shore, as measured from the concrete monument at the

opinion.

easement to cross and recross the Reserved Lot and access seventy-five feet the easement clause in the 1958 Ceriello deed, the petitioners owned an their abutting lots. The trial court consolidated the cases. It ruled that under

Reserved Lot to include forty-one feet of their lake frontage. They contend that law for this court to decide by determining the intention of the parties at the “The interpretation of a deeded right of way is ultimately a question of

in place for more than twenty-five years at that point. lot in the subdivision, this ruling is not challenged and plays no part in this boundaries reflected the actual location of shoreline monuments that had been issued a ruling regarding petitioner Clark Mansur, who owns a non-waterfront Reserved Lot and lot 18 is not challenged. Additionally, while the trial court

against the Association to determine the status of the boundary line between

petitioners’ easement extends beyond the thirty-four-foot shoreline of the The respondents argue that the trial court erred in ruling that the

including the boundaries between lots 17 and 18. The reestablished court’s conclusion about the location of the boundary line between the

ownership of the disputed land. They also sought a declaratory judgment encroached on the Reserved Lot. The respondents, however, claimed

the boundary lines for certain lots in the subdivision were reestablished, result of litigation, a court-approved consent decree was entered in 1991, and would isolate other dwellings from the utilities appurtenant to them. As a

a new house. The petitioners filed suit, alleging that the new building After the respondents purchased lot 18 in 2005, they began constructing

the subdivision, property lines would run through the middle of dwellings and the boundary lines identified in the Trojano plan were enforced in this area of the developer could only convey the property to which it had title at the time.

p. 5 easement benefiting lot 20, the Ceriellos’ lot. As the trial court correctly ruled, identified on the Trojano plan, it did not alter the established recorded conveyance altered the boundary line between the Reserved Lot and lot 18 as

Reserved Lot as it existed at that time. merit. the Reserved Lot as identified on the recorded Trojano plan. While this monuments control the intended scope of the easement. This position lacks

for the scope of the easement to include the seventy-five-foot shoreline of the changed. In conveying lot 18 to the Andrews, the developer deeded a portion of established a thirty-four foot shoreline for the Reserved Lot, and those the Trojano plan, that the boundary line separating the two lots effectively by metes and bounds, rather than by referring to the boundaries established in 5

Therefore, we conclude that the parties creating the easement plainly intended created, the developer owned both the Reserved Lot and abutting lot 18. the southeast boundary of the Reserved Lot. At the time the easement was Lot as measuring seventy-five feet, in reality the monuments in the ground distance between the southeast and southwest monuments for the Reserved not until six months later, when the developer conveyed lot 18 to the Andrews the Reserved Lot. They argue that although the Trojano plan describes the See 17 C. Szypszak, New Hampshire Practice, Real Estate § 5.07, at 112

shows the seventy-five feet as beginning at a concrete monument that marks the boundary line between them was established by the Trojano Plan. It was Trojano plan conflicts with the actual monuments that separate their lot from developer still owned both the Reserved Lot and lot 18, and, thus, at that time, 1958, when the developer first conveyed the easement in the Ceriello deed, the legal import until the developer conveyed lot 18 in December 1958. In July The actual monuments relied upon by the respondents did not have any

shoreline as measuring seventy-five feet in width, more or less, and the plan plan. Both the recorded deed and the recorded plan explicitly identify the with others.” It identifies the Reserved Lot as that parcel shown on the Trojano measurement for the Reserved Lot identified in both the Ceriello deed and the The respondents contend that the seventy-five-foot shoreline

shore of Lake Winnipesaukee and the right to use the said shore, in common cross and recross the Reserved Lot, including the right to “gain access to the The easement language in the Ceriello deed is clear. It grants a right to

N.H. 313, 314 (2007). trial court’s interpretation of a deed de novo. See Tanguay v. Biathrow, 156 parties’ intent.” Id. (quotation omitted). As a question of law, we review the the deed are clear and unambiguous, those terms control how we construe the 158 N.H. __, __ (decided June 12, 2009) (quotation omitted). “If the terms of time of the deed in light of surrounding circumstances.” Soukup v. Brooks, shown on the Trojano plan.

p. 6 measured from the concrete monument of the Reserved Lot southeast corner the lake shore and to use seventy-five feet more or less of the lake shore as easement clause in their deed to cross and recross the Reserved Lot to access

correctly ruled that the petitioners have a continuing right and title under the

upon the recorded easement in the Ceriello deed. Accordingly, the trial court unintentionally deeded a portion of the Reserved Lot shoreline, has no bearing later conveyance of lot 18 to the Andrews, which intentionally or

the Reserved Lot shorefront. The developer’s subsequent intent involving the

parties to that transaction intended the easement to access seventy-five feet of

question of law, which we review a portion of the shoreline was subject to an encumbrance benefiting lot 20 is a recorded in the Ceriello deed gave notice to a bona fide purchaser of lot 18 that

easement language and was in accord with the Trojano plan. Therefore, the that time and that this measurement was specifically described in the shoreline. Equally plain is that such shorefront measured seventy-five feet at 6

land without notice of the encumbrance. The issue of whether the easement purchaser for value.

parties involved was to create an easement for access to the Reserved Lot

chain of title. Therefore, according to the respondents, they purchased their in real estate must record such interest in order to prevail over a bona fide Chagnon, 133 N.H. 11, 14 (1990). Therefore, a purchaser with a senior claim “New Hampshire is a ‘race-notice’ jurisdiction.” Amoskeag Bank v.

729 (2008) (on appeal, questions of law are subject to de novo review). burdening land purchased by petitioners); Greene v. McLeod, 156 N.H. 724, conducted de novo review of whether title search would have revealed easement the time the developer conveyed the easement right, the plain intent of the de novo. See Soukup, 158 N.H. at __ (court the developer intended to develop and sell to third parties.” We agree that at access to the lake through property other than the Reserved Lot, property that

against them as bona fide purchasers because it does not exist within their Next, the respondents argue that the easement cannot be effective

They maintain: “It is inconceivable that the developer intended to convey

Andrews.

between the two monuments depicting the shorefront of the Reserved Lot. indicates that the developer only intended to create easement rights extending The respondents emphasize that the language of the easement itself

foot easement followed the conveyance of a portion of that shoreline to the See Soukup, 158 N.H. at __; RSA 477:26 (2001). Therefore, the seventy-fiveto which they are appurtenant, even when absent from the face of the deed. (2003). Moreover, easements automatically pass with the transfer of property p. 7 Andrews deed contains a “meaning and intending” clause which states:

County Registry of Deeds. Banfield by deed dated September, 1956 and recorded in Carroll

deed, dated December 15, 1958, and recorded on December 20, 1958. The 7

has clear and marketable title to the property with the right to convey it. premises as conveyed to Swallow Point Corporation by Mark M.

portion of their shorefront. The chain of title directly leads to the Andrews

whether a properly executed and acknowledged mortgage actually exists).

search of public records ought to reveal whether the owner of the land in fact recorded. determine whether title to the desired parcel is encumbered in any way. Meaning and intending hereby to convey a portion of the be effective as against bona fide purchasers for value until so

the land desired by the prospective purchaser. that other deeds executed by a grantor in the chain of title did not encumber respondents’ lot 18 would have revealed the petitioners’ easement over a In this case, we conclude that a proper search of the chain of title for

obligate bona fide purchaser to investigate beyond the record to determine Amoskeag Bank, 133 N.H. at 15-16 (improperly recorded mortgage would

index from the date that firm root is established for out-conveyances to be sure tracing the property back to a firm root in title and also researching the grantor Allan Wolf, ed., 2009). A proper search of a property’s chain of title includes generally 14 R. Powell, Powell on Real Property § 82.01[4], at 82-14 (Michael

Because properly recorded instruments are deemed to give notice to will obtain an interest in a property free and clear of encumbrances.” of deeds for the county or counties in which the real estate lies Id. at 16. exempt from recording, shall be recorded at length in the registry The goal of a prospective bona fide purchaser is “to make sure he or she estate, except probate records and tax liens which are by law such interests.” Amoskeag Bank, 133 N.H. at 14. those who already have interests in land and those who would like to acquire of a conveyance of or encumbrance on real estate” and “serve[s] to protect both RSA 477:3-a (2001). The recording requirement “provide[s] notice to the public

order or other instrument which affects title to any interest in real Every deed or other conveyance of real estate and every court encumbered by a seventy-five-foot easement. p. 8 result in the conveyance of a portion of the Reserved Lot, which was

(5) following the shoreline boundary as described by the Andrews deed would

directly affects the location of the shoreline boundary between the properties;

other things, that the deed intended to convey a portion of land owned by the

the metes and bounds description in the Andrews deed; (4) such discrepancy and lot 18, as described in the recorded Trojano plan, does not comport with subdivision; (3) the measurement of the boundary between the Reserved Lot

Soukup deed included a meaning and intending clause which indicated, among

in the Andrews deed; (2) the Andrews lot is described as lot 18 in the

lot and had been expressly conveyed and recorded in the Lyman deed. The property conveyed by the trustee. The easement benefited the so-called Lyman easement was absent from their deed but identified in another recorded deed of

subdivision plan. (1) the Reserved Lot that is subject to the easement abuts the parcel described have included review of the recorded subdivision plan, revealing the following: in both the Andrews deed and the Ceriello deed, proper investigation would

owner. interests in lot 18, which was then owned by the developer as the common up to that point. Any of these prior out-conveyances could have affected called Soukup lot had notice of an easement burdening their land when the different purchasers. One issue we faced was whether the owners of the soto the conveyed parcel as Soukup, 158 N.H. at __. The lots were later conveyed to parcel owned by Swallow Point Corporation. Moreover, the Ceriello deed refers real estate trust subdivided property into several lots and recorded the This case is similar to one we recently decided. In Soukup, a trustee of a

Reserved Lot as shown on the Trojano plan. Armed with information provided

Carroll County Registry of Deeds . . . .

revealed all of the recorded out-conveyances of the subdivision by the developer

notice to a prospective purchaser of lot 18 that both lots came from a single

It also references the seventy-five-foot easement along the shoreline of the

D. Trojano, Surveyor, dated, October, 1956 and recorded in Lot #20 as shown on “Plan of Subdivision of Swallow Point” by H.

date of the conveyance of lot 18 to the Andrews (December 1958) would have (when the developer acquired the land as identified in the clause) through the Running the grantor index for Swallow Point Corporation from September 1956 intending” clause as the Andrews deed. This language gives at least inquiry Corporation recorded August 20, 1958, recites nearly the same “meaning and The out-conveyance of the Ceriello deed to lot 20 from Swallow Point

subdivided from land owned by Swallow Point Corporation as the grantor. This language plainly informs any prospective purchasers that the parcel was boundary between the defendants’ lot and the Reserved Lot.

p. 9 against the Swallow Point Association concerning the status of the and costs. The defendants also seek a declaratory judgment boundary by acquiescence, and [laches,] as well as attorney’s fees

alternative assert adverse possession, as well as slander of title,

assert deeded rights to the property at issue, and in the damages, attorney’s fees and costs. In response, the defendants ousting them from the Reserved Lot, and awarding the plaintiffs

Court (

Court (

it is being built encroaches on the Reserved Lot. The plaintiffs

the two pending actions.” In its subsequent order on the merits, the Superior

by and recorded in the Ceriello deed. Talbot, Susan Mansur and Margaret Richards as its directors. The Superior purchased their property with notice of the seventy-five-foot easement conveyed

new house on their lot. The plaintiffs assert that the residence as The defendants Mr. Muskopf and Ms. Allain are building a case, the respondents’ argument lacks merit. do not grant a possessory interest in land. Given the procedural history of this Houran, J.) described the parties’ claims as follows:

bench trial and “create one global resolution addressing the disputed issues in Brown, J.) consolidated the cases and ruled that it would conduct a

maintaining an action against Swallow Point Association and against Nancy property from a common grantor). Accordingly, we hold that the respondents David Muskopf and Mary Allain; the other with David Muskopf and Mary Allain Mansur, Susan Mansur and Clark Mansur maintaining an action against Initially, separate actions existed in this matter: one with Richard grantor in their chain of title. This holding is in accord with other jurisdictions.

silent as to the Trojano plan. petitioners had standing to pursue a claim of trespass because easement rights referenced the easement, whereas in the case before us the Andrews deed is Finally, the respondents argue that the trial court erred in ruling that the

Lyman deed that had initially created the easement. (defendant’s land bound by restrictions contained in recorded deeds conveying See, e.g., Guillette v. Daly Dry Wall, Inc., 325 N.E.2d 572, 574-75 (Mass. 1975)

interests affecting their land that have been previously conveyed by a common proposition that bona fide purchasers are deemed to have notice of recorded

For example, the Soukup deed identified the recorded subdivision plat which Some differences exist between the facts in Soukup and those before us.

revealed the trustee’s out-conveyances of the subdivided parcels, including the trustee. We held that proper investigation of the Soukup deed would have with the petitioners’ deeded easement rights was properly before the trial court. p. 10 issue of whether the respondents’ actions in building a new house interfered

reversible trial court error.

respondents’ lot. We conclude that the record before us demonstrates that the

and the respondents’ lot. Accordingly, we reject the respondents’ claim of

and the existing boundary demarcation between the Reserved Lot and the The court went on to decide the scope of the easement owned by the petitioners Muskopf and Ms. Allain onto the Reserved Lot is properly before this court.”

easement in relation to the location of the boundary between the Reserved Lot necessary party’s ability to fully litigate the scope of the petitioners’ deeded that some lapse occurred in the proceeding below that interfered with any

the boundary line dispute and “[t]he issue of the alleged trespasses by Mr. DALIANIS, DUGGAN and HICKS, JJ., concurred.

the complaining party must be shown.”). For example, they make no allegation a reviewing court to set aside an administrative decision; material prejudice to Meredith, 118 N.H. 616, 621 (1978) (“[N]ot all procedural irregularities require ruled that, by virtue of the Association’s party status in the consolidated case, to incur material prejudice. Cf. RSA 514:8, :9 (2007); Patenaude v. Town of Reserved Lot, they have standing to litigate to defend those rights.” It further in the petitioners’ claim being misnamed as an action in trespass caused them trespass interferes with the Mansurs’ right to use and their deeded rights to the Additionally, the respondents have failed to demonstrate that any error

are properly before the court” and ruled that “to the extent that the claimed Before deciding the merits, the trial court addressed whether “all claims