Opinion
No. 4723.
Argued June 2, 1959.
Decided June 30, 1959.
1. Where the defendant claimed the right to use by adverse possession a certain strip of plaintiffs' land located on the latter's side of a granted common right of way between the properties of the parties, it was incumbent on the defendant to prove by a balance of probabilities twenty years' adverse, continuous, uninterrupted use thereof in such manner as to give notice to the plaintiffs and their predecessors in title that an adverse claim was being made to it.
2. Defendant's usage of such strip of land by permission of the plaintiffs or their predecessors in title for over twenty years may not support a claim of easement by prescription.
3. The question of whether such usage was permissive rather than adverse was for the Trial Court to determine from the manner, character and frequence of the exercise of the right and the situation of the parties.
BILL IN EQUITY, to restrain the defendant from trespassing on plaintiffs' land lying northerly of and adjacent to a common right of way situate on each side of the boundary line between the properties of the parties on the easterly side of Elm Street in Claremont, and also to have the defendant remove certain obstructions from the right of way. The defendant requested, by way of affirmative relief, that the respective rights of the parties relative to the right of way to be used in common by them be determined.
After hearing the Court (Keller, J.) made certain findings and rulings and decreed in part as follows:
"The plaintiffs own a lot, with a house and garage thereon, on the easterly side of Elm Street in Claremont; the garage is easterly of the house. The defendant likewise owns a lot, with a house, and a garage easterly of the house, on the easterly side of Elm Street, and the defendant's northerly bound is the plaintiffs' southerly bound; this dividing line is 132.23' long, runs in a general easterly direction from the street, and forms an angle 91 degrees 34' at the plaintiffs' southwesterly corner. There is a gravel driveway running from Elm Street, along the dividing line between the two lots, to the rear of the houses, and serving the two garages; this driveway is approximately 12 1/2' wide, and approximately 10' of the width is on the plaintiffs' side of the boundary line and the other 2 1/2' on the defendant's side of the line. The driveway goes easterly approximately to an extension, in a northerly direction, of the line of the westerly side of defendant's garage.
"The plaintiffs acquired title to their property by deed of . . . Theriault[s] dated November 28, 1950; the only reference in this deed to any right of way is a statement, coming after the description of the property, that it is `subject to existing rights of way'. The Theriaults purchased from one Hurd by deed dated August 19, 1937.
"The defendant acquired . . . title by deed of . . . Langevin . . . dated December 10, 1947. This deed . . . has the following: `This conveyance is made subject to a right of way four feet (4') wide on the northerly side of the above described premises running from said Elm Street back to land formerly owned by . . . Eastman. Also contained in this conveyance is a right of way over and upon a strip of land four feet (4') wide northerly of and adjacent to the premises above described' . . . . Langevin acquired title from one Whipple, by deed dated October 11, 1926, with the . . . same provision relative to rights of way.
"There is a cement curb, and on the top of it a wooden picket fence, on the plaintiffs' property, running easterly from Elm Street, to the back of the plaintiffs' lot, and separated from the northerly line of the existing driveway by a 1' grass plot. The defendant's house is on the front part of her lot and its northerly side is separated from the southerly line of the existing driveway by a 2' cement apron along the northerly side of the house and by a grass plot, approximately 4 1/2' wide. The over-all distance between the northerly side of the defendant's house and the fence is approximately 20'.
"Approximately 1 1/2' of the grass plot on the northerly side of the defendant's house is within the 4' right of way referred to in the defendant's deed as being on the northerly side of defendant's premises; also the defendant's garage extends into it, approximately 2/3' at the northwesterly corner and approximately 2 2/3' at the northeasterly corner; further, the cement slab at the bottom of the cement steps leading to a porch at the northeasterly corner of the defendant's house extends into this right of way referred to in the defendant's deed.
"There is another driveway on the defendant's lot, south of the house, leading from Elm Street to the garage in the rear, and which can be used easily . . . .
"The plaintiffs do not dispute that the defendant has a four foot right of way over their property as described in the defendant's deed. The plaintiffs do contest the defendant's claim that this has been widened by adverse use. Leda Langevin owned the defendant's property from 1926 to 1947. From 1926 to 1931 one of her sons was at home, and during this period the driveway, as it now exists, was used extensively . . . From 1931 until the plaintiffs' immediate predecessor in title purchased and moved onto the plaintiffs' property in 1937, this particular son of the Langevins was not at home, but he visited his folks and on such occasions he used the driveway . . . From 1937 until the defendant purchased, in 1947, the Langevin son used this driveway when he visited home, and it was also used by people going to see the Langevins . . . From 1947 up to the time of the hearing the defendant has extensively used the driveway to its full width; in particular, it has been used by the defendant, the defendant's family, friends and business invitees . . . The driveway has existed approximately as it is today for about 34 years. The plaintiffs' immediate predecessor in title erected this curb and fence in 1948.
"Mr. Langevin pointed out the boundary line between the two properties to . . . Theriault, the plaintiffs' predecessor in title, and said there was a right of way 4' each side of the boundary line . . . Theriault likewise pointed out the boundary line and stated that there was a 4' right of way on each side when he sold to the plaintiffs. Frank Ucietowski has shoveled this driveway, to its full width, on several occasions since he has owned the property, and in 1952 he and Mr. Novak covered the driveway with gravel.
"In determining whether the defendant's right of way over the plaintiffs' land has been widened by adverse uses, one question is whether or not any additional use was under a claim of right . . . .
"Mrs. Langevin owned the defendant's premises from 1926 to 1947. Mr. Langevin told the plaintiffs' predecessor that there was a 4' right of way each side of the boundary line. When Mrs. Langevin conveyed to the defendant, she only undertook to convey a 4' right of way, the same as her predecessors conveyed to her. The Langevins and their tenants used principally the drive on the southerly side of the house. The driveway in question was used not only in connection with the defendant's house but also in connection with the plaintiff's house. Considering these facts, the fact that the defendant and her predecessors had a 4' right of way by grant, and all of the other pertinent evidence, it cannot be found that the use of the plaintiffs' lot, beyond the 4' right of way, during the ownership of Leda Langevin, was under a claim of right. Consequently, the defendant has a right of way over the plaintiffs' lot to a width, and only to a width, of 4' northerly of the boundary line.
"The plaintiffs claim that they have a 4' right of way over the defendant's land on the south side of the boundary line. even though . . . [the] statement in the deed does not designate in whose favor the right of way runs, taken into consideration with the other pertinent evidence it is construed as being in favor of the plaintiffs' premises . . . . The plaintiffs have used the driveway continuously since they have lived there.
"Although approximately 1 1/2' along the southerly side of this right of way, until it reaches the steps of the defendant's porch has been covered with grass, vehicles whose tires went along the extreme southerly edge of the driveway would . . . extend over . . . to a certain extent, and the admissions are of a 4' right of way. The Langevins used the grass plot north of their house, including the 1 1/2' of grass in the right of way, to sit on in the summer . . . the Novaks made a similar use of that plot when they first moved in; also the Novaks re-seeded this grass plot. However, it does not appear that such uses interrupted or interfered with the use of the right of way by the plaintiffs and their predecessor.
"Although the cement slab at the bottom of the defendant's cement steps extends into the plaintiffs' right of way, there is no evidence that this slab in any way interferes with the use of the right of way. The grass does not constitute an obstruction.
"It is decreed that:
"1. Frances Novak . . . has a right of way, on foot and/or with vehicles, to and from her said premises, over that part of the premises [of Ucietowski] . . . which lies within four (4) feet of the southerly bound thereof, and extending from Elm Street to the easterly bound of said Ucietowski property. The said Frances Novak, her heirs and assigns, are enjoined and restrained from using or entering upon said Ucietowski property except in accordance with this right of way.
"2. Frank and Antonina Ucietowski . . . have a right of way, on foot and/or with vehicles, to and from their said premises, over that part of the premises . . . which lies within four (4) feet of the northerly bound of said Novak property extending from Elm Street to a point 25' westerly of the easterly bound of said Novak property. Frances Novak, her heirs and assigns, are enjoined and restrained from obstructing or in any way interfering with the use of said right of way.
"The prayer for the removal of obstructions is denied."
Defendant's exceptions to the denial of certain of her requests for findings of fact and rulings of law and to the Court's decree were reserved and transferred.
William E. Nolin (by brief and orally), for the plaintiffs.
Shulins Duncan (Mr. Duncan orally), for the defendant.
The first issue to be considered is whether the defendant's right of way over plaintiffs' land has been widened by adverse use to include so much of the plaintiffs' property as lies within the graveled portion of the driveway. This graveled driveway is approximately 12 1/2 feet wide and approximately 10 feet of the width is on plaintiffs' side of the boundary line.
Defendant was granted by deed a right of way "over and upon a strip of land four feet (4') wide northerly of and adjacent to the premises above described," the latter being plaintiffs' property. The Trial Court found that "the driveway has existed approximately as it is today for about 34 years." The nature of the use made of it by the defendant and her predecessors in title is the controlling factor in determining whether a right of adverse use has been gained in the six-foot strip north of the granted four-foot right of way.
The burden was on the defendant to prove by a balance of probabilities twenty years' adverse, continuous, uninterrupted use of the strip north of the granted right of way in such a manner as to give notice to the record owner that an adverse claim was being made to it. Alukonis v. Kashulines, 97 N.H. 298, 299. Gowen v. Swain, 90 N.H. 383, 385. The nature of the use must be such as to show that the owner knew or ought to have known that the right was being exercised, not in reliance upon his toleration or permission, but without regard to his consent. Wason v. Nashua, 85 N.H. 192, 198. A permissive use no matter how long or how often exercised cannot ripen into an easement by prescription. Manos v. Day Cleaners, Inc., 91 Ohio App. 361; Foley v. Lyons, (R. I.) 125 A.2d 247, 249.
Whether the use has been adverse or permissive was a matter of fact to be determined by the Trial Court. Burnham v. McQuesten, 48 N.H. 446; Gowen v. Swain, supra. The nature of the use may be inferred from the manner, character and frequence of the exercise of the right and the situation of the parties. Smith v. Putnam, 62 N.H. 369; Jean v. Arsenault, 85 N.H. 72, 73.
Leda Langevin owned defendant's property from 1926 to 1947. Her husband pointed out the boundary line between the two properties to Theriault, plaintiffs' predecessor in title and told him there was a four-foot right of way on each side of the boundary line. The Langevin deed to defendant in 1947 by its language conveyed only a four-foot right of way on the adjoining land. Theriault testified he gave the Novaks permission to use the driveway. Plaintiff Frank Ucietowski has shoveled this driveway to its full width and in 1952 he and John Novak, co-owner with the defendant and now deceased, covered the driveway with gravel. This driveway was used not only in connection with defendant's house but also with that of the plaintiffs. The defendant has another right of way on the south side of her house.
The Trial Court's findings, rulings and decree that Frances Novak, the defendant, "has a right of way, on foot and/or with vehicles, to and from her said premises, over that part of the premises . . . [of plaintiffs] which lies within four (4) feet of the southerly bound thereof, and extending from Elm Street to the easterly bound of said Ucietowski property" were warranted by the evidence and are sustained. Burnham v. McQuesten, supra; See Pike v. Hartford, 100 N.H. 473, 476.
The second issue is whether the plaintiffs, through non-user and abandonment by them and their predecessors, have lost the right to use so much of the four-foot right of way on defendant's property as has been grassed over. The Court found that "approximately 1 1/2 feet of the grass plot on the northerly side of the defendant's house is within the four-foot right of way referred to in the defendant's deed as being on the northerly side of the defendant's premises."
Defendant concedes that mere non-user of this four-foot right to its full length would not constitute an abandonment of their easement therein. New England Box Co. v. Wood, 81 N.H. 124. She contends however that non-user coupled with a use by her and her predecessors in title which is adverse to its enjoyment by the plaintiffs and their predecessors for the space of time long enough to create a prescriptive right would destroy the right in that part of the right of way.
There was evidence that the grass strip has existed in substantially the same condition for thirty-four years. The Langevins used the grass strip to sit on at times. The Novaks have placed chairs on it occasionally and have put the baby on a blanket thereon. They reseeded it once.
The burden was on the defendant to prove a twenty years' adverse, continuous, uninterrupted use of his strip in such a manner as to give notice to the plaintiffs and their predecessor in title that an adverse claim was being made of it. Alukonis v. Kashulines, 97 N.H. 298. The Court found "it does not appear that such uses interrupted or interfered with the use of the right of way by the plaintiffs and their predecessor." We cannot say as a matter of law that the evidence was of such a character that a contrary conclusion was compelled.
Decree affirmed.
All concurred.