2016-0251, Carolyn J. Carlson, Trustee of the Carolyn J. Carlson Living Trust v. Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc.

to access Lake Massasecum. Plaintiff Carolyn J. Carlson, Trustee of the (Colburn, J.) decla ring that it does not have an easement to use a private road Vicinity Patrons, Inc. (Patrons), appeals an order of the Superior Court LYNN, J. The defendant, Latvian Lutheran Exile Church of Boston and

for the defendant. Orr & Reno, P.A., of Concord (Lisa Snow Wade on the brief and orally),

Trust. orally), for plaintiff Carolyn J. Carlson, Trustee of the Carolyn J. Carlson Living Tarbell & Brodich, P.A., of Concord (David E. LeFevre on the brief and

No. 2016 - 0251 Merrimack

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

docketed in the Merrimack County Superior Court as case number Church of Boston and Vicinity Patrons, Inc. ... now pending and Carolyn J. Carlson Living Trust et al v. Latvian Lutheran Exile ... SUBJECT TO t he case of Carolyn J. Carlson, Trustee of the

the Schweizers stated that the lot was being conveyed: “they did not want to participate in the litigation.” The deed from Kingsbury to were notified of the pending action, they informed counsel for both parties that the case with the assent of both Carlson and Patrons. After the Schweizers resume, Kingsbury sold her lot to Lois and Fred Schweizer and withdrew from point the trial was suspended pending further hearing. Before th e trial could The trial court held a bench trial over three days in July p. 2 2015, at which

servitudes in its favor. E ach party also requested permanent injunctive relief. use the driveway because the various deeds at issue contain equitable driveway; ( p. 2 2) has prescriptive rights over the driveway; and (3) has a right to declaratory judgment that it: (1) owns a valid deeded easement over the right to use the driveway through ouster. Patrons counterclaimed, seeking a deed ed right to use the driveway or, alternatively, that Patrons lost its deed ed the driveway. They also sought a declaratory judgment that Patrons ha d no In 2014, Carlson and Kingsbury petitioned the trial court to quiet title to

acce ss the lake. between the parties over whether Patrons had a right to use the driveway to driveway. Thereafter, over the next year, a number of dispute s occurred widen, place crushed gravel upon, and cut back branches alongside the other lakefront tract owners had left for the season, Patrons proceeded to the driveway to access the lake. In November p. 2 2012, after Carlson and the consulting with counsel, told Carlson and Kingsbury that it had a right to use The present dispute began in August 2012 when Patrons, after

easement to use the driveway to access her property. property on Lake Massasecum, and her deed to that property includes an across the proper ty from Lake Massasecum to Davis R oad. Carlson also owns Massasecum and Davis R oad, which is a public road. A private driveway runs lawsuit, Shirley Kingsbury, own ed property in Bradford that border s both Lake The relevant facts are as follow s. One of the plaintiffs in the underlying

dismissed for lack of subject matter jurisdiction. declaratory relief, and remand with instructions that both parties’ claims be had no standing to petition to quiet title, vacate the trial court’s grant of standing to pursue their claims, we affirm the trial court’s ruling that Ca rlson of Carlson ’s petition to quiet title. Because we find that both parties lacked Carolyn J. Carlson Living Trust (Carlson), cross - appeals the trial court’s denial p. 3 3

To resolve this issue, we must engage in statutory interpretation. “Accordingly, Carlson first contends that she has standing pursuant to RSA 491:22.

of the case. her status as an easement holder; and ( p. 3 3) based up on the procedural posture alternative grounds: (1) pursuant to RSA 491:22 (Supp. 2016); (2) based up on Patrons with her use of the driveway, she had standing based on three Conversely, Carlson argues that, regardless of any interf erence by

seek a declaratory judgment. easement rights ha d not been impaired, and, therefore, she lack ed standing to the driveway ha d not interfered with Carlson’s use of the driveway, her Thus, Patrons contends that, because the trial court found tha t Patrons’ use of trespass only if the trespass interferes with the easement holder’s rights. an easemen t holder, such as Carlson, has standing to challenge an alleged declaratory relief regarding Patrons ’ use of the driveway. Patrons argues that Patrons ’ first argument is that Carlson lacked standing to seek

standing to pursue her quiet title action against Patrons. cross - appeal, Carlson challenges the trial court’s ruling that she lacked driveway based upon an equitable servitude in Carlson’s chain of tit le. In the a deeded right of way over the driveway; and ( p. 3 3) Patrons had no right to use the had standing to challenge Patrons ’ use of the driveway; (2) Patrons did not have On appeal, Patrons challenges the trial court’s rulings that: (1) Carlson

driveway. This appeal and cross - appeal followed. trial court’s order ruled on the merits that Patrons had no right to use the sta nding to pursue her claim for declaratory relief. As to the latter claim, the ruling that Carlson lacked standing on her petition to quiet title, but had standing to pursue a declaratory judgment. The trial court issued an orde r with respect to her petition to quiet title and argued that Carlson also lacked Thereafter, Patrons renewed its argument that Car lson lacked standing

two days. would review the issue at the close of the trial. T he trial continued for another lacked standing. The trial court denied Patrons ’ motion, but stated that it moved for a directed verdict on Carlson’s petitio n to quiet title, arguing that she The trial resumed on December 8, 2015. After Carlson rested, Patrons

Neither Carlson nor Patrons added the Schweizers as parties to the case.

to same. representation concerning said action and the Buyer takes subject 217 - 201 p. 4 4 - CV - 00044. The Sellers herein make no warranties or a 4

equitable right on the one hand and its denial on behalf of an adverse interest Indemnity Ins. Co., 109 N.H. 53, 55 (1968). Thus, a “[c]laim of legal or before an actual invasion of rights has occurred.” Portsmouth Hosp. v. distinguishing characteristic of the [declaratory] action is that it can be brought actual invasion of rights has occurred. Carlson is correct that “[t]he easement rights because the statute permits an action to be brought before any action under this statute without showing that Patrons interfered with her Carlson argues that she has standing to bring a declaratory judgment

judgment. Carlson’s right, she lacks standing to maintain her petition for declaratory Carlson’s interest. Therefore, because Patrons is not “claiming adversely” to exercise of her right to use the driveway, Patrons ’ interest is n ot adverse to driveway and its exercise of that right are not interfering with Carlson’s with her right to use the driveway. B ecause Patrons ’ claim of a right to use the respective right. In this case, Carlson testifie d that Patrons has not interfered exercise a right to use the driveway without interfering with the other’s to use the driveway are not inherently adverse; both parties can hold and have an exclusive rig ht to use the driveway. Thus, the parties’ claimed rights access the lake. Significantly, however, neither Carlson nor Patrons claims to Lake Massasecum. Patrons also claims a right to use the same driveway to Here, Carlson has a right to use the driveway to access her property and

must not be based upon a hypothetical set of facts.” Id. (quotation omit ted). concrete touching the legal relation of parties having adverse interests, and (quotation and brackets omitted). “The claims raised must be definite and with the party’s adversary, and thus to warrant the gr ant of judicial relief.” Id. sufficiently complete, mature, pro x imate and ripe to place the party in gear requirement, a party seeking declaratory relief must show that the facts are prejudiced. See Duncan v. State, 166 N.H. 630, 6 p. 4 45 (2014). “To meet this 491:22, I, a party must show that some right of the party has been impaired or To establish standing to bring a declaratory judgment proceeding under RSA the parties, and the court’ s judgment or decree thereon shall be conclusive.” claiming adversely to such right or title to determine the question as bet ween legal or equitable right or title may maintain a petition against any person RSA 491:22, I, provides, in relevant part: “A ny person claiming a present

omitted). add language that the legislature did not see fit to include. Id. (quota tion statute as written and will not consider what the legislature might have said or words used.” Id. (quotation omitted). “We interpret legislative intent from the language of the statute and ascribe the plain and ordin ary meanings to the considered as a whole.” Id. (quotation omitted). “We first examine the the final arbiter of legislative intent as expressed in the words of the statute p. 5 577 (2017) (quotation omitted). “In matters of statutory interpretation, we are our standard of review is de novo.” Cady v. Town of Deerfield, 169 N.H. 575, 5

easement owner ge nerally can maintain an action to enjoin the trespasser from trespasser is interfering with the easement o wner’s use of the easement, the possession). However, if the easement owner can demonstrate that the to the owner of an easement that does not carry t he right of exclusive 172 A. 619, 622 (Vt. 1934) (holding that a n action for ejec tment is unavailable the time of the trespass.” (quotation and brackets omitted)); Scampini v. Rizzi, had the actual or constructive possession of the property trespassed upon at trespass, being a possessory action, cann ot be maintained, unless the plaintiff Bank, p. 5 596 N.E.2d 1013, 1016 (Mass. 1992) (“It is well settled that an action of interferes with the easement holder’s use); Attorney General v. Dime Sav. trespasser from u sing the property absent a showing that the trespasser’s use possessory interest in the underlying fee, the easement holder cannot enjoin a 2012) (ruling that because a non - exclusive easement holder does not hold a passage.”); see also Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 652 - 55 (7th Cir. using the land, if his use does not impede the exercise of the rig ht of necessarily follows that such an owner cannot prevent even a trespasser from over land does not convey the soil, or any corporeal interest in it, and it ejectment. See Low v. Streeter, 66 N.H. 36, 3 8 (1889) (“A grant of a right of way are traditionally established to protect possession, such as trespass and 34 - 5 (Michael Allen Wolf ed. 2017), easement owners cannot bring actions that interest in land, s ee 4 Richard R. Powell, Powell on Real Property § 34.01[1], at trespass across the easement. Because an easement is a non - possessory easement holder to bring a declaratory judgment action to stop Patrons ’ Carlson next argues that she had standing based upon her status as an

“purely subjective or speculative fear of fut ure harm”). Federal Constitution to maintain a declaratory judgment action based upon a 1339 - 42 (Fed. Cir. 2008) (holding that a party lacked standing under the omitted)); c f. Prasco, LLC v. Medicis Pharmaceutical Corp., p. 5 537 F.3d 1329, judgment action “cannot be based on a hypothetical set of facts.” (quotation See Avery v. N.H. Dep’t of Educ., 162 N.H. 604, 608 (2011) (A declaratory the asserted invasion of rights that she seeks to prevent is purely speculative. not because no actual invasion of those rights has yet occurred, bu t because bring a declaratory judgment action for interference with her easement rights Carlson’s right sometime in the future. Therefore, Carlson lacks standing to also no evidence that Patrons is likely to overbu rden or otherwise interfere with use of the driveway interfered with Carlson’s use of the driveway, but there was to use the driveway. Furthermore, not only was there no evidence that Patrons ’ Here, Patrons ’ claim ed right is not inherently adverse to Carlson’s right

upon hypothetical facts. See Duncan, 1 p. 6 66 N.H. at 64 p. 5 5. requiremen t that the controversy involve adverse interests that are not based before an invasion of rights has occurred does not obviate the standing (quotation omitted). However, the ability to obtain a declaratory judgment constitute a cause for proceeding for a declaratory judgment.” Id. at 56 6

declaratory judgment to Carlson and remand with instructions to dismiss the Therefore, for the foregoing reasons, we vacate the trial court’s grant of a

her declaratory judgment action. upon establish either adversity or interference, she lacks standing to pursue Accordingly, because none of the factual circumstances that Carlson relies judgment action against a trespasser in the absence of int erference. no authority for the view that an easement holder can maintain a declaratory 2 2 p. 6 6 (emphasis added). Thus, contrary to Carlson’s assertion, Mansur provide s petitioner s ’ deeded easement rights was properly before the trial court.” Id. at whether the respondents’ actions in building a new house interfered with the Notably, in Mansur, we concluded, based upon the record, that “the issue of Our decisi on in Mansur is readily distinguishable from the present case.

trespass. See Mansur, 159 N.H. at 22 p. 6 6 - 27. We disagree. an argument that an easement holder lacked standing to pursue a claim of the situation in Mansur v. Muskopf, 159 N.H. 216 (2009), in which we rejected remainder of the trial. Carlson argues that t his factual situation is similar to subject to the pending litigation; and (6) both parties proceeded with the affirmatively declined to participate; (5) the Schweizers took the property the Schweizers as parti es; (4) the Schweizers were notified of the litigation and opportunity to add the Schweizers as parties; (3) both parties chose not to add Kingsbury sold her property to the Sch w eizers, both parties were given the then the owner of the fee to the driveway, was a party to the case; (2) after collectively give rise to standing: (1) at the outset of this litigation, Kingsbury, posture of the case. In particular, Carlson a rgues that the following facts Carlson next asserts that she has standing based up on the procedural

possessory rights. interference with the easement h older’s use and enjoyment of its n on maintain an action against a trespasser without alleging actual or likely Consequently, we conclude that the holder of a non - exclusive easement cannot proof that his possessory interest h ad been disturbed” (emphasis added)). standing to bring his common law claim of trespass because he failed to offer N.H. 713, 717 (2001) (affirming the trial court’s ruling that the plaintiff “lacked because it conflicts wi th our standing jurisprudence. Cf. Lake v. Sullivan, 145 730 - 31 (Pa. Super. Ct. 1940). However, we decline to follow this minority view Haldeman, 728 A.2d 345, 348 - 49 (Pa. 1999); Shore v. Friedman, 1 p. 6 6 A.2d 727, inter fered with the easement holder’s use of the easement. See, e.g., Kao v. trespasser from using the easement even without a sh owing that the trespasser S ome courts have held that easement holders have standing to prevent a

disturbs or obstructs the easement owner’s use of the easement.). trespass against the owner of an easemen t to use that land unless that act 1949) (The act of a person unlawfully going upon land does not constitute a further interference. See, e.g., Catania v. Vanacore, p. 7 70 A.2d 13 p. 6 6, 137 (Conn. 7

contests Carlson’s own easement rights to use the driveway. Accordingly, driveway. Moreover, Carlson does not assert that Patrons (or anyone else) interest in the driveway is not adverse to Patrons’ claimed interest in the may claim to have an adverse interest. Id. As discussed above, Carlson’s that a person may only bring a quiet title action against another person who RSA 49 8:5 - a (emphasis added). It is clear from the language of RSA 498:5 - a

same .... up all doubts and disputes and to quiet and set tl e the title to the for the purpos e of determining such adverse ... claim, and to clear entitled to the immediate or exclusi ve possession of such property, same... adverse to the plaintiff. .., whether or not the plaintiff is aga inst any person who may claim ... to have any interest in the claiming ... any interest in... real or personal property, or both, An action may be brought in the superior court by any person

The quiet title statute provides, in relevant part:

standing sua sponte.”). question of subject matter jurisdiction, we may raise the issue of a party’s her quiet title action. See Duncan, 166 N.H. at 640 (“[B]ecause standing is a address her argument because we find that Carlson lacked standing to pursue acquired the property subject to the pending litigation. However, we need not had actual notice of the litigation, affirmatively elected not to participate, and necessary parties, they were bound by the trial court’s decision because they (2010) for Carlson’s quiet title action; and (2) even if the Schweize rs were because: (1) the Schwei zer s were not necessary parties under RSA 498:5 - a owned the fee to the driveway. Carlson argues that this ruling is erroneous S chweizers were necessary parties to Carls on’s quiet title action because they denying her petition to quiet title. In its order, the trial court ruled that the In her cross - appeal, Carlson contends that the trial court erred in

jurisdiction. dismiss Patrons ’ counterclaim against Carlson for lack of su bject matter against Carlson. Therefore, on remand, the trial court also is instructed to reasons stated above, that Patrons lacks standing to pursue its counterclaim the Schweizers as parties in its coun terclaim, we also conclude, for the same interferes with Patrons ’ claimed easement, and because Patrons did not join Because Patrons does not allege that Carlson’s use of her easement

to adjudicate a controversy). (holding that the lack of standing deprives a court of su bject matter jurisdiction petition for lack of subject matter jurisdiction. See Duncan, 166 N.H. at 640 p. 8 8

DALIANIS, C.J.