John Alexander Cucchi v. Town of Harrisville et al.

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of the court and welcome students from Canover High School and their teacher, Pam Custer. Welcome. Uh, you may proceed.

Yes, your honor. Uh, Paul Alfano appellant, uh, petition. Uh, plaintiff with me is, uh, attorney John Hayes. I understand you reserve one minute. Yes, please proceed. Yep. So, public roads, highways have one width in the case of a highway created by layout, which is a situation here. That width is stated, the return of layout. And here the return of layout is from 1939, and it says the highway is a hundred feet wide. Uh, that's undisputed. It's also undisputed that that 100 feet extends into the lake for the entire width of the land in question. That's undisputed. And also just before June Clooney, 1999, conveyed the, uh, my client's, uh, the property to my client's predecessor to my client. And that's the key deed here. I think that's the only, that's, that's the main deed where the property rights here are spring into being. When she conveyed that deed, it's undisputed. She owned not only the land that she conveyed to my client's predecessor, but also the land up to the, up to the lakes. In other words, she owned everything from the water all the way back to Dublin Road. But The deed conveying that property to your client's predecessor, entitled Clearly and ambi and Ambiguously indicated that it ended at the roadway, didn't it? That's key, your Honor. That's why this presumption exists. All legal descriptions for every lot runs along a road where it references a map. And that's why the presumption exists. People don't think about the roads when They're lots. What words would've, should have been used to overcome the presumption? Oh, Well, uh, for example, intending literally has to be clear and has to be clear and un unequivocal, uh, expressly reserving the, uh, the title to the road. Um, there are cases where if, if you, uh, if you no longer own the road and you, you can't, you can't, uh, you can't reserve anything you don't own. Or if the road doesn't exist anymore and it's no longer encumbered by a highway, the courts have said, well, you own, although the, the conveyance would, would, um, would not necessarily include that. So the, the key is that because it abuts a highway, um, the, this express description, I'm not disputing that's exactly what it was. It was very clear running along the highway. But because it abuts the highway and she owned the highway, the presumption is that she also conveyed that. And that is even the court's order. The court said how clear and compelling that is. That's a rock solid principle of New Hampshire law. Really, the only question is here, I think whether it goes to the middle or all the way to the water. And because she owns all the way into the water, she doesn't own any land on the other side, the presumption is that she, that the, the conveyance included everything, uh, up to the water. So, um, and so when determining how much of any of the road you look at whether she owned the fee under the road, which she did, and then you look at whether she intended to, uh, and whether she owned land on the other side, and she did not own in land on the other side, what the trial court did here is, is create a new concept, which is to take the highway, which is a hundred feet wide, and that's the only width that matters. The highway is a hundred feet wide and divide it into a traveled and untraveled section, section that's totally novel. And, uh, and, and think of it, I would, the best example I can give us is a common sense example. If you adopt what this, what the trial court has done, that would mean anytime someone conveys a lot and they own the abutting road, you would have to make a factual determination as to what part of the road is being traveled. What do you mean when you say they own the abutting road? Well, owns the fee to the Oh, owns the fee underneath the road. 'cause the roads are, are easements. They're public easement. Right? So, so what I mean is, example would be this case where the same person, June Clooney owned the fee under the road all the way to the water, and she owned the land, the lot that was conveyed. So what you, what you would have to do in a situation like this is when you convey the lot, again, running along the highway, and the presumption kicks in. What the court's done is they've created this concept of, well, you had to look at the travel section. You only look at the travel section. And the said, uh, basically said that the width of the road for purposes of this fee ownership issue, uh, you only look at the traveled section, June owned on the other side of the traveled section. Therefore, the conveyance only went to the middle of the travel section. Uh, and the problem is, as I said, you'd have to make a factual determination. Well, where's the travel section? Every time there's a conveyance here, there happened to be a survey, and we're not disputing what the travel section was because we think it's irrelevant. But you'd have to make a factual determination as to what the travel section was. You would literally be determining fee title based on whether or not the road is worn down. And, and, and, and here, the, the date would be 1999. So the, the plan that's used here is dated 2021, I think it was. Uh, but you, to do this, right, you'd have to go back and say, okay, where's the travel land back in, in 1999 and road shift all the time. Uh, so again, we're talking about fee title. Isn't that, isn't that sort of removing the fee ownership from the owner? If you're, if you're delineating the traveled way, it's almost like adverse possession, giving the public title to the fee under the traveled way. Well, the public never gets the fee. I know. But by bifurcating this lot, by outlining the traveled way, it seems to me it's treading awfully close to transferring, effectively transferring out the ownership in a way, dividing the parcel. Well, yes it does. Exactly. Because, because in this situation where the road goes all the way to the water, you, you wouldn't divide the, in fact, there's no case law that says you do that right. In this situation. And the Sheriff's Morton is very much on point. But you're right. If you, if you now get to this travel, um, this factual question of where's the traveled way, then you would, this is what the trial court did. The trial court said, well, there's, you only own, the grantee only got to the middle of the trial section, and then that's correct. Um, so, so anyway, so we just use that, that common sense. That's what what's gonna happen, um, if you adopt this, uh, this, this, uh, this ruling that you'd have to make that factual determination. So fee title would be determined based on what, how the ground is going down. So it's a bad idea. Uh, only one width and adhere to this case, it was a, it was a hundred feet. And again, I just want to distinguish, uh, regulation of the road. The municipality has the right to regulate the whole 100 feet, and there's always a traveled section, always a non traveled section. Most roads are about 50 feet. A three rod road is 49 and a half feet. And you know, most zoning ordinance will say 50 feet, but only about 20 or 25 is travel. The, the rest of it is used for maintenance. But the legal highway that's used for these middle of the road and these entire road, uh, principles is the entire legal width, which a hundred feet And the traveled way can move within that 100 Feet exactly As needed. Right. Uh, so assuming you, you agree with that, then the next part of the analysis is whether June Clooney 1999 and her D two caster, whether she clearly and unequivocally, uh, declared an intent to retain the title she did not. Her deed is what I would call a typical deed. It just, it, it conveyed the land. And yes, it clearly said it goes along the road, but most deeds do that. Uh, and, and that's why the presumption exists. As I said, nobody thinks about the road. Think about the lot that they're selling. That's where the value is. Is Patrick Cooney's corrective deed relevant? Uh, it's not for a couple reasons. One, he gave it six years after June took title. The, the only deed to look at in the law is the deed at the time of conveyance. So that conveyance from June to Stanley Cash, you would, that's number one. That's the only deed you look at. The second thing is, um, that deed, uh, it, the was very equivocal that, that this particular law, she said all my right title and interest, if any, that particular law. So even if you looked at that, it's not a clear unequivocal declaration that she even owned it. Um, but I, but I think it, so, but, but also, um, the, the court made a factual error. The court took that deed and claimed that, um, it had a, uh, clear and, uh, an explicit description of the dispute parcel. It did not, it described land from the water all the way back to Dublin Mo. The dispute of parcel was only a 30 feet deep. But the court said that, and I think that was relevant in the decision that, that you, I mean, if, if that, first of all, I think it's inappropriate. 'cause it was six years after the fact. June already owned the land. Mm-Hmm. It's like, uh, her predecessor, whoever Patrick was, could come and affect her property, right. Six years after the fact. But, um, but anyway, the, the, but the, but so that, that factual error was made, it did not have an explicit, uh, description. If it did, then maybe you could get into, into that. But I, but I think it had a bearing on the court's decision, I think, but it did not contain a explicit description. Um, I'd like to also point out that the, um, if you adopt this rule, this, this, this two, this traveled, traveled section rule, you, you'll effectively be overruling sheriffs, be more, uh, because, um, most roads, or it's extremely rare that a road goes all the way to the water. Sometimes it does. Usually they don't. And but you, you, so the, the, the effect of this is that Sheriff v Morton would only apply if the traveled section goes right up to the water. And that's, that's very rare. So the Sheriff v Morton would be effectively overruled. Sherris v Morton is well grounded. There's a lot of citations in it. Uh, and the, the, the concept really is, I, I would say it's a subtle, it's a subtle point, but I wouldn't view it so much as the middle of the road doctrine. We commonly do, because that's the vast majority of the cases. It's really a doctrine of, of the, um, who ownership of the road does work. But in some cases like this, then it's the entire road. What's the Effect of the 2007 stipulation, Which Refers to the center line? Well, first of all, we weren't a part, my client wasn't a part of that lawsuit. It was a two parties. It was, uh, it was silk in the town. Not, not even, not even unknown parties. It was simply between the two of them. So, um, I can't speak, but as between the two of them, there's certainly, uh, uh, she can't, the town apparently can't claim, uh, fee ownership. But the town never had fee ownership. The, the town, which is an undisputed, we don't, no one disputes that. But silk Is claiming fee ownership only from the center line North. That's Right. Silk is, but the town is not that order. But for some reason, the town agreed with silk that silk owned, um, the, the, the northern or the most of the disputed section, all of the, well, actually all of the disputed bars a little bit more than that. But it has no, no effect on the client. We pled that we weren't a part of that lawsuit. Uh, you know, it was, we, we tried to intervene, but the court didn't let us intervene. So the ownership component of that decision is not binding on, on my client. So, Um, the, um, Anyway, with respect to the, uh, anyway, the court, if you, in the decision, the court takes, uh, conflicting positions. On the one hand, the court says yes, the middle of the, you know, the ownership, and this was court was applying middle of the road, uh, does apply in that some part of the road was went to Stanley Castor. On the other hand, the court was saying, no, Stanley Castor, the deed clearly only conveyed to Stanley gas castor the lot south of the road. So there are inconsistencies within the order, and I think that stems from just the use of the word road through the decades in, in this, uh, in this situation, uh, conveyance of the, the title to the road, what did that mean? Did that mean fee title? Did it mean, uh, an easement and all the town had was an easement? So I would say, going back to your question, chief justice, I mean that, that, uh, all the town owned at that time, all it had was the regulatory power over this public road laid it out. So it's now what I would call a public easement. The fee was with, uh, let's say at that time it was, uh, it was with the private landowners. So it would've been with, uh, well with my client in 2007 when that suit was formed. Uh, so, and in the past when there have been conveyance of the conveyances to abut, um, all the town can convey what it had, and it has regulatory power over the highway by virtue of the, of the 1939 layout, which is separate from fee, we're talking about fee. Oh. Um, See my, okay. Thank you. Thank you Attorney. Attorney Kenyon May please the court. My name is Gary Kenyon. I'd like to pick up on Justice Donovan's question, uh, about the corrective deed, because I think, uh, I'd like to correct and clarify which corrective deed was being referred to. Uh, June Clooney, uh, received a corrective deed in 1999, the day before she conveyed the parcel to Mr. Castor, which is the deed that is the issue in this case. There was then a later 2004 corrective deed from June Clooney to Mr. Castor. I believe your question, justice Donovan relates to the directive deed from Patrick Clooney to June Clooney in 1999. Your question was, is this deed relevant? I think it is unquestionably relevant because that deed before the deed to Mr. Pastor in 1999 clearly shows that June Clooney knew that she owned land, including the disputed parcel in this case, north of Tuy Lake Road, and on the south shore of Tuy Lake, because that corrective deed by its specific description, uses meets and bounds that go to the south shore of the lake and along the north side of the right of way. So what was, uh, the purpose of June Clooney's corrective deed for six years later? Six years later? The purpose of that corrective deed was to make clear that when she conveyed the, in the 1999 deed to Mr. Castor lands south of Ska Lake Road, she also intended to include well rights south of Ska Lake Road. I think that deed is relevant in terms of this court's determination of the intention of the deeds to, of the parties based on surrounding circumstances. I think that's a surrounding circumstance that is relevant, because if at that time it was clear that June Clooney intended to convey her land north of Lake Road on the south side of the lake, she could have corrected the 1999 deed to Mr. Castor to sow state. She did not. All that corrective deed does is talk to, well, right on the south side of Lake Ska Lake Sask Road. I what the Court, if she thought she already conveyed it, why would she issue a corrective de Because the 1999 castor deed did not clearly delineate the well rights that abutted the parcel he received on the south side of the road. Right. Moving to the disputed parcel, she wouldn't correct it if she thought she intended or she did already transfer that. Well, I suppose if you conclude she already transferred it, uh, then perhaps that's the case. I don't think the trial court was incorrect in concluding. And in fact, it seems to be conceded in concluding that the 1999 D to Mr. Castor in no way, shape or form conveys land north of Du Lake Road on the south shore of the lake. So I think what this case presents to the court, this appeal is the conflict between the court's inheritance inherent obligation to interpret deeds that are at issue before, and the whole road, half road presumption doctrine that the appellant claims conveyed the disputed parcel to the appellant and his, uh, predecessors entitled in the 1999 cast d. And the reason I think the trial court's order was correct as a matter of law is because the 1999 castor deed is not ambiguous. It is perfectly clear about what it conveys. And as importantly, what it does not convey, the surrounding circumstances regarding that deed also indicate that that deed intended only to convey the lot referenced on the 1999 subdivision plan that is located south of Lake Skato Road and nothing more. What are those surrounding circumstances? You have the 1939 road layout that is a hundred feet in width. But what the court can't must be mindful of in its analysis is that between the 19 39 100 foot road layout and the 1999 castor D is the 1978 town meeting vote that gives authority to the Board of Selectmen of the town to convey rights and acknowledge rights of owners of land north of Lake Skai Road and south of the lake, because it was clear by then that owners did own land north of the road, did have cottages on that land north of the road, and they were concerned about making it clear that those landowners including, uh, Tony Silk, uh, and the disputed parcel, had rights to use that land not withstanding the existence of the 39 road layout. Do you agree that the 39 road layout, that a hundred feet goes all the way to the lake, If not to the lake, very close to the lake, Doesn't that matter if it goes to the lake, don't believe, or very close To the lake? I don't believe it does. I don't believe it does Justice Bassett. And the reason is based on a reading of, uh, the case of, uh, Gilman versus, no, sorry, uh, Hartford versus town Gilman. I've cited it in my brief. I think that's an important case to and analyze so that the court understands that there is a distinction between a road layout that overlays an easement on people's lands and the right of owners of those lands along the road to have greater literal rights than the general public making dic use of road within the a hundred foot in this case layout. And that case makes it clear that those littoral owners have rights that are superior to the rights of the public and its use of the road. And that is what the 1978 Town Warrant article vote was, making clear that the town layout may have been a hundred feet, but the town was not going to use that a hundred feet. And it was acknowledging rights of the landowners north of Ska Lake Road to use their land and cottages in ways that were superior to the rights of any members of the public to make use of. And the town is granted quick claim deeds to 12 or so property owners. That is correct, your Honor. And four or five of those quick claim deeds and surveys were on record prior to 1999 and the caster deed, but quick claim deeds for the Travel way, the easement overlay, not fee. That is correct. Right? That is correct. Justice, uh, Han Marconi, uh, it is giving up their easement rights over portions of the 100 foot, uh, 1939. Would, Would the plan's position disrupt those 12 quick claim deeds as to the right of way at All? I believe it could, your Honor, and I believe that's why it would be an unjust result in this case to undo what the town clearly acknowledged was the case in 1978. And what clearly is in June clooney's 1999 deed to Mr. Castor. What, what you have to think about. How so, how so if all the town was doing was giving up its rights to the easement, Because I believe the 1978 town meeting vote was an acknowledgement that it did not feel the town did not take the position that its easement rights over the road covered the entire 100 foot car. And that's where I go back to Hartford, the town of Gilman case, that clearly acknowledges that a road layout and appeasement for a road layout is one thing, but that doesn't mean that that layout is there for as long as that road is there. That layout can be modified by actions of the parties or the town. And here, the surrounding circumstances of the case show that in 1978, the parties knew that that road wasn't a hundred feet wide, nor was the road. Well, the parties knew it was less, but It would release the rights back to the owner. That's right. And they aren't rights to own it free of the layout necessarily, but that our rights to own it superior to anybody else, any member of the public or any person on the other side of the road, as is the case here. So that was known in 1999 at the time of the June ca deed, uh, the June Clooney de to Mr. Castor that was known. I would suggest to the court that June Clooney in 1999 did not think that the road layout extended a hundred feet right to the water. I would think that it's logical to assume that June Clooney thought the road layout extended to the northern edge of the traveled way, and I own the rest of that land. Why? Because there's the 1976 Shirley Clooney recorded plan that shows it's there and there is the corrective deed in 1999 to June Clooney describing the land north of the road. So you have that, and then added to that is in 2002, June, Clooney conveys by deed to Tony Silk, the land north of the road. She clearly intended to retain that land in the 1999 de. And she then thereafter conveyed that land, uh, as well. So I think those surrounding circumstances assist the court in finding that the intention of the parties at that time, which is what the court's goal is in interpreting deeds, was not to convey in 1999 deed to Mr. Casper, the land north of the road, but to only convey the land shown on that subdivision plan south of the road. And those Surround up to the center line of the road Up to the center line of the road. Yes. Justice Bassett. Um, if The, if the whole road presumption does apply, would the language in the caster d be sufficient to overcome it? I believe it is. And I think if you look at the Sheriff's v Morton case, which is really the primary New Hampshire decision regarding this whole road dark doctrine, you'll see that the Sheriff's v Morton case talks to, uh, the issue that if we, it is improbable, if it is improbable to find that the owner of the land under the fee would have retained it for any reason, then the whole road dock would apply. Well, was it improbable here for June Clooney to want to keep her land and lakefront property on the South shore of Lakes kaki at the time of the 19 90 90 de when she knew she owned it based on this, the 1976 Clooney c No, it is not improbable at all that she would want to retain it, and therefore she gave a deed in 1999 to Mr. Castor. That was very clear. It made reference to a subdivision plan. The subdivision plan only showed land south of Tuke Lake Road, and she conveyed one parcel south of Tuke Lake Road based on that plan. Thank you very much. Thank you, attorney Ken. Attorney Alfano. Thank you, your Honor. A few points. One is you can see the, uh, slippery slope of trying to, to infer June Clooney's intent, uh, is, is, uh, a treacherous business, particularly for transactions that took place after the fact. You just look at her deed to Stanley Castor. It's a very typical deed. There's nothing in there where she, she has to, um, clearly and unequivocally do something to express an intent to retain title to the road. Uh, there's nothing in the deed that that does that. Um, also, there's a, there's a factual error. It's a, it's appendix bar 99, which is this corrective deed to June. It does not describe the disputed parcel. Uh, attorney Kenyon said it goes along the south side of the right of way. It doesn't, it goes all the way back to Dublin Road. It's just simply inserting a full legal description that was in an earlier deed. Uh, and there's no disputing also that June got titled in 1993. She already owned all this land. As far as I'm concerned, any deeds that go to her after that are irrelevant. Um, it, it, it. Thank you very much, counsel. Case submitted. Uh, the court invites counsel and.