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. 2015-0583 REPLY 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 03301 (603) 224-1988 ORAL ARGUMENT BY: Benjamin T. King, Esq. i
TABLE OF CONTENTS Reply Argument...1 A. The Court Should Review The Trial Court s Determination That Prescriptive Rights Exist Based Using The De Novo Standard Governing The Review Of Summary Judgment Orders...1 B. De Novo Review Of The Summary Judgment Record Reveals That Summary Judgment Was Improper Because Mr. Jesurum Failed To Prove That The Use He Claimed Gave Rise To The Easement Was Not Permissive...2 C. The Trial Court Erred In Determining The Scope Of Any Prescriptive Easement Rights Because The Trial Court Failed To Make Factual Findings Essential To Such A Determination...7 Conclusion...8 Certificate of Service...8 i
Cases TABLE OF AUTHORITIES Beckles v. Madden, 160 N.H. 118 (2010)... 2 Cataldo v. Grappone, 117 N.H. 1043 (1977)... 7 Cote v. Eldeen, 121 N.H. 491 (1979)... 7 Elmer v. Rodgers, 106 N.H. 512 (1965)... 6 Greenan v. Lobban, 143 N.H. 18 (1998)... 3, 4, 5, 6 Town of Warren v. Shortt, 139 N.H. 240 (1994)... 5, 6 Other Authorities New Hampshire Practice: Real Estate 8.02 (1 st ed. 2003)... 4 ii
REPLY ARGUMENT A. The Court Should Review The Trial Court s Determination That Prescriptive Rights Exist Based Using the De Novo Standard Governing The Review Of Summary Judgment Orders. No basis exists to use a deferential standard of review on the threshold question of whether any prescriptive rights exist, rather than the accepted de novo standard that generally governs review of summary judgment orders. The trial court determined in its summary judgment Order that prescriptive rights somehow exist in favor of Mr. Jesurum and the public. Addendum to Appellant s Brief (Addendum) at pp. 1-15. Contrary to the suggestions made by Mr. Jesurum in his Brief, the purpose of the bench trial in this case was to determine the scope of any such prescriptive rights not to relitigate the threshold question of whether prescriptive rights exist. The trial court had already resolved that issue previously. The trial court did not reassess whether prescriptive rights exist in its Order concerning the scope of such rights. Instead, the trial court merely summarized in said Order the trial court s earlier Order granting Mr. Jesurum summary judgment on the issue of the existence of prescriptive rights. Specifically, in the beginning of the trial court s analysis in its Order defining the scope of prescriptive rights, the trial court noted that it had previously held in its summary judgment Order that the undisputed facts presented in the motions entitled [Mr. Jesurum] to judgment as a matter of law on the issue of the existence of prescriptive rights, citing its finding from the summary judgment Order that at no time during the relevant period did the Wentworth defendants manifest their toleration of the use of Sanders Point to the general public. Addendum at p. 25. After the trial court noted that it had granted Mr. Jesurum summary judgment on the question of the existence of prescriptive rights, the trial court proceeded to 1
address the scope of such rights, without engaging in any reconsideration of the holding in the summary judgment Order that prescriptive rights exist. Because the trial court resolved the question of whether prescriptive rights exist on summary judgment and did not revisit this question in its Order on the scope of such rights, this Court should follow the de novo standard of review applicable to reviewing summary judgment Orders when reviewing the trial court s erroneous determination that prescriptive rights exist. The Court thus cannot review the trial court s holding that prescriptive rights exist under the deferential standard of review that the appellee erroneously advocates. See Appellee s Brief at p. 10. Instead, the Court s task in reviewing the trial court s determination that prescriptive rights exist is to review de novo the summary judgment record in the light most favorable to the Wentworth to determine whether the trial court erred in holding that no genuine issues of material fact existed, and that Mr. Jesurum was somehow entitled to judgment as a matter of law, on the question of the existence of prescriptive rights. See Beckles v. Madden, 160 N.H. 118, 125-26 (2010). B. De Novo Review Of The Summary Judgment Record Reveals That Summary Judgment Was Improper Because Mr. Jesurum Failed To Prove That The Use He Claimed Gave Rise To The Easement Was Not Permissive. The appellee mischaracterizes the summary judgment record, and the applicable law, in trying to persuade the Court that it was somehow appropriate for the trial court to grant the appellee summary judgment on the existence of prescriptive rights. Contrary to the appellee s erroneous statement in his Brief that there was only evidence of neighborliness towards Jesurum, not the public, the summary judgment record contained evidence indicating that agents of the Wentworth exuded friendliness and neighborliness to everyone who crossed the subject premises. Not only did Mr. Jesurum admit in his deposition that his interactions with the 2
Wentworth were neighborly (Appellant s Appendix at p. 78), but he acknowledged that the interactions that he observed between the Wentworth and members of the public were neighborly. Mr. Jesurum observed other members of the public whom he could not identify crossing the subject land between 1994 and October 15, 2012. Appellant s Appendix at pp. 78-79. The interactions that Mr. Jesurum observed between Wentworth agents and these unknown users of the land were uniformly neighborly, as Mr. Jesurum acknowledged. Q. Between 1994 and say October 1, 2012, did you ever witness an interaction between a WBTSCC Limited Partnership agent or employee and a member of the public that you would not characterize as neighborly? A. No. Appellant s Appendix at p. 82. Mr. Binnie also stated in his Affidavit that the Wentworth had permitted use of the subject premises out of a desire to be a good citizen and a good neighbor. Id. at p. 66. A 1999 letter that Mr. Binnie wrote to Mr. Jesurum, wherein Mr. Binnie wrote 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, further supported that the Wentworth permitted the public use of the subject premises out of neighborliness. Id. at p. 127. The evidence that the Wentworth allowed the public and Mr. Jesurum to cross its land out of a desire to be friendly, or as an act of neighborliness, should have led the trial court to deny summary judgment, finding genuine issues of material fact as to whether the public s use and Mr. Jesurum s use of the subject premises was permissive. The trial court committed patent error in its summary judgment Order, ignoring this Court s holding in Greenan, where it held that evidence of the Wentworth acting neighborly with Mr. Jesurum and the public somehow had no bearing on whether Mr. Jesurum could meet his burden to prove that his use (and the public s use) was adverse. Addendum to Appellant s Brief at p. 9. The appellee repeats the 3
error in his Brief, completely ignoring the Greenan holding and erroneously characterizing the evidence of neighborliness as irrelevant. Appellee s Brief at p. 15. Contrary to the erroneous reasoning of the trial court and the appellee, evidence of the Wentworth s neighborly interactions with Mr. Jesurum and the public is relevant to the question of whether Mr. Jesurum could meet his burden to prove adverse use, and whether genuine issues of material fact existed as to whether the use were adverse or permissive, precluding summary judgment. Where a landowner allows others to use land out of friendliness or neighborliness, a claimant cannot meet his burden to prove by a preponderance of the evidence that the use was adverse, precluding the nascence of any prescriptive rights. As the Supreme Court stated in Greenan: The absence of permission is an element of a claim of right, which is in turn an essential element of a claim for a prescriptive easement that the claimant must prove by a preponderance of the evidence. [T]he defendants maintained a friendly relationship with the plaintiffs and their predecessors in title, and allowed them to use the beach outside of the right-of-way s boundaries. The plaintiffs failed to provide sufficient evidence to compel a finding that their use of the beach was not permissive. Greenan v. Lobban, 143 N.H. 18, 22 (1998). Other legal commentators have explained the rationale for this rule: [T]he owner of a beach who voluntarily shares it with others in a neighborly gesture, or who does not strictly enforce a boundary line against everyone at all times, should not be at risk of losing the right to exclude the neighbor or the neighbor s successors in title. The rule, as described by the New Hampshire Supreme Court, is that a permissive use no matter how long or how often exercised cannot ripen into an easement by prescription. If this were not the rule, landowners would risk losing property rights merely by the neighborly act of allowing others to cross or use the property. New Hampshire Practice: Real Estate 8.02 (1 st ed. 2003). The trial court s failure to recognize the legal significance of the evidence of the neighborly interactions between the Wentworth on the one hand, and Mr. Jesurum and the public 4
on the other hand, led the trial court to make the erroneous finding on which its summary judgment determination was predicated that at no time during the relevant time period did the Wentworth defendants manifest their toleration of [the] use [of the subject premises] to the general public. Addendum to Appellant s Brief at pp. 7, 25. 1 The trial court overlooked that the Wentworth manifested its permission for the public to use the subject premises through its friendly and neighborly interactions with the public. Contrary to the reasoning of the trial court and the appellee, the absence of express permission does not carry the plaintiff s burden to prove adverse use. See Town of Warren v. Shortt, 139 N.H. 240, 245 (1994) ( even though [no evidence was adduced that the use in question] was made with the express permission of the owners, our review of the record discloses insufficient evidence that the use was hostile. ). Moreover, contrary to the appellee s contentions, the legal principles governing whether a claimant has proven adverse use do not change, nor do they become more relaxed for claimants just because beach access is involved. Greenan, which presented an analogous situation to the instant case, demonstrates that the appellee is flatly wrong where he advances the blanket proposition in his Brief that, When the public makes public use of a beach access without asking permission, they act adversely. Appellee s Brief at p. 12. Like this case, Greenan involved beach access. Greenan, 143 N.H. at 20 ( The plaintiffs and their predecessors in title have used the beach at issue for at least forty years. ). Greenan makes no reference to the claimants ever expressly requesting permission to use the beach access across the landowner s land, nor does Greenan contain any reference to the landowner ever expressly communicating permission. Rather, the permissive nature of the use of the beach access at issue in Greenan was inferred from the friendly relationship the property owners maintained with the plaintiffs and 1 The trial court quotes this finding from its summary judgment Order in its summary of such Order contained in the Order defining the scope of prescriptive rights, demonstrating the importance of the finding to the trial court s entry of summary judgment. 5
their predecessors in title for decades leading up to the 1980s, when the property owners expressly revoked permission. Id. at pp. 20, 22. Greenan is therefore analogous to the instant case, where the Wentworth permitted use of the subject premises for decades leading up to 2012 as reflected by the Wentworth s friendly interactions with the public during those decades, but then revoked the permission in 2012 because the use had become too intensive. Just as was true in Greenan, the plaintiff simply did not proffer sufficient evidence to meet his burden of proving that the use was adverse. The trial court s grant of summary judgment was therefore in error. Mr. Jesurum s arguments in favor of affirming the trial court s entry of summary judgment rely heavily on the 50+-year-old case of Elmer v. Rodgers, 106 N.H. 512 (1965). The plaintiff s reliance on this case overlooks to his peril the principles pertaining to New Hampshire s law of prescriptive easements that have evolved since then, including that: (1) the absence of express permission does not, in and of itself, carry the claimant s burden to prove adverse use (Town of Warren, 139 N.H. at 245); and (2) a finding of permissive use is warranted by evidence of a friendly and neighborly relationship between the owner and the claimant, for to hold otherwise would be to discourage landowners from allowing others to use their property out of a spirit of neighborliness (Greenan, 143 N.H. at 22). Mr. Jesurum and the trial court further overlook the principle that a claimant s use of the property cannot be adverse if it so incidental to the owner s use of the property that the owners would not have supposed that the public was occupying it under a claim of right a principle that should apply with particular force where the land at issue is a small segment of a sprawling property including an 18-hole golf course. These principles, misapplied or overlooked by the trial court, warrant vacating the entry of summary judgment and remanding the case. 6
C. The Trial Court Erred In Determining The Scope Of Any Prescriptive Easement Rights Because The Trial Court Failed To Make Factual Findings Essential To Such A Determination. The trial court's failure to define when any so-called prescriptive easement rights arose, coupled with its failure to define the uses for which such easement rights arose when they arose, renders the trial court's analysis of the scope of such supposed easement rights fatally flawed, and warrants vacating the Order on the scope of the prescriptive rights. This conclusion is dictated by the well-settled principle that the scope of prescriptive easement rights is fixed by the scope for which such rights originally accrue. See Appellant's Brief at p. 25. Given the principle that the scope of prescriptive rights is defined and limited by the uses that caused such rights to accrue, it is axiomatic but one cannot know the scope of prescriptive rights unless one knows when the rights accrued and what the uses were that gave rise to such rights. No argument by the appellee excuses the trial court's failure to apply to its determination of the scope of the supposed prescriptive rights the principles set forth in Cote v. Eldeen, 121 N.H. 491, 493 (1979) and Cataldo v. Grappone, 117 N.H. 1043, 1079 (1977). Indeed, the appellee's claim is blatantly wrong that trial testimony somehow supported that the subject premises were used as a parking lot in the 1950s. Appellee's Brief at p. 19 ("Even in the 1950s, Sanders Point was thought of as public parking."). Michael Flanigan, the only witness who testified as to the use of the subject premises in the 1950s, in fact testified that the subject area was not a parking lot and was in fact "rustic and undeveloped" at the time. Transcript I at p. 124. Because the trial court failed to find when and how any prescriptive rights accrued, the trial court's findings as to the scope of any prescriptive rights should be vacated. 7
CONCLUSION For the foregoing reasons, and for all the reasons stated in Appellant's Brief, the Supreme Court should vacate the trial court's November 26, 2014, and August 20, 2015, Orders and should remand to the trial court. Respectfully submitted, WBTSCC LIMITED PARTNERSHIP and WILLIAM H. BINNIE, TRUSTEE OF THE HARRISON IRREVOCABLE TRUST By their attorneys, DOUGLAS, LEONARD & GARVEY, P.C. Date: June 28, 2016 By: Benjamin T. King, Bar #12888 14 South Street, Suite 5 Concord, NH 03301 (603) 224-1988 CERTIFICATE OF SERVICE I hereby certify that two copies of the Reply Brief have been mailed by first-class mail this 28th day of June 2016, to Paul McEachern, Esq., Shaines & McEachern, PA, P.O. Box 360, Portsmouth, NH 03802. Benjamin T. King 8