2008-750, JAMES BURKE & a. v. ARTHUR PIERRO & a.

The defendants, Arthur and Rose Pierro and Carmine and

brief and orally), for the defendants. Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the

the brief, and Mr. Eggleton orally), for the plaintiffs. Orr & Reno, P.A., of Concord (Emily G. Rice and Jeremy D. Eggleton on to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. JAMES BURKE & a.

No. 2008-750 editorial errors in order that corrections may be made before the opinion goes Carroll Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 interest in the beach lot to the DCSOA.

p. 2 conveyed the property to Florence Banfill, who immediately quitclaimed her (DCSOA) for the purpose of taking title to the beach lot. In 1993, the Town beachfront owners formed the Deer Cove Shorefront Owners’ Association

beach. However, rather than challenge the Town’s taking of Lot 49, the in 1993 and thereafter to the DCSOA. Lot 49 through tax deed in 1987; and the lot was properly conveyed to Banfill deceased husband obtained title to Lot 49 in 1955; the Town properly acquired

rights” language. his remaining property, the deed to one of which contained similar “equal “equal rights” language. In addition, Francis Lord conveyed two back lots from

ownership because they believed their deeds conveyed “equal rights” to use the

to participate in the lawsuit. In that action, the trial court found that: Banfill’s

one of those lots to Carmine and Maureen Pierro.

or road.” All deeds to the Deer Cove lots fronting the lake contain similar

the parcel to the Town. The beachfront lot owners disputed the Town’s to “owners unknown” for two years. In 1987, the Town’s tax collector conveyed beachfront lots. Unable to identify the owner of the lot, the Town taxed Lot 49 brought a quiet title action against the DCSOA in 1996. The Pierros declined

home. In 1980, they purchased two nearby back lots. In 1985, they conveyed

Main road, not obstructing the view of said Lake nor the passage on said shore shore and shore road, to the spring point for water, and to use the roads to the inherited his father’s remaining interest in Deer Cove in 1912. the property with “equal rights with others buying land of said grantor to the

beach running along Deer Cove Road as Lot 49, a parcel distinct from the Certain back lot owners disputed Banfill’s ownership of Lot 49, and

cottage, Arthur and Rose Pierro have used the beach in front of the Burkes’

originally conveyed by Francis Lord’s son, Francis S. Lord (Frank Lord), who Lord to William Cowan, the Burkes’ predecessor in title, specified conveyance of

In 1983, the Town of Ossipee created a tax map, which designated the

Since 1967, when they purchased one of the back lots containing a

among a number of “back lots,” located behind the beachfront lots, and land, including the Burkes’ parcel, fronting the lake. The deed from Francis not include the above-quoted “equal rights” language. The Pierros’ lots are Cove”). Between 1900 and 1909, Francis Lord conveyed thirteen parcels of The deeds to the Pierros’ lots, which are near, but not on, the lake, do property in Ossipee bounded on the east by Lake Ossipee (known as “Deer

Francis H. Lord (Francis Lord), who acquired title in 1871 to 120 acres of Cove Road bordering the lake. The Burkes’ chain of title originates with obtained a prescriptive right to use the beach.

p. 3 promisee intended to benefit a particular lot.

This appeal followed. 3

addition to their implied servitude arguments, the Pierros assert that they servitude should be implied from prior use and based on necessity. Finally, in restriction on it.” for the benefit of all beachfront and back lot owners. They also argue that a

benefited land,” which rests on a determination that the original promisor and

using the beach. The Pierros filed a motion to reconsider, which was denied.

Arnold v. Chandler, 121 N.H. 130, 134 (1981) (quotation

development . . . binds an owner who acquired the land with notice of a created a common scheme of development with access to a common beach lot 359 (1975). An equitable servitude may arise when a “general scheme of

servitude is a property interest in a burdened land, appurtenant to the servitude implied from a common scheme of development. “[A]n equitable We first turn to the Pierros’ assertion of entitlement to an equitable

that the Pierros had trespassed upon the Burkes’ land and enjoined them from they were entitled to a prescriptive easement. Accordingly, the trial court ruled the Burkes’ home. The court also found that the Pierros failed to prove that

beach for recreational purposes. They argue that Francis Lord and Frank Lord beach lot is subject to an implied servitude that would allow them use of the unsustainable exercise of discretion. The Pierros assert several theories in support of their claim that the

Id. historical fact, where those findings are supported by evidence in the record.” Trust, 155 N.H. at 33. “We accord deference to the trial court’s findings of “We review a trial court’s application of law to facts de novo.” Blagbrough unreasonable to the prejudice of the party’s case, it will not be disturbed. Id. Unless a party establishes that such a ruling was clearly untenable or on the Burke property that permitted the Pierros to use the beach in front of discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296 (2001). whether “the record establishes an objective basis sufficient to sustain the Forest Prods., 155 N.H. 29, 46 (2007). Under this standard, we review only

We will uphold a trial court’s equitable order unless it constitutes an

of the section of beach in front of his home. a result, Donald Meader, the Burkes’ predecessor in title, obtained ownership

a three-day bench trial, the trial court found there was no equitable servitude property to the Burkes, who assumed Meader’s position in this litigation. After enjoin the Pierros from entering his property. He subsequently sold his In 2002, Meader commenced this action for trespass, and to permanently

beachfront property owner the beach area in front of the owner’s property. As In 1998, the DCSOA “surveyed” Lot 49 and quitclaimed to each who bought land from him. p. 4 Lord intended to create a servitude to benefit any lot owners other than those

the record compel a finding that, absent such language in the deeds, Francis

the beachfront lot owners and one back lot owner. Nor does the evidence in benefit anyone other than those to whom he conveyed property, which includes to have the same rights as the beachfront lots. shore road.” Nothing in this language indicates that Francis Lord intended to

deed is insufficient to establish that Francis Lord intended all of the back lots owners “equal rights with others buying land of said grantor to the shore and

as was contained in the beachfront lot deeds. The language in one back lot only to “others buying land” from him. The deeds gave these specific lot that in the deed to one such lot, he included the same “equal rights” language

supported by the record. The language in the deeds from Francis Lord referred servitude for the benefit of the back lots, the Pierros rely, in part, upon the fact To support their assertion that Francis p. 4 Lord intended to create a not those whose lots were conveyed by his son, Frank Lord. We agree. benefits only the beachfront owners who purchased land from Francis Lord, lot owners. The trial court therefore concluded that the appurtenant easement

the trial court.” of the terms of a deed is based on the parties’ intentions as properly found by interpretation of deeds is ultimately for this court; however, our determination

for the sole benefit of beachfront lot owners who purchased from him is amply The trial court’s finding that Francis p. 4 Lord intended to create a servitude

circumstances.” Id. at 536 (quotation omitted). a separate development scheme that did not include beach access for the back conveyance and gather their intention in light of the surrounding himself as nearly as possible in the position of the parties at the time of the (1 978). “In construing the language of a deed, the finder of facts must place

Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536

circumstances.” We begin our analysis by examining the language of the deeds. “The

development.”

common beach lot. It found, rather, that Frank Lord’s conveyances constituted did not continue a common scheme establishing a lake community with a Here, the trial court found that Frank Lord, as successor to Francis Lord,

Id. at 78.

language of the instruments, the conduct of the parties, and the surrounding intent to create a general scheme of development can be “ascertained from the

Bouley v. City of Nashua, 106 N.H. 74, 77-78 (1964). Such

plan, reciprocal servitudes are thereby created on all the lots in the to be imposed on each lot for the benefit of all other lots included in the general of lots therefrom uniform restrictions intended by him and by the purchasers or subdivision of a certain tract or parcel of land and has inserted in his deeds omitted). “If an original owner has adopted a general scheme for development p. 5 5

severance by Francis Lord. property that became the subject back lots included beach rights prior to back lots were subject to the same equitable servitude as the beachfront lots.

necessary to support its decree.” the absence of specific findings, a court is presumed to have made all findings

Dev. Co. terminate the right to continue the prior use., p. 5 530 So. 2d 1325, 1331 (Miss. 1988) (no easement based on prior use

here because the record is devoid of any evidence demonstrating that the Lord or by those to whom he conveyed lots to demonstrate any intent that the court reasonably could have found that the prior use theory is inapplicable Son, Inc., 122 N.H. 7 p. 5 57, 761 (1982) (quotation omitted). We conclude that the

findings regarding the prior use theory, it necessarily rejected the claim. “[I]n Id. § 2.12, at 1 p. 5 59 (emphasis added). Although the trial court made no specific theories of prior use and necessity.

reasonable grounds to expect that the conveyance would not

benefit of another, implies that a servitude was created to continue Pierros fail to point to any surrounding circumstances or any conduct by Frank land into two or more parts, a use was made of one part for the circumstances that prior to a conveyance severing the ownership of Unless a contrary intent is expressed or implied, the

benefited property before two or more parcels are severed. (Servitudes) §§ 2.12, 2.1 p. 5 5 (2000). Implication by prior use concerns the use of

The Pierros next argue that they obtained an implied servitude under

referenced plan, plan became essential part of each conveyance). Further, the McCleary v. Lourie, 80 N.H. 389, 392 (1922) (where each deed specifically arose because each deed in chain of title referenced community plan); Regan v. Hovanian, 11 p. 5 5 N.H. 40, 42-43 (1975) (holding that implied easement Lord incorporate by reference his father’s common scheme of development. See deeds themselves contain no such language. Nor do the deeds from Frank his intent to expand his father’s scheme for the benefit of the back lots, the Although the Pierros argue that the deeds from Frank Lord demonstrate

same restrictions). eighteen lots still owned by the real estate developer were conveyed with the 100 lots were laid out on a series of recorded plans and all but the fifteen or Fletcher, 10 p. 6 6 N.H. 464, 466-67 (196 p. 5 5) (implying an equitable servitude where thereby to have the restrictions apply to his remaining land.”); cf. Varney v. which he is selling does not necessarily lead to the conclusion that he intended (“[T]he mere fact that a grantor imposes restrictions in part of a tract of land Watts, 98 N.H. 428, 433 (1954); Carroll v. Schechter, 112 N.H. 216, 219 (1972) normally be made of that type of property.

a servitude. court found that the Pierros failed to demonstrate necessity sufficient to imply prescriptive period; and Carmine Pierro’s seasonal use of the property also trial court did not make specific findings on this issue, we presume that the

normally useable parts of the property for uses that would finding. Reasonable enjoyment of the property means use of all the without “disproportionate effort or expense,” amply supports this implied rights are necessary within the meaning of this section.

subsequent quitclaim conveyance from the Town to the DCSOA tolled the were “novelty easements” and were not easements by necessity). Although the conclusions that: the Pierros’ use was permissive; the tax deed and lacked a prescriptive right to use the beach. They challenge the trial court’s The Pierros finally argue that the trial court erred in finding that they crossing appellants’ land),

residential use), which lacks any evidence of the Pierros’ inability to use or enjoy their lots otherwise be used without disproportionate effort or expense, the

See Demers Nursing Home, Inc., 122 N.H. at 7 p. 6 61. The record, shown by the Pierros.

S.W.2d 19 p. 6 6, 209 (Tex. 1962) (easements for pleasure and recreation over ranch installation of television antenna) and Drye v. Eagle Rock Ranch, Inc., 364 Ass’n, 750 P.2d 813, 819-20 (Alaska 1988) (no easement by necessity found for necessary to reasonable enjoyment of the land in vicinity of the Beach Lot.” with O’Buck v. Cottonwood Village Condominium (easement by necessity implied where property could not be reached without

and Carr v. Barnett, 580 S.W.2d 237, 240 (Ky. Ct. App. 1979)

includes right to install utilities because electricity is necessary for modern Less, 558 F. Supp. 1379, 1381-82 (D. Mass. 1983) (easement by necessity make effective use of the property. If the property cannot

The degree of necessity required for an implied servitude exceeds that

Restatement (Third) of Property (Servitudes) the property., supra § 2.15 comment d at 207.

find an equitable servitude would “deprive the land conveyed . . . of rights

of the property, but include those which are reasonably required to “Necessary” rights are not limited to those essential to enjoyment

doctrine applies where the rights are necessary to the reasonable enjoyment of See Restatement (Third) of Property (Servitudes), supra § 2.15. The necessity

The Pierros also assert the necessity doctrine claiming that the failure to

ownership). where evidence did not establish that use existed at time of severance of parcel deed.” p. 7 validity of a tax sale . . . after 10 years from the date of record of the collector’s states: “No action, suit or other proceeding shall be brought to contest the

absolute, created by an independent grant from the sovereign, and

jurisdictions, we now hold that a municipality’s

them, but a new and paramount title to the land in fee simple who had been assessed for the taxes and had neglected to pay

prescriptive period. Consistent with established authority in this and other determine the effect or scope of such interruption on the twenty-year ownership interrupts the running of the statute of limitations, we did not

uninterrupted beach usage, the Pierros challenge the validity of the tax deed. tax sale of the beach lot was irrelevant to their asserted twenty years of the beach from 1967 through 2002. In arguing that the Town’s ownership and to a tax sale.

kind, jurisdictional or otherwise”). sale for nonpayment of taxes is not merely the title of the person [W]here the proceeding is strictly in rem, the title conveyed by a adverse claim was being made to it.” The majority view is that: adverse possession case.” Although we decided that a municipality’s Estates or Different Interests, 75 A.L.R. 416, 417 (1931) (quotations omitted). Acquired by Purchaser at Tax Sale of Property Which is Subject to Successive quantum of estate acquired by the purchaser.” Annotation, Quantum of Estate Courts are divided regarding “the effect of a tax sale and the nature or in

unknown owner of the lot failed to pay taxes. The Pierros assert that they used foreclosure proceedings extinguishes the prescriptive period accumulated prior

uninterrupted” use of the land so “as to give notice to the [owner] that an

public use, thereby preventing the running of the statute of limitations in an proceedings, without more, holds the property in a governmental capacity for held that “a municipality holding title to land through tax foreclosure Kellison v. McIsaac, 131 N.H. 675, 681 (1989), applies here. In Kellison, we Because the Pierros’ challenge to the tax deed’s validity fails, our decision

title to the beach lot from 1985 to 1993, pursuant to RSA chapter 80, after the

a challenge to a tax deed for lack of notice years after expiration of the ten-year See Hudson v. Gate City Dev. Corp., 139 N.H. 606, 608 (1995) (rejecting or their predecessors have achieved twenty years of “adverse, continuous, and

530, 536 (2008) (quotation omitted). The trial court found that the Town held

To obtain title by adverse possession, the claimants must show that they

the Pierros did not have a prescriptive easement. tolled the prescriptive period. We uphold the trial court’s determination that p. 8 8

that the tax title derived from the lien “breaks up all previous titles.” lien is superior to the mortgage because it attaches to the land itself, we noted “because previous encumbrances are thereby divested.” In finding that the tax this interest matures into a tax title upon the termination of the taxpayer’s

the interests of adverse possessors, the principles are applicable here. In

lien procedure.”

delinquent.” survive the issuance of tax lien deeds after expiration of the right of redemption interest in the property” upon execution of the tax lien, RSA p. 8 80:61 (2003), and tax lien deeds. The lienholder takes a “100 percent common and undivided defining the scope of title interests acquired through a tax sale do not involve statutory scheme set forth in RSA chapter 80, which authorizes the issuance of Our conclusions in Spurgias and First NH Bank comport with the collector’s deed terminated the taxpayer’s right of redemption.

Id.

of the land charged for unpaid taxes is the ultimate product of the alternate tax Bank, 13 p. 8 8 N.H. at 324. “[A] new and independent title to one hundred percent

purchaser acquires only the apparent interest, whatever it is, of the tax (1994), we held that mortgages recorded on a taxpayer’s property do not Similarly, in First NH Bank v. Town of Windham, 13 p. 8 8 N.H. 319, 324 “devested of all other liens thereon or titles thereto”). Although our cases

proceeds resulting from the town’s resale ended when the issuance of the fees. Id. at 276. We concluded that any right of the taxpayer to the surplus and paramount title to the land in fee simple absolute.” the sale of the property at a public auction, less unpaid taxes, charges, and collector’s deed, sought to recover the surplus proceeds the town received from property. The taxpayer in Spurgias, divested of his property by a tax sale and a issuance of a collector’s deed terminates the previous owner’s interest in the Spurgias v. Morrissette, 109 N.H. 275, 27 p. 8 8 (1969), we concluded that the assessed. According to this view, . . . the title is a derivative one, and the

40 p. 8 8, 418 (1880) (one who receives a collector’s deed acquires title to the land the statute, but an estate in fee-simple.”); the state, and not merely the sum of old titles. see also Eastman v. Thayer, 60 N.H. Messer but to destroy them. It is a new and perfect title emanating from, 17 N.H. 420, 428 (1845) (“No title can pass by a collector’s deed under tax title is a breaking up of all titles, and operates not to support Id.; see Smith v. New Hampshire case law supports the view that a tax sale creates a “new

Id.

purchaser at the tax sale gets no better title than was held by the person Id. (quotation omitted). An opposing in personam view posits “that the

upon the title of the previous owner. According to this view, the free from all equities and encumbrances existing prior to the sale showing twenty years of uninterrupted use against the new title created by the p. 9 years after the tax sale. Because the Pierros failed to meet their burden of 19 p. 8 85 to 1993. At most, the Pierros demonstrated continuous use for only ten

independent and paramount title to the property. conveyance to the Town by tax deed in 1985 and by the Town’s ownership from of all previous titles. By a tax deed one acquires a new, title; does not in any way connect itself with it. It is a breaking up

support to the title claimed thereafter.”

until 2003. However, the twenty-year prescriptive period was interrupted by from its very nature, has nothing to do with the previous chain of

title.” the majority view that

that “adverse possession prior to the creation of a tax title lends not the least

The Pierros allege that they established their prescriptive rights from 1967 the running of the statutory period in which adverse possession could ripen. former liens and charges on such lands are removed. A tax title, lands so conveyed. The former title is wiped out and a fortiori the creation of a new title through a tax sale terminates possession, the period of twenty years must run from the creation of the new In light of our own precedent and that of other jurisdictions, we adopt his tax deed in conformity with law, he initiated a new title to the

196 (Ark. 1957); Johnson v. Burgeson, 170 P.2d 311, 312-13 (Wash. 1946). adverse possession was, at one time, running, no longer exists.” Id. (quotations and citations omitted); see Mills v. Deniston, 299 S.W.2d 195,

that title by adverse possession “vanish[ed]” upon issuance of a tax title and

for the inchoate adverse possession to ripen into actual title by adverse erasing all former interests in the land. When the treasurer issued The issuance of a valid treasurer’s deed created a virgin title

foreclosure created a new title. Therefore, “[t]he title against which the . . . (Colo. 1957) (quotation omitted).

grants of title by the sovereign entity. For example, in The Supreme Court of Colorado employed a similar analysis in holding

Id.

derived from valid and proper tax sales and foreclosure proceedings, in order

not count toward the twenty-year statutory period because the tax sale and years of adverse possession prior to a tax sale and foreclosure proceeding did A.2d 206, 214 (Md. 2001), the Maryland Court of Appeals held that nineteen

consistent with the majority view that properly acquired tax titles are new Our position regarding the status of tax titles arising out of tax sales is

also First NH Bank, 138 N.H. at 324. right of redemption and the execution of the tax deed. RSA 80:76 (2003); see p. 10 10

DALIANIS, DUGGAN and HICKS, JJ., concurred.

findings. tax deed, we need not address their other challenges to the trial court’s