2008-342, DAVID B. MASTROIANNI & a. v. JOSEPH WERCINSKI & a.

The petitioners, David and Patricia Mastroianni, appeal an

respondents. Daniel J. Kalinski, of Manchester, on the brief and orally, for the

on the brief, and Mr. Marr orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Hamblett & Kerrigan, PA, of Nashua (J. Daniel Marr and Andrew J. Piela

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-342 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 parcel.”

p. 2 meet their burden in making a claim for adverse possession of the disputed

line.” Thus, it found “as a matter of law [that the Mastroiannis] ha[d] failed to is being made. adversity can exist when by assumption the parties [mislocated] the property belief as to where the property line is located.” The court also ruled that “no 2

legal action.” the fee holder can prevent or for which he can obtain damages by means of

use of the land claimed so as to give notice to the owner that an adverse claim

because “the adjoining owners of the property operate[d] under the mistaken right exists.”

the location of the property line. We agree. the requisite adversity to acquire title by adverse possession. We disagree. trial court ruled as a matter of law that the parties’ mistaken belief precluded element of adversity is normally a question of fact, Shortt, 139 N.H. at 242, the

Bonardi, 146 N.H. at 642 (quotation omitted). Although the

wall eastward and removed the flower beds in an effort to reclaim the land. 138 N.H. 561, 572 (1994). “Use is ‘trespassory’ if it consists of a wrong which Bonardi v. Kazmirchuk, 146 N.H. 640, 642 (2001); Flanagan v. Prudhomme, (quotation and brackets omitted). Adverse use is trespassory in nature. use has been defined as a use without license or permission . . . .” must show twenty years of adverse, continuous, exclusive and uninterrupted Id.

Town of Warren v. Shortt, 139 N.H. 240, 244 (1994). “Adverse trial court ruled that the Mastroiannis had failed to show notorious possession “A use of land is adverse when made under a claim of right where no exclusive and continuous for twenty years. Notwithstanding this finding, the

concluded that use of the .02 acres by the Mastroiannis’ predecessor was reversible error by treating as dispositive the parties’ subjective beliefs about I. Adversity

supported by the record, Blagbrough, 155 N.H. at 33. Osman v. Gagnon, 152 N.H. 359, 361 (2005), but defer to its findings of fact if N.H. 29, 33 (2007). We review the trial court’s legal rulings de novo, see, e.g., discovering the actual boundary in 2006, the Wercinskis relocated the stone Blagbrough Family Realty Trust v. A & T Forest Prods., 155

To acquire title to real property by adverse possession, the possessor

(1997), asserting title by adverse possession. After a bench trial, the court On appeal, the Mastroiannis argue that the trial court committed

The contested land is a triangular area of approximately .02 acres. Upon mowed grass, planted flowers and otherwise treated the property as their own. east of the stone wall. The Mastroiannis and their predecessor in title had

The Mastroiannis petitioned to quiet title pursuant to RSA 498:5-a

marked the boundary between the two properties. The boundary was actually believed that a preexisting stone wall along a portion of the Wercinskis’ parcel unless the owner has been put on guard sufficiently to enable him or her to

which “rests on the public policy that existing rights in land should not be lost

informed, would not have entered on the land.” of right.” Powell,

an error of law, we reverse and remand for further consideration in light of our recognized a certain boundary as being the true one and have occupied their possession. The above analysis applies with equal force to the element of notoriety,

matters not, that the possessor was mistaken, and had he been better subjective beliefs “as necessarily preventing the existence of the required claim II. Notoriety

v. Johnson, 2 N.H. p. 3 31, 35 (1819). same place, the [adverse possessor] all the time claiming to own to the fence.” Newmarket Manufacturing Co. v. Pendergast, 24 N.H. 54, 63 (1851); Atherton question of fact); see Ucietowski v. Novak, 102 N.H. 140, 145 (1959);

Avery v. Rancloes, 12 p. 3 3 N.H. 233, 238 (1983) (element of adversity is a a mistake.

(1989). Because the trial court’s ruling on the element of adversity rested upon what the landowner-claimant might have claimed in the absence of establish a boundary where the parties for twenty years or more have acquires the neighbor’s title up to that line, and it is immaterial Hewes, 121 N.H. at p. 3 34; see Kellison v. McIsaac, 131 N.H. 675, 680 expressly repudiating subjective inquiries when testing the elements of adverse

supra at 91-27. This view does not accord with our cases

previously recognized that in determining whether use was adverse, “[i]t The trial court espoused the minority rule, which regards mistaken,

possession occurs “[where a] fence had been maintained for twenty years in the Finally, Knight v. Coleman, 19 N.H. 118, 119-20 (1848), states that adverse

p. 3 34 (1981) (quotation omitted). It is well established that “[a]cquiescence may that he or she is holding to the true line, the landowner-claimant

Support for the majority rule lies within our jurisprudence. We have

Powell, supra at 91-25 to -26. neighbor’s property begins.” 16 R. Powell,

and continuously for the statutory period, mistakenly believing disputed strip of land under a claim of right openly, exclusively, Thus, where a landowner-claimant holds actual possession of a

Due to Ignorance or Mistake as to Boundaries, 97 A.L.R. 14, 18 (19 p. 3 35). at 91-25 (Michael Allan Wolf ed., 2008); see Annotation, Adverse Possession

defeated by an initial mistake as to where the claimant’s property ends and the “The widely accepted view is that an adverse claim, otherwise valid, is not would have been revealed through due inquiry. p. 4 absence of actual notice, where the possession is of such character that it

met. actual notice and, absent some form of concealment, the element of notoriety is

possession notorious where the record owner has actual notice or, in the

of the possession of the disputed property. It follows then that this is a case of

notoriety. We conclude that any such ruling is an error of law. We have found BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

concealment, we reject the Wercinskis’ argument. in be necessary” to satisfy the requirement of notoriety. Relying upon our holding See Dame, 86 N.H. at 472. Because there was no evidence of something more than occasional mowing of a lawn or planting of flowers would

The trial court found that the Wercinskis’ predecessor in title was aware

Pendergast, 24 N.H. at 63. court’s order can be understood as an alternative ruling on the element of dealt only with constructive notice. See Blagbrough, 155 N.H. at 33; see also Id. at 91-17; see Pease, 78 N.H. at 204. Blagbrough is inapposite because it of the disputed property, the open and notorious requirement is normally met.” § 91.04[2], at 91-17 to –18. Thus, “[w]hen a possessor is actually in possession actually knows of the possession, there is actual notice.” Powell, supra N.H. 201, 204 (1916); Powell, supra § 91.04[1], at 91-16 to –17. “If the owner 468, 471-72 (1934); Weeks v. Morin, 85 N.H. 9, 12 (1931); Pease v. Whitney, 78 prior to ruling in their favor, the trial court noted that “case law suggests that See Dame v. Fernald, 86 N.H.

notoriety as a matter of law.

We will assume without deciding that the relevant language from the trial

Mastroiannis’ predecessor do not amount to notorious possession. Blagbrough, the Wercinskis argue that the acts undertaken by the

The Wercinskis, however, argue an alternative basis to affirm because,

subjective beliefs about the location of a boundary preclude the element of dispute this and cite no decisional support for the trial court’s ruling that the possession. Cf. Kellison, 131 N.H. at 680. Indeed, the Wercinskis do not not impair in any way the adversely possessed party’s ability to gain notice of § 91.04[1], at 91-16. Subjective beliefs regarding the location of boundaries do take preventive action with reasonable promptness.” Powell, supra