THE STATE OF NEW HAMPSHIRE SUPREME COURT. Robert Jesurum

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT Robert Jesurum v. WBTSCC Limited Partnership; William H. Binnie, Trustee of the Harrison Irrevocable Trust; Town of Rye, New Hampshire; and State of New Hampshire Case No BRIEF FOR WBTSCC LIMITED PARTNERSHIP AND WILLIAM H. BINNIE, TRUSTEE OF THE HARRISON IRREVOCABLE TRUST APPELLANTS Benjamin T. King, Esquire, (NH Bar #12888) DOUGLAS, LEONARD & GARVEY, P.C. 14 South Street, Suite 5 Concord, NH (603) ORAL ARGUMENT BY: Benjamin T. King, Esq. i

2 TABLE OF CONTENTS Questions Presented Whether the trial court erred by finding that the petitioner met his burden to prove that he and the public hold prescriptive easement rights over the appellant s land. Appendix ( App. ) at pp Whether the trial court erred in determining the scope of any prescriptive easement rights that the petitioner and/or the public may hold over the appellant s land. App. at pp ; Transcripts of June 25, 2015, and June 26, 2015, hearings Whether the trial court erred by awarding the petitioner attorney s fees under the substantial benefit exception. App. at pp Whether the trial court erred by retaining jurisdiction over the case to rule on whether to award the petitioner attorney s fees after the appellants had perfected their Appeal. App. at pp Constitutional Provisions and Statutes Involved in the Case... 1 Statement of the Case... 1 Statement of Facts... 3 Summary of Argument... 9 Argument Conclusion Statement Regarding Oral Argument i

3 Certificate of Attachment of Appealed Decision Certificate of Service ii

4 Cases TABLE OF AUTHORITIES Altieri v. Dolan, 423 A.2d 482 (R.I. 1980) Brick House Café & Pub, LLC v. Callahan, 151 S.W.2d 838 (Mo.App.W.D. 2004) Carnahan v. Moriah Property Owners Ass n, Inc., 716 N.E.2d 437 (Ind. 1999) Cataldo v. Grappone, 117 N.H (1977)... 14, 27, 36 Claremont Sch. Dist. v. Governor, 144 N.H. 590 (1999) Concord Group Insurance Co s v. Sleeper, 135 N.H. 67 (1991) Cote v. Eldeen, 119 N.H. 491 (1979)... 14, 27, 29 Del Norte, Inc. v. Provencher, 142 N.H. 535 (1997) Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2d 128 (Del. Ch. 2006) Douglas v. Knox, 502 S.E.2d 490 (Ga.App. 1998)... 19, 26 Downing House Realty v. Hampe, 127 N.H. 92 (1985) Frost v. Comm r, N.H. Banking Dep t, 163 N.H. 365 (2012) Greenan v. Lobban, 143 N.H. 18 (1998)... 11, 17, 19 In the Matter of Nyhan & Nyhan, 151 N.H. 739 (2005) Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271 (1985) Merrimack Sch. Dist. V. Nat l School Bus Serv., 140 N.H. 9 (1995) N.H. Motor Transport Assoc. v. State, 150 N.H. 762 (2004) Price v. Eastman, 128 P.2d 725 (Alaska 2006)... 28, 30, 31, 32 Salminen v. Jacobson, 83 N.H. 219 (1928) Sandford v. Town of Wolfeboro, 143 N.H. 481 (1999)... passim Silva v. Botsch, 121 N.H (1981)... 15, 34, 35, 36 Sundell v. Town of New London, 119 N.H. 839 (1979)... 12, 21, 22 iii

5 Taber v. Town of Westmoreland, 140 N.H. 613 (1996)... 15, 16, 35 Town of Warren v. Shortt, 139 N.H. 240 (1995)... passim Wason v. Nashua, 85 N.H. 192 (1931) Statutes RSA 491:8-a... 3 RSA 508: Other Authorities 17 New Hampshire Practice: Real Estate at 8.02 [C] (1 st ed. 2003) New Hampshire Practice: Real Estate at 8.02 (1 st ed. 2003) Restatement (Third) of Property Servitudes 4.10 cmt. c (2000) Restatement (Third) of Property Servitudes 4.10 cmt. h (2000)... 28, 30 The Law of Easements and Licenses in Land at 5: , 25 iv

6 Questions Presented 1. Whether the trial court erred by finding that the petitioner met his burden to prove that he and the public hold prescriptive easement rights over the appellant s land. Appendix ( App. ) at pp Whether the trial court erred in determining the scope of any prescriptive easement rights that the petitioner and/or the public may hold over the appellant s land. App. at pp ; Transcripts of June 25, 2015, and June 26, 2015, hearings. 3. Whether the trial court erred by awarding the petitioner attorney s fees under the substantial benefit exception. App. at pp Whether the trial court erred by retaining jurisdiction over the case to rule on whether to award the petitioner attorney s fees after the appellants had perfected their Appeal. App. at pp Constitutional Provisions and Statutes Involved in the Case RSA 491:8-a RSA 508:2 The text of these statutes is contained within the Addendum. Statement of the Case Mr. Jesurum initiated this matter by filing a January 29, 2013, Petition for Declaratory Judgment, Quiet Title, Injunctive Relief, and Other Equitable Relief. App. at pp In pertinent part, Mr. Jesurum s Petition asked the Court to find that Mr. Jesurum and the public 1

7 held prescriptive easements and easements by necessity over a small area of the Wentworth s property that the Town of Rye dubbed Sanders Poynt. Both Mr. Jesurum and the Wentworth filed motions for summary judgment, Mr. Jesurum arguing that the undisputed material facts established that he and the public held prescriptive easements and easements by necessity over the small area (App. at pp ), and the Wentworth arguing that the undisputed facts established no necessity and that the evidence that the use by Mr. Jesurum and the public was permissive defeated any claim to prescriptive rights (App. at pp ). By Order dated December 1, 2014, the trial court granted Mr. Jesurum summary judgment on his claim to prescriptive rights in favor of himself and the public, in an Order wherein the trial court somehow squarely rejected the contention that permissive use was established by the undisputed evidence that the interactions between Wentworth personnel on the one hand, and the persons crossing the subject area on the other hand, were uniformly friendly and neighborly. Addendum at pp The trial court did not address Mr. Jesurum s claim to easements by necessity. On June 25 and June 26 of 2015, the trial court held a hearing on the scope of the prescriptive right. By Order dated August 26, 2015, the trial court found that Mr. Jesurum and the public held prescriptive rights over the whole area that Mr. Jesurum had claimed. Addendum at pp The trial court ordered the Wentworth to restore the area to the condition it was prior to October Id. at p. 34. The trial court declined to award Mr. Jesurum attorney s fees in the August 26, 2015, Order. Id. at p

8 The Wentworth perfected its Rule 7 Appeal on September 25, Notwithstanding the filing of the Appeal, the trial court proceeded to issue an October 15, 2015, Order on the petitioner s Motion for Reconsideration awarding the petitioner attorney s fees under the substantial benefit exception. Id. at pp The trial court denied the Wentworth s Motion to Strike and/or Reconsider the October 15, 2015, Order by Order dated December 11, Id. at pp The Wentworth then filed an Assented-To Motion to Add Questions to Rule 7 Notice of Mandatory Appeal, adding claims of error with respect to the award of attorney s fees. This Court allowed the Amended Notice of Appeal by Order dated January 22, App. at p Statement of Facts A. Summary Judgment The appellant first recites the facts underlying the trial court s erroneous grant of summary judgment to Mr. Jesurum on the question of whether Mr. Jesurum and the public acquired prescriptive rights over the Wentworth s land. WBTSCC Limited Partnership acquired the property containing the Wentworth By The Sea golf course in App. at p. 65 at 2. From the time the Wentworth acquired the property until October of 2012, the Wentworth permitted the public to cross a small area of the golf course property that the Town dubbed Sanders Poynt in order to access Little Harbor. Id. During this time period the Wentworth also permitted members of the public to park their cars on golf course property in the so-called Sanders Poynt area. Id. at pp at 3. The Wentworth permitted these uses of its property, and has permitted other public use of its property over the years, out of a desire to be a good citizen and a good neighbor. Id. at p. 66 at 4. Unfortunately, the President of Wentworth By The Sea Country Club, Inc., William H. Binnie, and Wentworth personnel observed by the fall of 2012 that the public was not respecting 3

9 the bucolic golf course property that the Wentworth had permitted the public to use. Mr. Binnie observed, and WBTSCC Limited Partnership personnel reported to him, that members of the public let their dogs run unleashed on the property and that they left behind litter, garbage and dog waste in the subject area. Id. at p. 66 at 5. Mr. Binnie further observed, and WBTSCC Limited Partnership personnel reported to him, that members of the public left debris behind when they parked their vehicles on Wentworth property in the subject area. Id. Mr. Jesurum himself acknowledged that he observed litter in the area. Id. at p. 82. In order to protect the property from such abuses, Mr. Binnie decided to revoke the permission that the Wentworth had extended to the public to use the subject premises. Id. at pp In October of 2012, pursuant to a Building Permit issued by the Town of Rye, the Wentworth constructed a fence along Wentworth Road. Addendum at p. 3. The Wentworth also made some landscaping changes, adding bushes and placing boulders near the side of Wentworth Road. Id. Mr. Jesurum claimed prescriptive easement rights in favor of himself and the public over a parcel of land owned by the Wentworth bounded by a golf course fence, Wentworth Road, and a stone wall marking the boundary of the old Allemedinger property. App. at p. 72. In support of his claim, Mr. Jesurum testified in his deposition that he walked the subject land almost on a daily basis beginning in 1990 and continuing until late October of 2012 when the Wentworth installed the fence and placed the shrubbery and boulders. Id. at p. 74. Significantly, Mr. Jesurum admitted that, never in my entire experience of walking that land did I ever encounter an owner. Never. Id. at p. 75. Mr. Jesurum acknowledged that he never saw Mr. Binnie while he was on the subject land. Id. at p. 77. Additionally, Mr. Jesurum 4

10 was unable to state whether he ever saw any management personnel from the Wentworth when he was on the subject premises. Id. Mr. Jesurum failed to proffer any evidence in support of his summary judgment motion that any uses of the subject land, either by him or by the public, interfered in any way with the Wentworth s uses of the land. No one associated with the Wentworth ever prohibited anyone from using the small parcel of land at issue or withheld permission from anyone to do so, at any time between 1994 and October of 2012 a fact that was undisputed before the trial court on summary judgment. Mr. Jesurum admitted that between 1994 and October 15, 2012, no one associated with the Wentworth ever told him that he could not be on the subject land. Id. at p. 78. He further admitted that he was not aware of any incident where anyone associated with the Wentworth ever told anyone not to use the subject premises. Id. at p. 79. Moreover, the interactions between the Wentworth and the public, including Mr. Jesurum, were consistently friendly and neighborly between 1994 and October 15, Mr. Jesurum testified that he would exchange friendly Good Mornings with Wentworth employees when he saw them while he traversed the subject premises. Id. at p. 77. Mr. Jesurum would wave at them, and they would wave back. Id. Mr. Jesurum agreed that his interactions with Wentworth employees while he was on the subject land could fairly be characterized as neighborly. Id. at p. 78. Mr. Jesurum further acknowledged that the word neighborly fairly characterized all the interactions that he observed between Wentworth agents and the public from 1994 until October 15, Id. at p. 82. Indeed, Mr. Jesurum had received a May 21, 1999, letter from Mr. Binnie wherein Mr. Binnie specifically remarked that both the Wentworth 5

11 and I want to be good neighbors to you and the many others who enjoy the vistas and the open space that the Wentworth represents. Id. at p B. Hearing On the Scope of Prescriptive Easement Rights The appellant here recites the facts elicited at the hearing on the merits pertaining to the scope of prescriptive easement rights that the trial court erroneously found existed by summary judgment. If the Court vacates the trial court s summary judgment Order as the appellant urges, it is unnecessary for the Court to consider the facts set forth in this section. The area in question consists of a parabolic-shaped area that was covered with gravel prior to October of 2012 and a trodden path extending from the gravel area to the beach. Addendum at p. 18. As one witness described the area, it was an open and a graveled area with a path to the beach. Transcript (Day One) at p. 13. The Wentworth has traditionally considered the area an access point and a staging area for the Wentworth. Transcript (Day 2) at p The trial court accepted as Petitioner s Exhibit 12 an August, 1984, Rockingham Planning Commission study that states in pertinent part that [i]nterviews suggest that the public has acquired a prescriptive use at this site by virtue of uninterrupted use for hundreds of years, primarily in search of shellfish and worms along the sides of Little Harbor. Transcript (Day 1) at p. 151 and App. at p The basis for this conclusion was that three people interviewed for the study said that they used the area to dig for worms. App. at p The trial court agreed that the scope of any prescriptive right as of 1984 was limited to digging for worms. Transcript (Day 1) at p Witness testimony credited by the trial court confirmed that, historically, public use of the subject area was limited to digging for worms and clams. Rye resident Michael Flanigan, who began accessing the area in the 1950s, testified that he would visit the area during that time 6

12 period and walk the trodden path to access the mud flats to dig for worms. Id. at pp. 121, 122, 125 and 131. Mr. Flanigan further testified that he had no other use for the subject area besides digging for worms. Id. at p. 126 (Q. Had you ever gone [to the area] for a reason different than to dig there? A. No..); Id. at p. 131 (Q. So your personal use of the area is limited to digging for worms? A. Just access for bait digging.). Rye resident Demetrios Yiannacopoulos testified that he has lived in the seacoast area all his life. Id. at p. 92. Mr. Yiannacopoulos likewise stated that the public used the small area only to dig for clams or for sea worms as recently as the 1980s. Id. at p Edward Clancy, who resided on Wentworth Road near the subject area between 1976 and 1984, testified that he used the area to harvest mussels. Designation of Record Testimony of Edward Clancy at p. 10 (Q. For what purposes did you personally use the area in question in the 76 to 84 time period? A. I would go down there and collect mussels. That was before the Red Tide scare or the concerns and I certainly harvested mussels down there..). Notably, while Mr. Clancy also testified that he crossed the land to access the golf course, this fact is irrelevant to the issue of easement rights because Mr. Clancy was a member of the golf course and therefore had a right to be on golf course property that arose from his golf course membership and not from any easement rights. Id. at pp Notwithstanding the evidence supporting that the original public uses giving rise to any prescriptive rights consisted of the public worming and searching for shellfish on the subject premises, the petitioner made claims for easement rights for members of the public to park on the subject area and to carry boats across the subject area to launch them. Witnesses mostly denied any personal knowledge of any person launching a boat from the subject premises before Id. at pp (Mr. Yiannacopoulos testified that he had no 7

13 personal knowledge of anyone launching a boat from the area in question before 1993.); p. 19 (Thomas Steele testified that he has never seen anyone launching kayaks from the subject area); p. 50 (Paul Connolly testified that he had no knowledge of people launching boats or kayaks from the subject area); p. 67 (Deborah White testified that she could not say for certain that she kayaked off the area before 1993); p. 87 (Heather Parker testified that she first observed people kayaking off the area in 1997); p. 113 (Eleanor Stanford testified that she had no personal knowledge of people using the area to launch kayaks before 1997); p. 120 (Kenneth Jennings admitted that he had no personal knowledge of the use of the area in question before 2000); pp. 127, 129 (Michael Flanigan testified that his only experience with the area was going across the property to dig bait. He testified that he had never seen anyone launch a boat from the area.); Transcript (Day 2) at p. 185 (Inger Arky testified that she had no knowledge of people launching kayaks from the subject area before 1997); Id. at p. 201 (Jason Bastille testified that he first observed people launching kayaks from the subject area in the late 1990s); Designation of Record Testimony of Edward Clancy at p. 9 (Edward Clancy admitted that he had no recollection of observing a canoe being launched from the subject area.). As for parking, the trial court made a somewhat vague finding that the public has parked in the subject area since the mid 1970s to early 1980s. Golf Superintendent Jason Bastille provided uncontroverted testimony that the Wentworth engaged in a number of uses of the subject premises over the years that would have interrupted the public s ability to park on the premises. Mr. Bastille testified that the Wentworth has used the subject area as a staging area for construction projects, interrupting public access to the area where the public parked. Transcript (Day 2) at p Mr. Bastille testified to a 1996/97 irrigation project during which the Wentworth stored a couple thousand feet of pipe in the area, which would have made it 8

14 difficult to park there. Id. He further testified to a 2004 project where the Wentworth rebuilt its pump house, creating conditions where, People couldn t have parked there when we were doing that operation. Id. at pp In addition, in or around April 2007, the Wentworth restricted public access to the gravel area to complete a construction project. Id. at p Summary of Argument The trial court misapplied the law to the facts, committing reversible error, where the trial court granted Mr. Jesurum summary judgment on the question of whether Mr. Jesurum and the public acquired a prescriptive easement over the small section of the Wentworth property at issue. The Court should vacate the summary judgment Order upon a de novo review of the trial court s application of the law to the facts that should lead the Court to hold that Mr. Jesurum failed even to make out a prima facie case of adverse use. The evidence construed in the light most favorable to the Wentworth supports that the Wentworth permitted Mr. Jesurum s use and the public s use as a neighborly gesture, including evidence that the interactions between members of the public using the subject premises and Wentworth agents were uniformly friendly and neighborly and a 1999 letter from the Wentworth s owner to Mr. Jesurum wherein Mr. Binnie specifically stated that both the Wentworth and I want to be good neighbors to you and the many others who enjoy the vistas and the open space that the Wentworth represents. App. at p Pursuant to this Court s decision in Greenan v. Lobban, 143 N.H. 18 (1998), the evidence that the Wentworth allowed the use as a neighborly act supported that the use was permissive and therefore mandated the denial of summary judgment, such that this Court should vacate the trial court s summary judgment Order. 9

15 This Court s de novo review of the application of the law to the facts should further lead the Court to hold that Mr. Jesurum failed to prove acts of such a character that would have placed the Wentworth on notice that he and the public were making an adverse claim of right, to which acts the Wentworth could fairly have been expected to object. Mr. Jesurum failed to proffer any evidence in support of his summary judgment motion that his crossing of the premises, or the public s crossing of the premises, interfered in any way with the Wentworth s use of the premises or imposed any substantial burden on the Wentworth. The trial court should have inferred from the absence of any evidence of such interference or substantial burden that the use was not adverse but was rather merely incidental to the Wentworth s use. Because such incidental use without substantial burden to the property owner does not constitute adverse use pursuant to this Court s decisions in Town of Warren v. Shortt, 139 N.H. 240, 244 (1995) and Sundell v. Town of New London, 119 N.H. 839, (1979), the trial court erred by granting Mr. Jesurum summary judgment. This Court should vacate the summary judgment Order. The Court should further vacate the entry of summary judgment because the Order treated as dispositive on the question of whether use was permissive or adverse facts that are simply not dispositive and failed to conduct the key inquiry on which the accrual of prescriptive rights rises and falls. The trial court placed great weight on the fact that Mr. Jesurum never requested permission to cross the subject premises and the fact that the Wentworth did not expressly grant permission. Contrary to the trial court s findings, neither of these facts negates a finding of permissive use, as demonstrated by the Town of Warren case, in which it was also true that the claimant never requested permission and the landowner never expressly gave it. The trial court ignored that permissive use can be inferred from such a circumstance as a neighborly relationship. The trial court further failed to appropriately conduct the key inquiry on which the 10

16 existence of prescriptive rights hinged for purposes of summary judgment: construing the facts in the light most favorable to the Wentworth, would the uses alleged by Mr. Jesurum have reasonably placed the Wentworth on notice that he and the public were making an adverse claim of right, such that the Wentworth could fairly have been expected to object? The answer to this question must be, No, given Mr. Jesurum s admission that his use of the premises was so insubstantial that he never saw an owner once when he was crossing the subject premises in all of the 22 years that he alleged used the premises, given the absence of any evidence that the use by Mr. Jesurum and the public interfered in any way with the Wentworth s use of the premises or imposed any substantial burden on the Wentworth, and given the evidence that Mr. Binnie felt it was important to be neighborly and that the interactions between members of the public using the premises and Wentworth agents were uniformly friendly and neighborly. Because the Wentworth could not fairly have been expected to object to the uses alleged by Mr. Jesurum under the summary judgment standard, this Court should vacate the summary judgment Order. If the Court finds as it should that the trial court erred by granting the petitioner summary judgment on the existence of prescriptive easement rights, the Court should vacate all the trial court s Orders in this case, including the Order granting summary judgment, the Order defining the scope of prescriptive easement rights, and the Order awarding attorney s fees. Certainly, if it were error for the trial court to find on summary judgment that prescriptive easement rights existed, it was error for the trial court to go on to determine the scope of the rights that it should not have found in the first place. If, however, the Court reaches the question of whether the trial court erred in determining the scope of any prescriptive rights, the Court should vacate the trial court s August 20, 2015, Orders defining such scope because the trial court s holdings arise from legal errors. The trial 11

17 court erred by failing to properly apply the rule of law applicable to the determination of prescriptive easement rights that [t]he scope of a prescriptive easement is defined by the character and nature of the use that created it. Cote v. Eldeen, 119 N.H. 491, 493 (1979). Proper application of this rule of law should have led the trial court to hold that the public uses of the land that gave rise to any prescriptive rights were limited to accessing the land to dig for worms and search for shellfish, consistent with the 1984 Rockingham Planning Commission report findings and the testimony credited by the trial court of Michael Flanigan and Demetrios Yiannacopoulos. The trial court should have held that the scope of any prescriptive easement rights was fixed and determined by these original uses under which prescriptive rights arose. Cataldo v. Grappone, 117 N.H. 1043, 1049 (1977). The trial court erred, however, by determining the scope of prescriptive easement rights without conducting the requisite analysis of the public uses that created the alleged easement rights. The trial court s failure to conduct this essential analysis renders the trial court s findings regarding the scope of prescriptive easement rights erroneous as a matter of law, warranting reversal. The trial court compounded its errors by failing to conduct the further required analysis of whether the new uses of the alleged easement area challenged by the servient owner namely, parking vehicles and launching boats fell within the purpose for which the alleged prescriptive easement was originally created. See Restatement (Third) of Property Servitudes 4.10 cmt. c (2000). Nor did the trial court conduct the required analysis of whether any changes that occurred to easement uses from the original uses were reasonable, failing to consider such factors that the Restatement directs courts to consider such as the environmental impact of the changes and the principle cautioning against changes in the uses of prescriptive easements. The trial court s failure to analyze the scope of any prescriptive easement rights under these 12

18 principles caused the trial court to commit error. The trial court filed to undertake the required assessment of the uses that gave rise to the alleged easement, failed to determine whether parking and boat launching fell within the purpose of the alleged easement as it was originally created, failed to identify the changes to easement use that had occurred since the alleged acquisition of the easement by prescription, and failed to undertake an appropriate inquiry as to whether such changes were reasonable. The Court should therefore vacate the trial court s August 20, 2015, Order determining the scope of any prescriptive easement rights, and to the extent appropriate, remand to the trial court for a proper determination of the scope of any prescriptive rights. Vacating the December 1, 2014, summary judgment Order, or vacating the August 20, 2015, Order on the scope of easement rights, would render it unnecessary for the Court to address the trial court s Orders awarding Mr. Jesurum attorney s fees under the substantial public benefit exception, but if the Court does consider the trial court s Orders on attorney s fees the Court should vacate them, for at least three reasons. First, the Court lacked jurisdiction to issue the Orders because the Wentworth had perfected its Appeal before the trial court ruled. Furthermore, the substantial public benefit theory should not apply in this case because the Wentworth is a private defendant. This Court has never applied the theory to award attorney s fees against a private defendant and in fact has held that the exception is applicable to public officials, not private defendants. See Silva v. Botsch, 121 N.H. 1041, 1044 (1981). Further, the petitioner Jesurum should not recover attorney s fees under the substantial public benefit theory because, as was true of the plaintiffs in Taber v. Town of Westmoreland, 140 N.H. 613, 616 (1996), Mr. Jesurum was not a public trustee and litigated primarily to benefit himself. The Court should therefore vacate the Orders awarding Mr. Jesurum attorney s fees. 13

19 Argument A. Applicable Standards of Review 1. Standard of Review With Respect to Trial Court s Order Granting the Petitioner Jesurum Summary Judgment on the Existence of Prescriptive Rights. In reviewing the trial court s grant of summary judgment to the petitioner Jesurum, the Court should look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party, the Wentworth. Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997); see also Concord Group Insurance Co s v. Sleeper, 135 N.H. 67, 69 (1991) (emphasis supplied) ( the reviewing court must consider the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. ). The Court must review de novo the trial court s application of the law to the facts. Del Norte, Inc., 142 N.H. at Standard of Review With Respect to Trial Court s Order Defining the Scope of Any Prescriptive Rights. The Court should reverse the trial court s ruling regarding the scope of any prescriptive rights if the trial court s findings are unsupported by the evidence or are erroneous as a matter of law. Town of Warren v. Shortt, 139 N.H. 240, 242 (1995). 3. Standard of Review With Respect to Trial Court s Orders Awarding Attorney s Fees Under the Substantial Public Benefit Exception. When reviewing a trial court s award of attorney s fees, the Court will reverse the trial Court s findings if they are erroneous as a matter of law or unsupported by the evidence. Taber v. 140 N.H. at

20 B. The Trial Court Erred Granting the Petitioner Summary Judgment on the Existence of Prescriptive Easement Rights Because the Petitioner Failed to Meet His Burden to Prove Acts of Such a Character That Would Have Placed the Wentworth on Notice That an Adverse Claim of Right Was Being Made, Construing the Facts in the Light Most Favorable to the Wentworth. The trial court committed reversible error in entering summary judgment in favor of Mr. Jesurum on the question of the existence of prescriptive easement rights over the Wentworth s land because the trial court ignored the burden-shifting framework established by this Court in Sandford v. Town of Wolfeboro, 143 N.H. 481 (1999). The trial court therefore failed to find, as it should have found, Mr. Jesurum failed to make out a prima facie case of adverse use for summary judgment purposes and further failed to carry his ultimate burden of persuasion to prove adverse use. This is particularly true because the facts in the summary judgment record, construed in the light most favorable to the Wentworth, support that Mr. Jesurum s use and the public s use of the subject land were permissive, not adverse. The burden of proving the existence of a prescriptive easement rests on the claimant, and doubt will be resolved in favor of the landowner. Ely & Bruce, The Law of Easements and Licenses in Land at 5.3. This is so because [t]he law does not favor the creation of prescriptive easements. Brick House Café & Pub, LLC v. Callahan, 151 S.W.2d 838, 841 (Mo.App.W.D. 2004); accord Carnahan v. Moriah Property Owners Ass n, Inc., 716 N.E.2d 437, 441 (Ind. 1999) ( Prescriptive easements are not favored in the law. ). To establish a prescriptive easement, the petitioner Jesurum was obligated to prove by a balance of probabilities twenty years adverse, continuous, uninterrupted use of the land claimed in such a manner as to give notice to the record owner that an adverse claim was being made to it. Greenan v. Lobban, 143 N.H. 18, 22 (1998) (emphasis supplied). The requirement to prove adverse use required the petitioner to prove that his use of the subject land, and the public s use 15

21 of it, was of such a character as to place the Wentworth on notice that he and the public were making an adverse claim against the Wentworth s land. Town of Warren v. Shortt, 139 N.H. 240, 243 (1995) (emphasis supplied) (holding that [t]he 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, and explaining that [t]he [claim of right element generally refers to the character of the use: use of the land claimed in such a manner as to give notice to the record owner that an adverse claim is being made to it. ). Construing the facts in the light most favorable to the Wentworth, Mr. Jesurum failed even to established a prima facie case of adverse use, such that the trial court should have denied him summary judgment. The Sandford court held that a petitioner seeking to establish a prescriptive easement must first establish a prima facie case on adverse use, [meaning that the] claimant must initially produce evidence of acts of such a character that create an inference that the claimant adversely used the landowner s property, that is, used it without permission. Sandford, 143 N.H. at 485 (emphasis in original). The evidence proffered by Mr. Jesurum does not support such an inference, if construed in the light most favorable to the Wentworth and if all reasonable inferences are drawn in favor of the Wentworth. Mr. Jesurum s evidence consists of his testimony: a.) that he walked across a small fragment of the Wentworth s property while waving to and exchanging friendly greetings with Wentworth employees, never in sight of a Wentworth owner; and b.) that he saw other people cross the small fragment of the Wentworth property and engage in neighborly interactions with Wentworth employees. The neighborly and friendly relationship between the Wentworth 16

22 agents on the one hand, and Mr. Jesurum and members of the public on the other hand, supports an inference that the use was permissive rather than adverse. The situation is analogous to the situation that this Court addressed in the Greenan case, where this Court affirmed the trial court s rejection of a claim to a prescriptive easement, holding that the plaintiffs failed to prove that their use of the beach was not permissive, citing evidence that the defendants maintained a friendly relationship with the plaintiffs and their predecessors in title. Greenan, 143 N.H. at 22. The trial court was therefore patently wrong in its finding that the evidence of friendly and neighborly interactions between Mr. Jesurum and members of the public crossing the subject fragment of land on the one hand, and Wentworth agents on the other hand, somehow had no bearing on the question of whether the use was adverse or permissive. Addendum at pp To the contrary, permission can be inferred from a neighborly relationship, as a matter of well-settled law. The Law of Easements and Licenses in Land at 5:9. For example, in the analogous case of Douglas v. Knox, 502 S.E.2d 490 (Ga.App. 1998), the court held that the plaintiff had failed to establish a prescriptive easement over a horse trail that passed through a private hunt club. Id. at 491. The Douglas court found that the plaintiff s use was permissive based on testimony from hunt club members and employees that they allowed the adjoining landowners to use the trail and never told anyone they could not do so because it was important to the hunt club to maintain a good relationship with the neighbors. Id. In another analogous case, a Delaware court found no prescriptive easement over the land of a beach club for homeowners to access parking based on evidence establishing a neighborly relationship between the beach club and the homeowners. Dewey Beach Lions Club, Inc. v. 17

23 Longanecker, 905 A.2d 128 (Del. Ch. 2006). The Dewey Beach Lions Club, Inc. court rejected the establishment of any prescriptive easement based on evidence that the beach club allowed the homeowners to use the subject land as a neighborly gesture. Id. at 136. The court noted that the law is well established that neighborly or friendly use of land, whether a roadway, open land, or otherwise, does not establish an adverse use Id. (citing cases). Simply put, said the Dewey Beach Lions Club, Inc. court, taking neighborly acquiescence for the kind of laxity required for the establishment of a prescriptive easement is not a rule in accordance with the law of this state. Accord Altieri v. Dolan, 423 A.2d 482, 484 (R.I. 1980) (finding no prescriptive easement over a driveway where the driveway was used on a friendly and neighborly basis and not adversely ). The grant of summary judgment was erroneous not only because of the reasonable inference of permissive use flowing from the acts that the petitioner cited in support of his claim to prescriptive rights, but also because of the petitioner s failure to prove that his use or the public s use of the small fragment of the Wentworth s sprawling 150-acre golf course property was in any way sufficient to place the Wentworth owners on notice that either he or the public were making any adverse claim of right. First of all, Mr. Jesurum s admission that he never observed an owner of the Wentworth while crossing the fragment of the Wentworth property at issue should have led the trial court to draw the inference that Mr. Jesurum did not engage in acts sufficient to place the Wentworth owners that he was making an adverse claim of right. If Mr. Jesurum s use of the subject premises were so insubstantial and insignificant that he cannot identify a single occasion in the 22 years he allegedly traversed the premises where an owner observed him doing so, the inference that must be drawn from this fact, at least for summary judgment purposes, is that Mr. 18

24 Jesurum did not engage in acts sufficient to place the Wentworth owners on notice that he was making an adverse claim of right. 17 New Hampshire Practice: Real Estate at 8.02 [C] (1 st ed. 2003) ( The nature of the use must be substantial enough that the landowner would know something was being claimed. ) (citing Sundell v. Town of New London, 119 N.H. 839, (1979)). The trial court therefore should have denied summary judgment. Furthermore, the trial court should have denied the petitioner s motion for summary judgment based on Mr. Jesurum s failure to produce evidence of any acts to support that his use and the public s use of the property was anything other than incidental or that such use of the property caused any substantial burden to the Wentworth for the prescriptive period. For a use of land to place an owner on notice that the user is making an adverse claim of right, this Court has indicated that the use of the space by the general public [must be] of a character or extent to interfere with that of the owners. Town of Warren, 139 N.H. at (quoting Wason v. Nashua, 85 N.H. 192, 199 (1931)). For example, in Sundell, the Court held that it was not the length of the defendant s use that determined the dates of the prescriptive period but rather the dates during which defendant s use posed a substantial burden upon the plaintiffs. Id. at In Sundell, the defendants had been discharging effluent into a brook and lake in which the plaintiffs had littoral rights since Id. at 846. The defendants conduct did not impose a substantial burden on the plaintiffs until the mid 1960s, however. Id. at 847. The Court held that the date for determining when the defendants use became adverse was not 1931 but was rather the mid 1960s, the time by which the defendants conduct began to cause the plaintiffs a substantial burden. A petitioner such as Mr. Jesurum will fail to prove adverse use if his use of the landowner s land was so far incidental [to the owner s use of the land] that reasonable [persons] 19

25 in the place of the owners would not have supposed that the public was occupying it under a claim of right. Town of Warren, 139 N.H. at (emphasis supplied). Here, under the summary judgment standard, the trial court should have drawn the inference that Mr. Jesurum s use and the public s use of the subject premises was so incidental to the Wentworth s use of the land that reasonable persons in the place of the Wentworth owners would not have supposed that Mr. Jesurum or the public was making an adverse claim of right by walking across the land. This is particularly true given that Mr. Jesurum presented no evidence that his use of the subject premises ever interfered with the Wentworth s use of the premises. Mr. Jesurum s failure to produce any evidence that his use of the small fragment of the Wentworth s 150-acre golf course property interfered in any way with the Wentworth s use of the fragment, coupled with Mr. Binnie s statements in his Affidavit indicating that he only determined in the fall of 2012 that the public use had begun to interfere with the Wentworth s use because the public was mistreating the bucolic property and mistreating Wentworth agents, support the inference that the public s use of the land neither interfered with the Wentworth s use of the land nor placed any substantial burden on the Wentworth until No evidence exists that the public was making an adverse claim of right until 2012, when Mr. Binnie determined that the public was abusing golf course property took steps to prevent further public use of the subject fragment of Wentworth land. Accordingly, pursuant to Town of Warren and Sundell, it was error for the trial court to find that Mr. Jesurum proved adverse use, particularly on summary judgment. On the contrary, the trial court should have found that Mr. Jesurum failed to make out a prima facie case of adverse use because he failed to produce evidence of acts giving rise to any inference that he or the public made 20 uninterrupted and continuous years of use of the property 20

26 to a degree sufficient to place the Wentworth on notice that an adverse claim of right was being made. The trial court should have found that the evidence in the summary judgment record, construed in the light most favorable to the Wentworth, and the inferences drawn in the Wentworth s favor from such evidence, support that the use was either permitted by or tolerated by the Wentworth. Such finding should have led the trial court to deny summary judgment. Importantly, because the trial court ignored the burden-shifting framework for proving adverse use that this Court mandated in Sandford v. Town of Wolfeboro, 143 N.H. 481 (1999), the trial court made no specific finding as to whether Mr. Jesurum made out a prima facie case. But, even if the trial court had somehow found that Mr. Jesurum did make a prima facie showing of adverse use, the trial court should never have found that he carried his ultimate burden of persuasion to prove adversity. The Wentworth satisfied its burden to produce evidence that the claimant s intrusive acts were, in fact, permitted, as required by the second step of the Sandford burden-shifting framework. Id. at 486. Mr. Binnie provided an affidavit explaining that the Wentworth had permitted the historically incidental uses by Mr. Jesurum and the public. The Wentworth further produced a May 21, 1999, letter from Mr. Binnie to Mr. Jesurum in which Mr. Binnie specifically stated, both the Wentworth and I want to be good neighbors to you and the many others who enjoy the vistas and the open space that the Wentworth represents. Jesurum deposition at Ex. 3, App. at p This evidence of Mr. Binnie s desire to have neighborly relationships with Mr. Jesurum and others supports that the use was permissive, as do Mr. Jesurum s admissions that his interactions and the public s interactions with Wentworth agents were uniformly friendly and neighborly and that no Wentworth agent to his knowledge ever told 21

27 anyone before October of 2012 that the person could not cross the subject fragment of the golf course property. To carry his ultimate burden of persuasion on summary judgment, Mr. Jesurum would have needed to identify facts that construed in the light most favorable to the Wentworth proved that the use was actually adverse despite the evidence of permissive use. Sandford, 143 N.H. at 486 (holding that while the burden of production shifts in the process of determining whether the claimant has proven adverse use, [t]he claimant must always satisfy the burden of persuasion to succeed on a prescriptive easement claim, even when the landowner fails to produce evidence of permission once the claimant establishes a prima facie case. Otherwise, the requirement of adversity as an essential element of the prescriptive easement claim would be practically eliminated. ). Because Mr. Jesurum failed to produce such facts, the trial court misapplied the law to the facts in granting summary judgment an error this Court should correct by vacating the summary judgment Order. The trial court committed reversible error because, rather than focusing as it should have done on whether Mr. Jesurum had produced evidence of acts that would have placed the Wentworth on notice that he and the public were making adverse claims of right to Wentworth land, the trial court determined that the use was adverse based on facts that are insufficient as a matter of law to support a finding of adverse use. The trial court improperly considered to be a crucial fact that the Wentworth did not expressly permit use of the subject premises by Mr. Jesurum and the public, but this fact should never have been dispositive of whether Mr. Jesurum met his burden to prove adverse use, particularly on summary judgment, pursuant to Town of Warren. The Town of Warren court held that the absence of evidence that a landowner expressly permitted a public use was 22

28 insufficient to prove that the use was adverse. Id. at 245 ( even though the defendant in the present case was unable to adduce significant testimony that the use was made with the express permission of the owners, our review of the record discloses insufficient evidence that the use was hostile. ). Similarly, the trial court erred by granting summary judgment to Mr. Jesurum on the question of adverse use in reliance on evidence that Mr. Jesurum and the public used the subject premises without seeking permission from the Wentworth defendants. This fact provides insufficient footing for a summary judgment ruling. Members of the public also used the land at issue in the Town of Warren case without requesting anyone s permission, but this Court still held that the Town had failed to meet its burden to prove adverse use. Town of Warren, 139 N.H. at 242, 244. The trial court perhaps most clearly demonstrated its misapprehension of the applicable law where it determined that Mr. Jesurum had met his burden to prove adverse use based on a finding that [o]ver [a] twenty-year period the Wentworth defendants simply acquiesced in the public s use without specifying that such use was permissive. Again, the law imposes no requirement that a landowner somehow specify that a use is permitted for a finding of permissive use to be made. Permission can be inferred from such a circumstance as a neighborly relationship. The Law of Easements and Licenses in Land at 5:9. Permission can also be inferred from circumstances such as those present here where the land being used by the public is open and is a fragment of a large tract such as the 150-acre golf course at issue. Id. at 5:3 ( where lands are open, undeveloped and unenclosed they are in a natural state and frequently in large tracts, and owners may not know or care that others use their land casually. ). Furthermore, a finding of acquiescence does not necessarily support a finding of 23

29 adversity and certainly did not do so under the circumstances of this case. A use that is tolerated by the owner, or acquiesced in by the owner, is not adverse. Town of Warren, 139 N.H. at 243 (contrasting use that an owner permits or tolerates with use that the owner knows or should know is consistent with the assertion of an adverse claim of right); Douglas, 502 S.E.2d at 492 ( That a property owner knows of and acquiesces in the use of his private way is insufficient to establish prescription. ). The trial court, in focusing on irrelevancies, ignored the core question on which a claim for prescriptive easement rights rises and falls. Did the claimant allege acts to which the landowner could fairly have been expected to have objected? New Hampshire Practice: Real Estate at 8.02 (1 st ed. 2003) (Prescriptive rights are obtained only when the landowner can fairly be expected to have objected. ). Here, Mr. Jesurum alleged no such acts. He alleged only that he and members of the public crossed the subject fragment of the Wentworth s land while exchanging friendly or neighborly greetings with Wentworth personnel. He presented no evidence that his use of the subject area of the public s use interfered with the Wentworth s use of its property in any way or imposed any substantial burden on the Wentworth, and he admitted that his use of the premises was so insubstantial that not once in the 22 years he allegedly crossed the premises did he ever see a Wentworth owner. From these facts construed in the light most favorable to the Wentworth, it does not follow that the Wentworth should have objected to the uses Mr. Jesurum alleged, particularly given the letter from Mr. Binnie stating that he wanted to be a good neighbor and the evidence the Wentworth agents acted in a friendly and neighborly manner to people crossing the area. This Court, applying the law to the facts de novo, should therefore vacate the trial court s entry of summary judgment. 24