2011-227, Michael O’Hearne & a. v. James McClammer, Jr.; James U. McClammer, Jr., Trustee of the Profit Sharing Plan of Connecticut Valley Environmental Services, Inc. v. Michael W. O’Hearne & a.

No. 2011-227 Sullivan

Plan of Connecticut Valley Environmental Services, Inc.

, of Hanover (Bradford T. Atwood

Buckley and Zopf

James U. McClammer, Jr., individually and as Trustee of the Profit Sharing page is: http://www.courts.state.nh.us/supreme. Clauson & Atwood on the brief), for 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 for Michael W. O’Hearne and Marie E. O’Hearne.

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 referenced the river in describing the property, an 1882 deed described the p. 2 Although early deeds within the O’Hearne chain of title also appear to have

1980s. Department of Transportation (DOT) when it replaced the bridge in the early bridge referenced in the 1872 deed, was removed by the New Hampshire 2 deed as “ten (10) feet eight (8) inches from the southwesterly end of” the same monuments currently exist, while the easternmost monument, described in the river’s flood plain” along the northern portion of the parcel. Two of the were located south of the river, at what McClammer described as “the edge of the courses and distances between artificial monuments. Three of the monuments in describing the boundaries, and for the first time described the parcel by In 1929, a deed to the McClammer parcel did not reference the river at all

northern bound as running “Easterly on said river and land A 1907 deed within the McClammer chain, however, described the parcel’s

beginning . . . . bank of said river, thence easterly on said river to the place of P & M Howard thence northerly on land of said Howard to the south River and running southwesterly on the highway . . . to land of said beginning near the south end of the South Bridge on Little Sugar

contained the following legal description of the McClammer lot: in describing the northern bound of his parcel. For instance, an 1872 deed (Emphasis added.) “[L]and of one Woodward” included the O’Hearne lot. Prior to 1929, deeds within McClammer’ s chain of title referenced the river of one Woodward.”

lot was included in the land retained by the grantor of the 1790 deed. O’Hearne lot is, ultimately, derived from this conveyance, while the McClammer quarters of an acre of land that will best accommodate a Mill Spot.” Title to the land being and lying on the North side of Little Sugar River . . . [e]xcept three the larger parcel was subdivided by a deed conveying “all that part or parcel of the river, which generally runs in an east-west direction at that point. In 1790, the lot to the north. Historically, both lots were part of a larger parcel bisected by North Charlestown; McClammer owns the southerly lot, while the O’Hearnes own The parties own adjoining lots in the vicinity of the Little Sugar River in

petitions to quiet title and for injunctive relief. We affirm. favor of Michael W. O’Hearne and Marie E. O’Hearne on the parties’ cross- Superior Court (Wageling, J.), following a bench trial on the merits, ruling in the Connecticut Valley Environmental Services, Inc., appeals an order of the HICKS, J. James U. McClammer, Jr., Trustee of the Profit Sharing Plan of recorded deeds, which support [their] position that the boundary is defined by p. 3 that the O’Hearnes asserted ownership pursuant to “a long-standing sequence of important factors speak in [the] O’Hearne[s’] favor.” First, the trial court noted With respect to adverse possession, the trial court found that “two very

O’Hearnes had acquired title to the disputed areas through adverse possession. McClammer’s predecessors. Alternatively, the trial court ruled that the the O’Hearne lot in the 1882 deed, or by the description in the 1929 deed to which the court determined had been triggered either by the legal description of barred by the twenty-year statute of limitations set forth in RSA 508:2 (2010), interpret the parties’ deeds, but instead ruled that McClammer’s claims were ruled in favor of the O’Hearnes. In its narrative order, the trial court declined to

The trial court consolidated the matters, and following a trial on the merits,

3 doctrine of boundary by acquiescence. dispute, but that they had also acquired title by adverse possession and the petition, the O’Hearnes claimed not only that they had record title to the areas in 1790 deed was located. In their answers to McClammer’s petition and amended land to the north of the river where, he claimed, the “mill spot” referenced in the had actual notice that the disputed property was possessed by the O’Hearnes. water mark on the northern bank of the river, and included a 0.15 acre piece of since 1936. Second, the trial court found that McClammer’s predecessor-in-title McClammer amended his petition, asserting that his title extended to the high trial court, had described the parties’ boundary with reference to the monuments water mark on “the south side of [its] main northerly channel.” Thereafter, markers.” Both the O’Hearne and McClammer chains of title, according to the that his title ran either to the “so-called thread or center of the river,” or to its low monuments. McClammer, in turn, filed his own petition to quiet title, claiming their land, asserting that the parties’ common boundary was established by the The O’Hearnes filed a petition to en join McClammer from trespassing on

land lying to the north of the monuments and to the south of the river. present dispute arose when McClammer began removing trees from the strip of McClammer’s deed was identical to the description in the 1929 deed. The 1957, of the grantees of the 1929 deed. The property description in Hinchliffe, who had acquired her title upon the intestate deaths, in 1944 and McClammer acquired title to his lo t in 1999 from the estate of Louise

highway (easterly),” also without mentioning the river. parcel as running “on land now or formerly of [McClammer’s predecessor] to the the deeds within the O’Hearne chain describe the southern boundary of the predecessors] to the Highway” without mentioning the river at all. Since 1936, southern boundary as running “Easterly on . . . land [owned by McClammer’s p. 4 508:2, and not allowing him a rehearing to submit evidence rebutting the ruling; erred by: (1) ruling that his petition to quiet title was time-barred under RSA This appeal followed. On appeal, McClammer argues that the trial court

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respect to [the O’Hearnes’] ownership of the disputed strip.” claim was time-barred, he “lack[ed] standing to challenge [its] findings with limitations by pleading adverse possession, and that, because McClammer’s motion, concluding that the O’Hearnes had sufficiently raised the statute of inconsistent with a finding of adverse possession. The trial court denied the improperly construed the relevant deeds, and that it ignored other evidence found that the O’Hearne chain of title referenced the monuments, that it challenged the trial court’s rulings on the merits, arguing that it had erroneously improperly raised the statute of limitations sua sponte. Additionally, he McClammer moved for reco nsideration, arguing that the trial court had

continuous use and possession of the land in question.” acquiescence of the claimed boundary by Louise Hinchliffe and by their O’Hearnes had established title “by adverse possession both due to the the parties’ property is the line claimed by the [O’Hearnes]”; and (2) the acquiesced, for a period in excess of 20 years, that the boundary line separating accordingly. The trial court then found and ruled that: (1) “Hinchliffe clearly the parties recognize the boundary as true for twenty years, and occupy their lots by acquiescence and prevail over contrary descriptions in deeds to the extent that 108 N.H. 20, 23 (1967), the trial court ruled that a boundary may be established Mastroianni v. Wercinski, 158 N.H. 380, 383 (2009), and Rautenberg v. Munnis, detailed requests for findings of fact and rulings of law. Relying upon In addition to its narra tive order, the trial court ruled on the parties’

O’Hearnes in fact used and improved it over a period exceeding twenty years. court found no evidence that McClammer or Hinchliffe ever used it, and that the markers, and did so for over 20 years.” As to the so-called “mill spot,” the trial predecessor in interest abided by the exclusive boundary, as defined by the These facts, according to the trial court, established that “McClammer’s down a tree in the disputed area that was overhanging Hinchliffe’s property. maintained “No Trespassing” signs on the portion of land under dispute, and cut concerning the boundary; and (3) Michael had, at Hinchliffe’s request, replacement of the bridge that was consistent with the O’Hearnes’ claims boundary”; (2) Hinchliffe wrote a letter to the DOT in 1983 in connection with its O’Hearne[s’] assertion that she did not consider the thread of the river to be the Michael O’Hearne (Michael), and otherwise “acted in a way consistent with [the] Hinchliffe, repeatedly walked the boundary claimed by the O’Hearnes with Specifically, the trial court noted: (1) McClammer’s predecessor, Louise p. 5 5

prevail even over the description in the deeds.” Rautenberg, 108 N.H. at 23. To at 23; see Mastroianni, 1 p. 5 58 N.H. at 383. “The bound thus acquiesced in will one and have occupied their respective lots accordingly.” Rautenberg, 108 N.H. for twenty years or more have recognized a certain boundary as being the true By contrast, “[a]cquies cence may establish a boundary where the parties

Forest Prods., 1 p. 5 55 N.H. 29, 34 (2007); see Mastroianni, 158 N.H. at 383-84. the owner was notified of [the claim].” Blagbrough Family Realty Trust v. A & T adverse title; the use must be sufficiently notorious to justify a presumption that occasional, trespassory maintenance [of another’s property] in order to perfect the adverse possession of his or her land, “[t]he law requires more than 508:2 or ruling that McClammer lacked standing to challenge its findings. See Mastroianni, 158 N.H. at 382. Absent actual notice by the dispossessed party of Accordingly, we need not address whether the trial court erred by applying RSA claimed so as to give notice to the owner that an adverse claim is being made.” years of adverse, continuous, exclusive and uninterrupted use of the land title to real property by adverse possession, the possessor must show twenty the theories of adverse possession and boundary by acquiescence. “To acquire acquiescence of the claimed boundary by Louise Hinchliffe,” appear to conflate that the O’Hearnes acquired title “by adverse possession . . . due to the We also note that the parties in thei r briefs, and the trial court in ruling

does not affect outcome, or where we can determine that no injury occurred). Kessler v. Gleich, 1 p. 5 56 N.H. 488, 494 (2007) (trial court will be upheld where error

court’s sua favor of the O’Hearnes. While McClammer claims he “was prejudiced by the trial the O’Hearnes acquired title through Hinchliffe’s acquiescence in the boundary. possession, and boundary by acquiescence as alternative grounds for ruling in acquiescence, we conclude that the evidence supports the trial court’s ruling that At the outset, we note that the trial court relied upon RSA p. 5 508:2, adverse lacked standing to challenge its findings on adverse possession and boundary by by applying RSA 508:2, and by ruling, on reconsideration, that McClammer adverse possession or boundary by acquiescence.” Even if the trial court erred that the O’Hearnes had “fail[ed] to satisfy the legal elements . . . [of] either and that McClammer himself, in his request for rulings of law, sought a ruling pleadings, that the parties presented evidence at trial relative to those theories, the O’Hearnes raised adverse possession and boundary by acquiescence in their opportunity to present evidence on adverse possession,” the record reflects that

sponte ruling [that he was time-barred] as he was not provided an

and (4) not finding that he had title to the “thread,” or center, of the river. claims is ambiguous, to support its finding as to the location of the boundary; possession or acquiescence; (3) relying upon the 1929 deed, which McClammer (2) finding that the O’Hearnes acquired title to the property in dispute by adverse p. 6 6

“boundary” markers. Based upon this testimony, the trial court supportably According to Michael, Hinchliffe herself told him that the monuments were multiple occasions throughout the years and identified the boundary markers. from 1957 until her death in 1997, walked the boundary line together on further testified that he and Hinchliffe, who had sole title to the McClammer lot the river and point out the boundary and boundary markers to him. Michael father and predecessor-in-title, Walter O’Hearne (Walter), would take him across O’Hearne lot for sixty-eight years at the time of trial, testified that as a child, his The testimony at trial su pports this ruling. Michael, who had lived on the

record.” Mastroianni, 158 N.H. at 382 (citation omitted). court’s legal rulings de novo, but defer to its findings of fact if supported by the satisfied the requirements of boundary by acquiescence. “We review the trial dispute through Hinchliffe’s acquiescence, as a ruling that the O’Hearnes claimed by the O’Hearnes, and that the O’Hearnes established title to the land in that Hinchliffe “acquiesced, for a period in excess of 20 years,” in the boundary lots, for twenty years. In context, we construe the trial court’s determinations mutual recognition of the boundary as correct, and consistent occupation of their the trial court correctly noted that a boundary may be established by the parties’ delineated the doctrines of adverse possession and boundary by acquiescence, In this case, although the parties and the trial court may not have carefully

more than twenty years,” Richardson v. Chickering, 41 N.H. 380, 384 (18 p. 6 60). in opposition to one which has been steadily adhered to, upon both sides, for policy, [that preclude a party] from setting up or insisting upon a boundary line explained that boundary by acquiescence is grounded “upon principles of public the recovery of land,” Hewes v. Bruno, 121 N.H. 32, 33 (1981), we long ago While “adverse possession developed from the statutes of limitation on actions for doctrines of estoppel, adverse possession and post-conveyance agreement). also 9 R. Powell, supra § 68.05[3] (distinguishing boundary by acquiescence from (Neb. 1983); Walters v. Snyder, 570 N.W.2d 301, 303 (Mich. Ct. App. 1997); see Hampshire and elsewhere. See, e.g., Spilinek v. Spilinek, 337 N.W.2d 122, 124 distinct theories that have developed independently from each other both in New Although these doctrines, in practica l application, may be similar, they are

title. Lakeview Farm, Inc. v. Enman, p. 6 689 A.2d 1089, 1092 (Vt. 1997). 2011). A boundary established by acquiescence is conclusive upon successors in Powell, Powell on Real Property § 68.05[2], at 68-24 (Michael Allan Wolf ed., separating the lots; and (4) have done so for at least twenty years. See id.; 9 R. to a certain boundary; (3) which they have recognized as the true boundary parties are adjoining landowners; (2) who have occupied their respective lots up establish a boundary by acquiescence, a party generally must prove that: (1) the kind of boundary dispute between his family and owners of the McClammer lot p. 7 them in approximately 2005. According to Michael, there had never been any upon her land to do so. Those signs remained there until McClammer removed southern bank of the river in the area north of the monuments were encroaching specific request, because she was concerned that trespassers accessing the installed “no trespassing” signs in the disputed area in 1970, at Hinchliffe’s would damage a garage on her property. Finally, Michael testified that he disputed area, again at Hinchliffe’s request, because she was concerned that it area and clearing it of debris. He further testified that he removed a tree from the her property, and that he would comply with her request by cutting wood in that south of the river and north of the markers free of debris to prevent flooding onto McClammer lot. Michael also testified that Hinchliffe asked him to keep the area between two of the markers in order to irrigate strawberry beds on the requested permission from Walter to run an irrigation line from the river and the early 1950s, Charles Elie, Hinchliffe’s brother and a grantee of the 1929 deed, occupation by McClammer’s predecessors. For instance, Michael testified that in demonstrating their occupation of the area in dispute, and recognition of their monuments as boundary markers, the O’Hearnes presented other testimony

In addition to testimony establishing Hinchliffe’s recognition of the

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claimed by the O’Hearnes. the true location of the now disputed boundary is consistent with the” boundary until McClammer acquired it.

this evidence to establish that both the O’Hearnes and Hinchliffe recognized “that and O’Hearne lots as being south of the river. The trial court sustainably found The DOT’s survey of the bridge identifies the boundary between the McClammer Hinchliffe deeded 0.01 acres of land extending “[n]ortherly to land . . . of Walter.” and south of the river, bounded to the south “by land . . . of . . . Hinchliffe,” while the State in 1983; the deed from Walter included 0.02 acres of land both north replacement, both Hinchliffe and Walter deeded small portions of their land to connection with its replacement of the bridge. Also in connection with the bridge the location identified in the 1929 deed of the monument removed by the DOT in Sugar River.” Ten feet, eight inches from the end of the bridge is consistent with marker placed 10 ft. 8 inches from the concrete end of the bridge over Little wrote the DOT and advised it of her intention “to meet [with Walter] and have a Consistent with this testimony, the re cord reflects that in 1983, Hinchliffe

between the respective properties.” recognized the boundary shown in [his] survey as being the true boundary that they “identified the markers now identified on [Michael’s] survey and . . . it to exist . . . many times over a period of time . . . exceed[ing] twenty years,” and found that Michael and Hinchliffe “walked the boundary line as [Michael] claims p. 8 8

issue, see water mark of the river, entitling him to the disputed land as part of the river did McClammer allege that the monuments established his boundary at the high and entitling him to the accretions. Nowhere in the petition or amended petition the river had “gradually migrated northward, accreting land onto the south bank” south side of the [river] between [the] river and [his] land,” and that, over time, O’Hearnes wrongly claimed title to the “upland lying in the flood plain along the claimed that the monuments were “at the edge of the river’s flood plain,” that the river, and not the artificial monuments, marked his boundary. Indeed, he that his title extended to the thread of the river, he did so on the basis that the for reconsideration. While in his initial petition to quiet title McClammer claimed

Sup. Ct. R. 16(3)(b), is a response he filed to an objection to his motion

only part of the record that he cites in his brief to establish that he preserved this “thread” of the river, see Sheldon v. Sevigny, 110 N.H. 419, 422-23 (1970), the trial court is the high water mark of the river and, thus, that he has title to the Finally, to the extent McClammer cl aims that the boundary found by the

the trial court’s purported “reliance” upon the 1929 deed is harmless. See id. reached by the trial court. See Kessler, 156 N.H. at 494. Similarly, any error in acquiescence in the boundary are supported by the record and compel the result the case since the trial court’s findings and rulings relative to Hinchliffe’s title referenced the monuments, this finding cannot have affected the outcome of To the extent the trial court incorrec tly found that the O’Hearne chain of

law. See Mastroianni, 15 p. 8 8 N.H. at 382. O’Hearnes was either unsupported by the evidence or erroneous as a matter of in dispute due to Hinchliffe’s acquiescence in the boundary claimed by the conclude that the trial court’s ruling that the O’Hearnes acquired title to the area occupation sufficient to provide notice of claim). Upon this record, we cannot acquiescence does not require continuous or exclusive occupation but only See Marja Corp. v. Allain, 622 A.2d 1182, 1185 (Me. 1 p. 9 993) (acquiring title by circumstances of this case, with establishment of the boundary by acquiescence. and “shared” with Hinchliffe, these findings are not inconsistent, under the found that the O’Hearnes’ use of the property south of the river was “occasional” requisite time frame under Vermont law). While the trial court may also have and used their lots consistent with the boundary over a period exceeding line as the common boundary, walked the fence line to confirm the boundary, least two generations of neighboring landowners accepted a fenced and blazed Farm, Inc., 689 A.2d at 1092 (boundary by acquiescence established where at for a period in excess of twenty years. Rautenberg, 108 N.H. at 23; see Lakeview the true boundary between the adjoining lots, and occupied the lots accordingly predecessors mutually recognized the boundary marked by the monuments as have found that the O’Hearnes, their predecessors, and McClammer’s We conclude that there wa s more than ample support for the trial court to 9

claimed errors in the first instance.” SNCR Corp. v. Greene should have a full opportunity to come to sound conclusions and to correct “Issues must be raised at the earliest possible time, because trial forums DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

A f f i r m e d

water mark of the river. trial does not compel a finding that the boundary markers are located at the high reconsideration. Even if he had timely raised the claim, however, the evidence at not timely raise this claim in a post-trial response to an objection to a motion for (2005) (quotation and brackets omitted). Here, we conclude that McClammer did

its “flood mark.” expert, who claimed that they were not at the high water mark of the river, but at high water line of the [river],” an assertion inconsistent with the testimony of his McClammer asserted that the monuments in fact were located at “the ordinary itself. In the response to the objection to his motion for reconsideration, however,