THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , David K. Sorak & a. v. Alan E. O'Neal & a., the court on June 14, 2011, issued the following order: The petitioners, David K. Sorak and Glenda K. Sorak, appeal an order of the trial court, following a bench trial and view, that denied their petition to quiet title and granted the cross-petition of the respondents. On September 22, 2010, we remanded this case to the trial court to rule upon a settlement agreement between the petitioners, and respondents Sarah L. Miller, Trustee of the Sarah L. Miller 1988 Trust, and Martin J. Miccio; the trial court approved the settlement. Accordingly, we now consider the petitioners appeal of the trial court s order as to the remaining respondents, Alan and Carolyn O Neal. We affirm. In an action to quiet title, the burden is on each party to prove good title as against all other parties whose rights may be affected by the court s decree. Brentwood Volunteer Fireman s Assoc. v. Musso, 159 N.H. 461, 463 (2009). We will uphold the trial court s ruling unless it is legally erroneous or unsupported by the evidence, mindful that it is within the province of the trial court to accept or reject any evidence presented at trial, to evaluate the credibility of the witnesses, and to resolve conflicts in the testimony. See id.; Cook v. Sullivan, 149 N.H. 774, 780 (2003). The petitioners first argue that the trial court erred by granting the crosspetition without finding that [they] had other reasonable access to their land. The petitioners cite no authority, however, for the proposition that alternative reasonable access is required before the court may quiet title to a portion of land through which an abutting landowner seeks access. Nor are we aware of any. The petitioners next argue that the trial court erred by failing to understand, analyze and apply the concept of sawmill privilege. The O Neals expert opined, however, that their predecessors in interest acquired not merely a mill privilege, but title to the disputed property in fee. He further opined that the area west of the Lamprey River referenced in the petitioners chain of title was at a point north of the disputed area in which the petitioners contend the O Neals acquired only a mill privilege. Under these circumstances, we cannot conclude that the trial court erred as a matter of law by not applying the concept of sawmill privilege.

2 The petitioners next argue that the trial court erred by accepting new evidence, following the close of the record, through post-trial memoranda, and by relying upon such evidence in its final order. We note that the alleged new evidence cited by the petitioners appears not to be evidence, but rather proposed findings of fact and rulings of law upon which the trial court did not rule. Even if the proposed findings and rulings could be construed as evidence, however, the petitioners did not argue in their motion for reconsideration that the trial court erred by relying upon new evidence submitted in post-trial memoranda. It is the petitioners burden on appeal to establish that they raised their arguments before the trial court in the first instance. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also N.H. Dep t of Corrections v. Butland, 147 N.H. 676, 679 (2002) (appealing party is required to raise any unanticipated errors in the trial court s final order in a motion for reconsideration). Here, they have not carried their burden. The petitioners also argue that the trial court unsustainably exercised its discretion by finding that their property is bounded to the west solely by the Lamprey River. We have reviewed the record in this case, and while there may have been conflicting evidence submitted at trial, the record supports the trial court s ultimate finding. We defer to the trial court s resolution of conflicts in the evidence presented at trial. See Cook, 149 N.H. at 780. To the extent the petitioners contend that the trial court, in fact, refused to listen to, or understand, the testimony, the record does not support their contention. To the contrary, the record reflects that the trial court considered the evidence submitted at trial, found that [t]he question was a relatively close one, and concluded that the [respondents] were entitled to prevail because the [petitioners] had not met their burden of proof. This ruling was neither unsupported by the evidence nor erroneous as a matter of law. The petitioners next argue that the trial court erred by considering statements made at scheduling and pre-trial conferences as evidence, and relying upon such statements in its final order. The only off-the-record statement cited by the petitioners in their motion for reconsideration, however, was their alleged statement that they would agree to convey any land they claim they own on the westerly side of the Lamprey River to any or all of the defendants in return for an easement. With respect to that statement, the trial court, in denying the petitioners motion for reconsideration, reasoned that its ultimate decision in this case was not based upon the easement issue. Under these circumstances, the petitioners have not established that they were prejudiced by the trial court s finding that they would agree to convey property to the west of the river in exchange for an easement. See Kessler v. Gleich, 156 N.H. 488, 494 (2007). To the extent the petitioners contend that the trial court relied upon other unrecorded statements at chambers conferences, they were obligated to bring such issues to the trial court s attention in their motion for reconsideration. See Butland, 147 N.H. at

3 The petitioners next argue that the trial court erred by finding that the equities favored the O Neals because they owned their property at least twenty years longer than the petitioners had owned their property, and because the petitioners predecessors had not used the disputed property in a manner that would indicate ownership. The petitioners argue that the trial court erred because the evidence does not support a finding of anything more than an occasional, trespassory use of the disputed property by the O Neals so as to establish adverse possession. See Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 34 (2007). Even assuming, without deciding, that the trial court based its ruling upon the O Neals claim of adverse possession, we agree with the O Neals that the evidence would support a finding that the parties and their predecessors recognized the river as their boundary for more than twenty years. See Mastroianni v. Wercinski, 158 N.H. 380, 383 (2009). The petitioners next argue that the trial court erred by finding that [n]othing in their deed suggested they had... access to their property over the disputed property, that [t]his perhaps explains why [they] were able to purchase the property for the price that they paid for it, that they knew or should have known that litigation was a possibility, and that they took a chance when they purchased the property. Even assuming that the trial court erred by making these findings in its final order, in its order denying the petitioners motion for reconsideration, the trial court observed that its ultimate finding that the [petitioners] did not meet their burden of proof with respect to the location of their land had absolutely nothing to do with the possibility of litigation at the time of purchase. We conclude that the petitioners have not established that they were prejudiced by these findings. See Kessler, 156 N.H. at 494. The petitioners next argue that the trial court unsustainably exercised its discretion by refus[ing] to review the language of the deeds in chains of title. The record reflects that the parties expert witnesses testified in great detail regarding numerous deeds in the parties chains of title. In its final order, the trial court noted that the parties requests for findings of fact and rulings of law would have required it to review all of the language in all of the deeds in their chains of title before it [could] determine if a particular Request [was] true or false, and that while doing so may have resulted in some findings supporting the petitioners and other findings supporting the respondents, its ultimate decision would not have changed. In its order denying the petitioners motion for reconsideration, the trial court further elaborated that while the petitioners offered some evidence supporting their position, the respondents offered several deed descriptions which suggest[ed] that the [petitioners] owned no property on the westerly side of the Lamprey River, and that while [t]he question was a relatively close one, the petitioners had not carried their burden of proof. Upon this record, we reject the petitioners contention that the trial court refused to review the language of the deeds. Rather, the trial court reviewed the 3

4 deeds within the context of the conflicting expert testimony, but declined to rule specifically upon the parties requests for findings of fact, concluding that to do so would have been unproductive. Because the trial court s narrative orders provide a sufficient basis for reviewing its rulings in this case, we conclude that the trial court did not unsustainably exercise its discretion by refusing to rule specifically on the requests for findings of fact and rulings of law. See Geiss v. Bourassa, 140 N.H. 629, (1996). The petitioners next argue that the trial court erred by failing to recognize that property conveyed along a road by a common grantor provides an implied right of access along that road. The O Neals counter in part that the petitioners never raised a claim for an implied right of access in their petition. We note that the petitioners have not included their petition in their appendix. A party is generally not entitled to relief on the basis of a legal theory the party did not plead. See Morancy v. Morancy, 134 N.H. 493, 497 (1991) (a defendant is entitled to have the case tried and decided on the grounds alleged in the plaintiff s writ). It is the petitioners burden on appeal to submit so much of the record as is necessary to decide the issues they are raising, and to establish that they raised those issues at trial. See Bean, 151 N.H. at 250. Because the record does not reflect that the petitioners pleaded an implied right of access as a basis for relief, the trial court did not err by failing to grant them relief on that basis. Citing Adams v. Mellian, 99 N.H. 140 (1954), the petitioners next argue that the trial court erred by granting the O Neals cross-petition to quiet title without also ruling that they had met their burden of proof regarding the location of their boundary. In Adams, the plaintiff sought to establish a common boundary between his property and an adjoining property occupied by the defendant, and claimed title to the property on which the defendant s house was located. Adams, 99 N.H. at 141. After finding that the plaintiff had failed to satisfy the burden of proof, the master recommended that the petition be dismissed, but that a boundary line be established between the parties properties. Id. The defendant challenged the master s authority to establish the boundary after having concluded that the plaintiff had failed to carry the burden of proof, and we agreed, ruling that the superior court had no authority to establish a boundary line in a location disputed by both parties, without one or the other party sustaining the burden of proof. Id. at 142. The effect of our opinion in Adams was to leave the defendant in actual possession of the disputed property. See Frew v. Dasch, 115 N.H. 274, 277 (1975) (discussing Adams). Like the defendant in Adams, the effect of the petitioners failure to carry their burden of proof is to leave the O Neals in possession of property to which no party, other than the petitioners, claims an interest. See id. Unlike the defendant in Adams, however, the O Neals did not simply seek to maintain the status quo by defending against the petitioners claims, but affirmatively sought relief on their own by filing a cross-petition. The superior court is presumed to 4

5 have made all subsidiary findings necessary to support its general decree. See Burke v. Pierro, 159 N.H. 504, 510 (2009). While the trial court may not have made an express finding that the O Neals met their burden of proof, such a finding is necessarily implied by its granting of their cross-petition. See id. Because the record supports such an implied finding, the trial court did not err by granting the cross-petition to quiet title. Finally, the petitioners argue that the trial court erred by not making sufficient findings of fact to support its ruling. As we noted above, we have reviewed the trial court s final order and order denying the petitioners motion for reconsideration, and conclude that the orders contain sufficient findings to support the trial court s rulings, and to provide a basis for our review of the questions of law arising in the case. See Geiss, 140 N.H. at Affirmed. DALIANIS, C.J., and DUGGAN and LYNN, JJ., concurred. Eileen Fox, Clerk 5