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John and Brenda Galloway v. Stephen M. Brox

July 23, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 125


This case involves a dispute over a right of way easement that John and Brenda Galloway granted to Stephen Brox in 1988. The Galloways argue that Brox breached a 2003 agreement obligating him to pay for the cost of expanding the right-of-way to accommodate his proposed use. They also seek an injunction barring Brox from using the easement to access a concrete plant that he proposes to build on an adjacent property. Brox challenged the complaint with a motion for summary judgment. For the reasons set forth below, I grant Brox's motion.


The Galloways own a parcel of land straddling the border between Kingston and Plaistow, New Hampshire, with rights of frontage on Route 125. Brox owns an abutting thirty-acre parcel of land in Kingston that did not have access to Route 125 in 1988.

On March 1, 1988, Brox obtained approval from the Town of Kingston to build asphalt and cement plants on his land and he recorded the approval later that month. He then began to negotiate with the Galloways for a right of way over their land to allow vehicles to access the proposed plants. The negotiations culminated in an agreement executed on August 12, 1988 (the "1988 Agreement") granting Brox a permanent right of way easement (the "Easement") over the Galloways' land. Def.'s Ex. B (Doc. No. 6-4). The agreement provides that Brox may use the Easement solely "for the purpose of access to cement and asphalt plants on [his] land." Id. ¶ 2.

The Easement was recorded later that month. The deed grants a "sixty foot right of way" to Brox and includes a single attachment detailing the location of the Easement. Def.'s Ex. A (Doc. No. 6-3). No other restriction is stated in the deed, and no other document is incorporated by reference. See id.

The Galloways subsequently obtained a permit from the Town of Kingston allowing them to construct an asphalt plant on their land. Def.'s Ex. E at 2 (Doc. No. 6-7). While the Galloways were constructing their plant, Brox became concerned that the proposed location of the plant would invade his easement. Id. Brox hired a surveyor, and alerted the Galloways to his discovery that the proposed plant would, in fact, invade the Easement. Id. The Galloways disputed the location of the Easement and challenged Brox's rights to it. Id. In response, Brox filed suit against the Galloways to quiet title to the Easement. Id. On August 5, 2003, the parties entered into a settlement agreement (the "2003 Agreement") that revised the location of the Easement. Def.'s Ex. D (Doc. No. 6-6). The parties also agreed that Brox "shall bear the cost and expense of expanding Galloways' 10' wide internal road . . . as needed for Brox's use and operations." Id. ¶ 1. Lastly, the 2003 Agreement declared "all prior agreements between the parties, including any letters of intent, . . . null and void." Id. ¶ 2.

When the Galloways failed to sign or record the 2003 Agreement, and instead proposed an alternative plan that moved the Easement approximately thirty feet from the location described in the 2003 Agreement, Brox brought an action in Rockingham Superior Court to enforce the terms of the agreement. (Doc. 6-7 at 3). The court concluded that the 2003 Agreement was based on a mutual mistake as to the location of the Easement. Id. at 6. Accordingly, the court reformed the 2003 Agreement to adopt the Galloways' alternative location. Id. The order was subsequently recorded at the Rockingham County Registry of Deeds. See id. at 1.

Shortly thereafter, the Galloways paved Roadstone Drive, a private road on their property that includes a portion of the Easement. They currently use Roadstone Drive to allow commercial vehicles to access their asphalt plant.

In 2010, Brox submitted a new application to the Kingstown Planning Board (the "Planning Board") seeking site plan approval for a concrete plant on his property. Brox listed the Easement on his application as a means of accessing his land. The Planning Board approved his application on August 16, 2011. The Galloways have challenged the Planning Board's decision in New Hampshire State Court, but their appeal was denied on March 14, 2012. Their motion for reconsideration is pending.

The parties do not dispute that Brox has never constructed a concrete plant on his land, nor has he used the Easement to access his land.


Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable ...

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