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Mayes v. Leuthauser

Supreme Court of New Hampshire

August 5, 2013

Benjamin Edward Mayes
v.
Wesley A. Leuthauser & a.,

The respondents, Wesley and Jonica Leuthauser, appeal an order of the superior court ruling that the petitioner, Benjamin Mayes, acquired title to a disputed strip of land by adverse possession. They argue that the evidence does not support a finding of adverse possession, and that the trial court erred in considering the deposition testimony of two witnesses. We affirm.

At trial, the petitioner was required to show "twenty years of adverse, continuous, and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim [was] being made." Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007). He presented the testimony of himself and his wife Mary; his predecessor-in-title James Walker; the daughter of Walker's predecessor-in-title Karen Wilt; a surveyor, Scott Sanborn; and a neighbor, Frances McKinnon. He argued that the testimony showed, since 1978, an unbroken, adverse use of a strip of land that is contiguous with his lawn and abuts a line of trees. The petitioner argued that, during this time period, Mel Wilt, the first owner, James Walker, the second owner, and the petitioner, the current owner, gardened in the disputed area, mowed grass in the disputed area, and maintained a stone border that enclosed the disputed area and separated it from the adjacent woods. The trial court agreed, ruling that the petitioner met his burden to establish the elements of adverse possession. The respondents appealed.

The respondents challenge the testimony of four witnesses presented by the petitioner, arguing that they provided "no evidence of adverse use and possession." As this is a challenge to the trial court's factual determinations, our task on appeal is to assess whether the court's findings are "supported by evidence in the record." Blagbrough, 155 N.H. at 33. We address each challenge in turn.

First, the respondents argue that the testimony of Karen Wilt provides no evidence of adverse possession. The respondents contend that the trial court inaccurately summarized Ms. Wilt's testimony when it found that she testified that her father Mel, who owned the Mayes property from 1978 to 1986, cleared trees and brush in the disputed strip, maintained a lawn and gardens, including a terraced stone wall, in the strip, built a stone wall along the border of the woods, and built a tether ball court in the strip.

Having reviewed the transcripts, we conclude that the trial court's summary of Ms. Wilt's testimony is supported by the record. She testified that her parents mowed the grass, gardened, and stored wood in the disputed area. She also testified that her parents built a rabbit cage and a tether ball court in the area. She stated that these activities took place in "the same area where the gardens are" now and that the photographs of the property now "look like . . . the same area" that her father maintained and used. In addition, Mary Mayes testified that Mel Wilt installed a "stone edge" along the border of the woods. Thus, both witnesses provided evidence of adverse use by the Wilts.

Next, the respondents argue that James Walker's testimony provided no evidence of adverse use of the disputed area. We disagree. Walker testified that, from 1986 until 1994, he maintained the areas in question as they were depicted in the photographs and as Mel Wilt had kept them previously. He also testified that the stone edging had not been removed during his ownership. It is a fair inference from Mr. Walker's testimony that the stone edging described by Mary Mayes was present during his ownership and that the mowing described by Karen Wilt continued. Further, Mr. Walker testified that his wife gardened in the disputed area. This testimony provides evidence of adverse use of the disputed area during the Walker ownership of the property from 1986 to 1994. Accordingly, we conclude that the trial court's finding as to Mr. Walker's testimony was supported by the record.

Respondents next argue that the testimony of a surveyor, Scott Sanborn, and that of a neighbor of the petitioner, Frances McKinnon, provided no evidence of adverse use of the disputed area. Ms. McKinnon, however, testified that she has lived next door to the Walker-Mayes property since 1987, and that, for as long as she could remember, the property "always looked the way it does now." As for Mr. Sanborn's testimony, we agree that it provided no direct evidence of adverse use. It did, however, help the court to understand which area was in dispute and assess whether that particular strip had been used openly and adversely for the requisite time period. In any event, the respondents do not contend that the trial court committed any specific error in reviewing Mr. Sanborn's testimony.

Next, the respondents argue that the petitioner cannot "meet his burden of proof for his adverse possession claim" because "[n]o testimony was offered which demonstrates any adverse conduct by either the Walkers or the Wilts on any area of the [respondents'] property." To acquire title to real property by adverse possession, the possessor must show twenty years of adverse, continuous, exclusive and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim is being made. Blagbrough, 155 N.H. at 33. We review the trial court's legal rulings de novo, see, e.g., Osman v. Gagnon, 152 N.H. 359, 361 (2005), but, as noted above, defer to its findings of fact if supported by the record, Blagbrough, 155 N.H. at 33.

Given the extent, nature, and duration of the activities of the petitioner and his predecessors, as those activities were described at trial, we conclude that the petitioner met his burden to prove the elements of adverse possession. Taken together, the evidence shows that at any given time during the period of adverse use, at a minimum, the use of the disputed area involved mowing the grass, planting flowers or gardening, and maintaining a stone edging between the grassy area and the woods. This use goes beyond "occasional trespassory maintenance" and is "sufficiently notorious to justify a presumption that the owner was notified of it." Blagbrough, 155 N.H. at 34. Accordingly, we uphold the trial court's conclusion. See Alukonis v. Kashulines, 97 N.H. 298, 299 (1952) (adverse possession established by evidence that owners cut hay, gardened, and grew crops, and that the disputed strip "did not look any different from the rest of the plaintiff's premises"); cf. Mastroianni v. Wercinski, 158 N.H. 380 (2009) (adverse possession established by evidence that claimants mowed grass, planted flowers, and otherwise treated property marked by stone wall as their own).

Finally, the respondents argue that the trial court improperly considered the deposition testimony of two witnesses, the transcripts of which had been appended to the respondents' motion for summary judgment but were not admitted into evidence at trial. Having reviewed the record before us, we conclude that, to the extent that the trial court may have erred in considering the deposition testimony, the error was harmless. See, e.g., Kessler v. Gleich, 156 N.H. 488, 494 (2007) (where it appears that error did not affect outcome in trial court or where supreme court can see from entire record that no injury has been done, judgment will be affirmed). Although the trial court reviewed the deposition testimony and noted that Mr. Walker's deposition testimony "supported" his trial testimony, the court's order also specifically states that its ruling and finding are "supported by the testimony of the petitioner, his immediate predecessor in title, Walker, and the photographs depicting the use by Walker's predecessor in title, Wilt."

Affirmed.

HICKS, CONBOY and LYNN, JJ., ...


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