2015-0333, Paul Lynn & a. v. Wentworth By The Sea Master Association

governs a residential development, comprised of over 100 homes as well as The record supports the following pertinent facts. The association

Because we conclude that an easement was validly created, we affirm. the plaintiffs’ property that provides memb ers of t he association beach access. judgment to the plaintiffs. The parties dispute the validity of an easement on Wentwort h By T he Sea Master Association (association), and denying summary Superior Court (Anderson, J.) granting summary judgment to the defendant, LYNN, J. The plaintiffs, Paul and Sara Lynn, appeal an order of the

and Megan C. Carrier on the brief, and Mr. Harvell orally), for the defendant. Sheehan Phinney Bass + Green, P A, of Manchester (Michael C. Harvell

M. Deschenes on the brief, and Mr. Deschenes orally), for the plaintiff s. Hinckley, Allen & Snyder, LLP, of Concord (Richard Y. Uchida and Daniel

No. 2015 - 0333 Rockingham

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, Concor d, 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 p. 2 22 as 2

to the Declaration of the Wentworth By The Sea Master Association, Covenants, The Horgans’ deed also states: “Title to and use of the above lot is subject

easement running over the property. The predecessor also filed an Easement Plan in April 1996 depicting the

Registry of Deeds. Wentworth By The Sea” to be recorded at the Rockingham County entitled “Easement Plan for Lot 17 and p. 2 23 of Little [H] arbor, shown as “Additional Access Easement” on Lot 17, on a plan succes sor master association, over or u pon the easement area successors, the Wentworth By The Sea Master Association, or any An access easement in favor of NC Wentworth, LLC, and its

Declaration of Easement in April 1996, which stated: depicted the easement, was recorded. The association’s predecessor recorded a days after the Horgans purchased the property — a revised s ite plan, which association’s predecessor, did not show the easement. On May 11, 1995 — 13 A site plan for the development, recorded in September 1994 by the

specifically mentioned. mentions an easement providing beach access, although other easements are present in the plaintiffs’ deed. No deed in the chain of title specifically Development o r the Little Harbor Development.” S imilar language i s also which may be recorded in the future with respect to the Wentworth By The Sea subject to all utility and other applicable easements or restrictions of record, or The deed from the developer t o the Horgans states: “This Conveyance is

with the easement during the time that t he y lived on the property. may have been unclear. The Horgan s also testified that they had no problems “handshake” on the existence of the easement, although its precise location he and his wife purchased it. Caligaris testified that he and Mr. Horgan h ad a Horgan testified that he knew there was an easement over the property when at least once w ith David Caligaris, a representative of the developer. Mr. Mr. Horgan recalled speaking with a realtor on m ultiple occasions and meeting the developer. Mrs. Horgan recalled doing a “walk - through” with a realtor, and deposition that the easement existed on the property before they bought it from by warranty deed dated April p. 2 28, 1995. Both Horgans testified during and was first conveyed to the plaintiffs’ predec essors in interest, the Horgans, Lot 17 was the site of the first house constructed in the development,

across Lot 17 to the water. from Little Harbor Road al ong Lot 17 and the neighboring lot before cutting that provides beach access to association members and their guests. It runs by warranty deed dated June p. 3 30, p. 2 2011. The easement at issue is a walkway common areas, in New Castle. The plaintiffs purchased their property, Lot 17, 3

easement existed, what it was for, and generally where it fell.” Thus, the court prior to the purchase,” and Mr. Horgan “unquestionably knew that the unequivocally that they were aware tha[t] an easement ran over their property “the exact metes and bounds were not yet finalized.” “[T]he Horgans testified boug ht the property — it was just not recorded until two weeks later” because the Horgans and Caligaris that the easement was agreed to before the Horgans purchased the property.” The court no ted “the uncontroverted testimony from conclud ed that “an easement by implication was created when the Horgans determined that the easement was validly created. Specifically, the court judgment and granted su mmary judgment to the association. The court T he trial court denied the plaintiffs’ motion for partial summary

evidence. The parties then filed supplemental memora nda addressing the additional allowing the plaintiffs to take the depositions of the Horgans and Caligaris. plaintiffs’ motion to exclude and reopened discovery for the limited purpose of basis that it was not t imely produced. After a hearing, the court denied the disclosed to the plaintiffs. The plaintiffs moved to exclude this evidence on the presented to the New Castle Planning Board, which had not previously been association submitted affidavits from the Horgans and documents that were objection to the p laintiffs’ motion for partial summary j udgment, th e counterclaimed, and both parties moved for summary judgment. In its that the easement was invalid and unenforceable. The association prevent the association from using the easement, and a declaratory judgment In January 2014, t he plaintiffs filed suit seeking injunctive relief to

D - 24600.” Sea recorded in the Rockingham County Registry of Deeds as Plan No. entitled Easement Plan for Lot 17 & 2 p. 3 3 at Little Harbor at Wentworth By The specifically mentioned in their dee d: “Being the same premises shown on a plan easement itself prior to purchasing the property. The Easement P lan was plan, revised site pla n, Declaration of Easement, Easement Plan, and the The record establishes that the plainti ffs had actual notice of the site

be deemed to be the Master Site Plan(s). connection with the property shall, collectively or as a composite, . . . or by any subsequent Site Plans. All such plans recorded in improvements, both existing and p roposed, are shown on that Plan Master Site Plan dated February p. 3 3, 1993, and recorded.... The The We ntworth B y the Sea development is shown on the

states, in relevant part: Registry.” The association’s Covenants, Conditions, and Restrictions (CCR) Deeds at Book p. 3 3026, Page 2596, and amendments th ereto recorded in s aid Conditions and Restrictions, recorded at the Rockingham County Registry of p. 4 4

have not demonstrated that their case was prejudiced in any way, we concl ude supplemental briefs befo re the court made its ruling. Because t he plaintiffs depose the Horgans and Caligaris, which they did. Both parties then filed closed. The trial court, however, reopened discovery so that the plaintiffs could they did not have the opportunity to depose the Horgans before discovery The only prejudice that the plaintiffs identified at the hearing was that

Id. rulings were clearly untenable or unreasonable to the prejudice of [their] case.” 832 (2005). The plaintiffs, therefore, “must d emonstrate that the trial court’ s discretio n standard.” Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, decisions on the admissibility of evidence under an unsustainable exercise of Horgans’ affidavits and planning board documents. “We review the trial court’ s admit ting evidence produced after the initial close of discovery, including the We first address the plaintiffs’ contention that the trial court erred by

argument s are not preserved for appeal. the CCR. Add itionally, the association contends that several of the plaintiffs’ that the right to create future easements was reserved in the Horgan deed and that the easement arose by implication as part of a planned development, and license was created. The association argues that the trial court properly found recorded documents created the easement, and that, at best, a revocable resolving material issues of fact. The plaintiffs further contend that no motion to exclude the Horgan affidavits and other evidence; and (3) improperly concluding that a valid easement was created by implication; (2) denying the On appeal, the plaintiffs argue t hat the trial court erred by: (1)

interest was a revocable license instead. This appeal followed. easement went over their land” and there was “no evidence to suggest” that the only to a revocable license because “the Horgans testified consistently that an The court rejected the plaintiffs’ argument that the Horgans had agreed

existed on the property. about people using the easement, which demonstrated that an ea sement conduct, namely that the Horga ns never had any problems with or complaints allowed the easement. In addition, the court pointed to evidence of the parties ’ subjecting the property to restrictions in the future, which Caligaris believed The c ourt also noted that the deed contained a “catch - all provision”

agreed to the easement, purchased the property.” decided that “the easement arose by implication when the Horgans, having p. 5 5

recorded, granted the right to use a right of way shown on an easement plan. In that case, an easement agreement, which was signed by both parties and easement plan ind ependently created an easement.” Close, 146 N.H. at 483. (2001). In Close, we held that an “easement agreement coupled with [an] and a plan together.” Id. at 14; see also Close v. Fisette, 146 N.H. 480, 483 - 84 We have said that an easeme nt may be created “by a written conveyance

impose it after the sale. We disagree. easement prior to the sale of Lot 17 to the Horgans or reserved the right to omitted). The plaintiffs assert that no recorded documents created the created by written conveyance, prescrip tion or implication.” Id. (quotation “An easement is a nonpossessory interest in real property that can be

instead that an express easement was created. Servitudes § 2.14 [2000] [Servitudes Implied from General Plan]”). We conclude the implication of servitudes pursuant to Restatement (Third) of Prop.: that because the case did “not involve reciprocal servitudes,” it did “not involve by common plan exists. See Soukup v. Brooks, 1 p. 5 59 N.H. 9, 13 (2009) (agreeing analysis. We also d o not agree with the association that an implied easement support ing those elements, nor did it appear to rely upon such elements for its the existence of such an easement, it did not attempt to describe the evidenc e note, h owever, that although the trial court recited the elements necessary for plaintiffs that an easement implied by prior use does not exist in this case. We conclude, however, that neither party’s position is correct. We agree with the The parties dispute what type of implied easement is at issue. We

e vidence support s the court’s determination. or development — was created. The association further contend s that the ruled that a different type of implied easement — an easement by common plan argues that the trial court did not find an easement by prior use, but rather, Raab, 132 N.H. 711, 716 (1990), but which do not exist here. The association easement by prior use, which the trial court recited in its order, s ee Blaisdell v. plaintiff s contend that the necessary elements are those needed to establish an of Frauds. See RSA p. 5 506:1 (2010); see also RSA 477:7, :15 (2013). The be created by the oral agreement alone because that would violate the Statute for an easement by implication. They further a rgue that an easement could not predecessor because the agreement fails to est ablish the necessary elements based upon an oral agreement between the Horgans and the association ’s argue that the tria l court erred by ruling that an easement by implication arose trial court ruled that an implied easement had been created. The plaintiffs The issue before us is whether an easement was validly created. The

the evidence. that the trial court did not unsustainably exercise its discretion by admitting p. 6 6

intended meaning from the deed itself without resort to extrinsic evidence.” Id. Id. “If the language of the deed is clear and unambiguous, we will interpret the they wrote it, taking into account the surrounding circumstances at that time.” interpreting a deed, we give it the meaning intended by the parties at the time law, we review the trial court’ s interpretation of a deed de novo.” Id. “In Ettinger v. Pomer oy Ltd. P’ ship, 1 p. 6 66 N.H. 447, 450 (2014). “As a question of “The proper interpretation of a deed is a question of law for this court.”

N.H. at 1 p. 6 6. law, we will address it in the interest of judicial econom y. See Soukup, 159 rule on this issue in the first instance, because it is ultimately a question of express easement was created. Although we could remand to the trial court to future. Nonetheless, the trial court made no explicit ruling on whether an developer believed allowed a restriction to be placed on the property in the noted that the deed to the Horg ans contained a “catch - all provision,” which the Although the trial court ruled that an implied easement was created, it

deed, CCR, and site plan together created the easement over Lot 17. reserved the right to create the easement. We conclude that, in this case, the created an easement). The question is whether another document conveyed or at 484 (holding that an easement agreement and an unrecorded easement plan that it was recorded after the property was conveyed. See also Close, 14 p. 6 6 N.H. CCR. The plan depicting the easement, therefo re, is valid, notwithstanding plan. Further, the Horgan deed recognizes that the property is subject to the site plans may be recorded, but that such plans become part of the master site sale and recorded a short time later. The CCR acknowledges that subsequent conveyance is significant. We d isagree. The plan was approved prior to the plaintiffs argue that the fact that this plan was not rec orded until after the submitted to and approved by the planning board prior to the sale. The recorded 13 days after the property was conveyed to the Horgans, but had been depicting the easement over Lot 17 is recorded. This version of the plan was The issue before us here is similar to that in Soukup. Here, a site plan

Id. at 17. deed was such an instrument because it “expressly convey[ed] an easement.” the alleged easement depicted in the plan.” Id. at 14. We concluded that the us, then, was “whether there [was] a written instrument conveying or reserving was no t sufficient to convey an easement. I d. at 13 - 14. T he question before depicting the easement — was recorded. Id. at 11. W e stated that a plan alone Soukup, 159 N.H. at 19. In that case, an easement plan — a subdivision plat In Soukup, we held that a deed and a plan together created an easement.

easement.” Id. at 484. We concluded that the “two documents [were] sufficient to create an “clearly reference[d] a plan, thus providing inquiry notice of its existence.” Id. Id. at 483 - 84. Although the plan itself was not recorded, the agreement p. 7 7

Caligaris were consistent in their testimony that the Horgans knew of the was not unilaterally created. As the trial court noted, the Horgans and Such evidence shows that the parties agreed to an easement, and that it

166 N.H. at 450. intentions and the circumstances surrounding the conveyance. See Ettinger, as to what the parties intended, so we look to extrinsic evidence of the parties’ if possible, is to be given to every word”). In this sense, the deed is ambiguous require the application of the wholesome doctrine of the ancient rule that effect, (Carpenter, J., dissenting) (in construing a will, “[r]eason and common sense have some meaning. Cf. Stevens v. Underhill, 6 p. 7 7 N.H. 68, 76 (1883) be more explicit than the language here. H owever, the l anguage here must be interpreted in this fash ion, the language reserving the right would have to property i s convey ed would be absurd. We agree that in order for the deed to as reserving the right to unilaterally create any and all easements after the future.” At oral argument, the plaintiffs suggested that interpreting this phrase further conveys Lot 17 subject to all easements “which may be recorded in the respective properties subject to all easements of record, but the Horgan deed of the deed in Appletree and the Horgan deed. Both deeds convey their in the future. However, there is an important distinction between the langua ge the Horgan deed does not create the easement or reserve the right to create it Relying upon this holding, the plaintiffs argue that similar language in

t he easement, i d. at 349. to the easements contained in the [first] deed was insufficien t to give rise to” all valid easements,’” id. (quotation omitted), and concluded that “the reference that “[t]he phrase ‘subject to all easements’ in a conveyance means ‘subject to 348. Appletree argued that this language created the easement. Id. We stated Lot 2 subject to all easements of record and referenced the first deed. Id. at 2) and the servient e state (Lot 6) to the same owner.” Id. A later deed conveyed not create an easement... because it conveyed both the dominant estate (Lot 2 and 6 subject to the easement at issue. Id. at 34 p. 7 7. However, the deed “d id 349 (quotation and ellipsis omitted). In Appletree, the first deed conveyed Lots insufficient to resurrect an otherwise invalid easement.” Appletree, 162 N.H. at which we stated that “a mere ‘subject to’ reference to a recorded do cument is Associates, LLC v. Rav enna Investment Associates, 162 N.H. 344 (2011), in Access Easement after it was sold.” In support, they point to Appletree Mall read to allow the Developer to unilaterally encumber Lot 17 with the Ocean Little Harbor Development.” The plaintiffs argue that this language “cannot be in the future with respect to the Wentworth By The Sea Development o r the other applicable easements or restrictions of record, or which may be recorded The Horgan deed stated: “This Conveyance is subject to all utility and

used to clarify it s terms.” Id. parties’ intentions and the circumstances surrounding the conveyance may be “If, however, the language of the deed is ambiguous, extrinsic evidence of the p. 8 8

instrument, the intent of the parties may be derived by reference to extrinsic an interest in land is a license or an easement. In the case of an ambiguous N.H. 136, 139 (19 p. 8 85) (“[T] he intent of the parties is what determines whether revocable license. See Locke Lake Colony Assoc. v. Town of Barnstead, 126 written conveyance, and the parties’ intent, create d an easement, not a is in writing and signed by t he party to be charged . . . .”). Additionally, the unless the agreement upon which it is brought, or some memorandum thereof, 506:1 (“No action shall be maintained upon a contract for the sale of land oral agreement between the parties, the Statute of Frauds is satisfied. See RSA Horgan deed, which was signed and recorded, and is not based solely up on an Becaus e our holding ultimately relies upon the interpretation of the

documents taken together are sufficient to create the easement over Lot 17. references the site plans. Along with the evidence of the parties’ intent, these not reference the plan itself, it does reference the CCR, which in turn an easement. Soukup, 159 N.H. at 19. Although the deed in this case does In Soukup, we held that a plan and a deed referencing the plan create d

used as well as the words themselves.” Sandford, 76 N.H. at 4 p. 8 80. evidence, wh ich includes the circumstances under which the language was “[T] he meaning of the parties is to be ascertained from all the competent suffices to clearly express the [grantors’] intent to establish the . . . easement.”). portion of the deed creating the easement is not a model of draftsmanship, it Chase v. Nelson, 507 N.E.2d 640, 643 (Ind. Ct. App. 1987) (“[A]lthough the intention of the parties.” Sandford v. Boss, 76 N.H. 476, 480 (1912); se e also application of arbitrary rules, but by ascertaining the true meaning and real we have stated that “the construction of [a] deed is not to b e determined by the Although the deed may not have been as artfully drafted as it could have been, in the Horgan deed intended to convey an easement over the property. These facts and circumsta nces support the conclusion that the language

indication of the intent of” the parties). easements] until the plaintiff brought the present proceedings” was “a further (stating that the fact that “[n]o question was ever raised as to [the reservation of plaintiffs filed the current suit. See Morton v. State, 104 N.H. 134, 142 (1 p. 9 962) easement was not challenged or disputed for nearly 20 years, until the over the Horgans’ property, with no complaint from the Horgans. In fact, the parties also points to an intent to create an easement. The walkway was built may be clarified by the agreement of subsequent owners”). The conduct of the (recognizing that “where the location of a deeded right of way is uncertain, it easement later. Cf. Duxbury - Fox v. Shakhnovich, 159 N.H. 275, 2 p. 8 82 (2009) deed’s language acted as a “catch - all” that allowed them to preci sely define the the property or the community had been finalized. Caligaris stated that the sold in the devel opment, the circumstances were such that not all details about easement before they purchased Lot 17. Be cause Lot 17 was the first property 9

DALIANIS, C.J.