Opinion
No. 5142.
Argued October 1, 1963.
Decided December 30, 1963.
1. Ancient town titles based on legislative and municipal activity are accorded a presumption of validity when subjected to attack in the Twentieth Century, and the burden is on the contestant to show a better title.
2. Where a town had record title to a landing area adjacent to public waters and exercised dominion over it and had attempted to prevent one who recently purchased a boathouse in a dilapidated condition in the area from building a new one on the site the town was held entitled to maintain injunctive proceedings where the evidence warranted the finding that the town used seasonable diligence in protecting its rights, and the town's right of access to the landing area would be adversely affected by such building.
The plaintiff, claiming littoral ownership of land on Lake Winnipesaukee, hereinafter referred to as the landing place, seeks an injunction to restrain the defendant from maintaining a boathouse in the waters of Lake Winnipesaukee almost directly in front of plaintiff's property on the shore of said lake. The Court after hearing and a view of the premises made certain findings and rulings, together with a decree for the plaintiff, and an order that the defendant remove his boathouse. The defendant's exception to certain findings and rulings and the decree and order of the Court were reserved and transferred by Keller, J.
The history and chronological order of events culminating in this litigation appears in certain pertinent findings of the Court hereinafter quoted.
"The landing place is bounded on the north by a State highway, on the south by the Lake, on the west by a line separating not only the Towns of Moultonboro and Center Harbor, but also the Counties of Carroll and Belknap, and on the east by the land of a person not involved in this suit. The landing place is approximately 380' in depth from the highway to the Lake and about 132' in width. There is a road running from the State highway, across the westerly half of the landing place, to the Lake, and known as the `Bean Road Extension.' There is a two story building at the northerly end of the landing place, facing the highway.
"The defendant's boathouse is erected on stone cribs in the Lake, with its northerly end about 82' southerly from the shore of the landing place; it is approximately 38' long in a north-south direction, and about 22' wide; it is approximately opposite the midpoint of the shore line of the landing place . . . .
"In 1960 the defendant purchased a boathouse which was situate in the same location where his present one is, was about 36' by 18', and was then in a dilapidated condition, having been erected around 1907 or 1908. The defendant had that one removed, both the building and the cribs, and a new one erected in the spring of 1961.
"The plaintiff Town, through a selectman, notified the defendant's contractor on March 3, 1961, and the defendant on March 4, 1961, not to erect a new boathouse; at that time the old boathouse had been removed, and part of the new cribbing was in, but work had not started on the new building. The plaintiff instituted this suit on March 29, 1961, and in the meantime the defendant had substantially completed the new boathouse . . . .
"The Town claims title to the landing place by virtue of a layout as such. The Moultonboro Charter of 1763 (N.H. State Papers, Vol. XXVII, Pages 521, 523) provided in part that `. . . at the end of the highways at the Pond suitable Lots or Parcels of Land shall be left for landing places . . . .' At the Town meeting on March 10, 1818, a committee of three was appointed to `look after the landing place near Center Harbor,' and in 1819 the committee recorded in the Town Records its report that it had attended to its duty to lay out a landing place agreeable to the Charter, together with a plan of the landing place as laid out, which is the one described above.
"In 1929 the Town gave one Charles Leighton a 10 year lease of a parcel of land at the northeasterly corner of the landing place; the two story building is on this parcel of land. In 1929 the Town gave a life lease to one Edward Nichols of another parcel from the landing place, southerly of the parcel leased to Leighton, and running as far southerly as a line 20' northerly of the shore line, with the right to use the shore in common with the public, and let boats therefrom."
Nighswander, Lord Bownes (Mr. Hugh H. Bownes orally), for the plaintiff.
Wescott Millham (Mr. Harold E. Wescott orally), for the defendant.
The plaintiff municipality claims title to the landing place by virtue of its charter of 1763 (N.H. State Papers, Vol. XXVII, p. 521, 523); a vote of the town meeting on March 10, 1818 appointing a committee of three to "look after the landing place near Center Harbor"; and the recording of the committee report of 1819 in the town records stating that it had attended to its duties to lay out a landing place agreeable to the charter together with a plan thereof.
The defendant maintains that the layout was illegal, and that there was no authority for such a layout by a town committee. While it is true that early land titles in New Hampshire are permeated with certain informalities and some indefiniteness, titles, derived from public grants, have been given a presumption of regularity. Bow v. Allenstown, 34 N.H. 351. See also, the historical construction placed on early titles in Hampton v. Palmer, 102 N.H. 127. In addition to the presumption of regularity in such cases the burden has been placed on the contestant to show a better title than the town in order to successfully maintain his claim. See Fowler v. Owen, 68 N.H. 270. This has tended to alleviate uncertainty of title which would otherwise result. Cushing v. Miller, 62 N.H. 517. See Akagi, The Town Proprietors of the New England Colonies (1924). "Few states have had as many difficulties concerning the derivation of private land titles as New Hampshire. The indefiniteness and overlap of early charters, the conflicts between grants made by the King, by the New England Council, by Indians, by Mason, by New Hampshire towns and colony and by Massachusetts Bay have resulted in a century and a half of considerable litigation." 1 Powell, Real Property, s. 57, p. 162 (1949); Sanborn, New Hampshire, p. 24 (1904); Fry, New Hampshire as a Royal Province, pp. 209-320 (1908). In spite of these difficulties early titles based on legislative and municipal activity have been accorded a presumption of validity when subjected to attack in the Twentieth Century. Dana v. Craddock, 66 N.H. 593.
In addition to its record title mentioned above the plaintiff municipality has exercised dominion over the landing place by various leases executed in 1929 and by its actions in attempting to prevent the defendant from rebuilding a boathouse in the waters of Lake Winnipesaukee situate in front of the landing place on the shore of the lake. We conclude, as did the Trial Court, that the plaintiff had standing to bring this petition for injunction and that its title in fee is valid. See Cilley v. Cayford, Smith Report 150 (1807). While it is true that acts of dominion by the plaintiff municipality have not been as extensive between 1818 and 1929 as they had thereafter, this is not fatal to its title. "Experience does not justify the presumption that the community at large will assert their public rights, with the same promptness with which individuals assert their private rights. The opposite is notoriously true." State v. Company, 49 N.H. 240, 252; State v. Stafford Company, 99 N.H. 92, 97.
The Trial Court made alternative findings and rulings on the question of the plaintiff's laches in maintaining its rights against the defendant. On the evidence it decided that the town used seasonable diligence in protecting its rights and was not guilty of laches and this finding is supported by the evidence. The defendant purchased the boathouse in a dilapidated condition in 1960 for $350. He was warned by the selectmen of the town after he had expended $1500 in rebuilding a new boathouse to discontinue this operation but he continued to complete it. The defendant's title is not traced to any grant from the town (cf. Cheever v. Roberts, 82 N.H. 289, 291) and there has been no action by the town which could be construed as encouraging the rebuilding of the boathouse in front of the landing place. Inasmuch as the town's right of access to and from the landing place will be adversely affected by the defendant's acts, the granting of an injunction against the defendant was proper. Hoban v. Bucklin, 88 N.H. 73; Hartford v. Gilmanton, 101 N.H. 424; RSA 477:34.
The Trial Court as an alternative ruling on laches held that this defense was not available against the town for the same reason that is was not available against the State. Reliance was placed on the following quotation from State v. Stafford Company, 99 N.H. 92, 97: "Since the State's rights in land and waters are not always enforced and protected with the same alacrity as private rights . . . the Legislature has provided that no person can acquire title to State lands by adverse possession . . . For the same reason it has been decided that the State does not forfeit or lose its rights to public lands and waters by laches, estoppel or waiver." We find it unnecessary to determine this question because in any event the Trial Court's ruling that laches did not apply on the facts of this case is supported by the record. Hampton v. Palmer, 102 N.H. 127; Hampton v. Seabrook, 98 N.H. 84, 89.
Exceptions overruled.
All concurred.