Argued: January 15, 2015.
Janson & Koppenheffer, LLP, of Lebanon ( William K. Koppenheffer on the brief and orally), for the petitioner.
Cleveland, Waters and Bass, P.A., of Concord ( David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the respondents.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
In this declaratory judgment proceeding, the respondents, David A. and Joanne Hodges, appeal an order of the Superior Court ( Vaughan, J.) ruling that they must contribute to the maintenance and repair of an easement they hold over property owned by the petitioner, Village Green Condominium Association (Village Green). We affirm.
The trial court found, or the record supports, the following facts. Village Green is a residential condominium association that owns real property adjacent to Pleasant Street in Lebanon. The Hodgeses own and, through an affiliated corporate entity, operate three apartment complexes on property abutting Village Green's property. They hold an easement over Village
Green's property that provides access from the apartment complexes to Pleasant Street (easement).
The properties were originally one tract of land owned by the French family. In 1929, the French family divided the property into two tracts with various members of the French family owning each tract. In 1970, a portion of one tract was conveyed to R. Bill Purcell. In 1975, Purcell conveyed most of that property to S.M. Development Corporation. Later that year, S.M. Development Corporation conveyed the property to Village Green.
In 1974, a portion of the second tract was conveyed to the Hodges Development Corporation. Later that year, Purcell conveyed the easement to the Hodges Development Corporation by a quitclaim deed (easement deed). The easement is over the portion of the parcel Purcell later conveyed to S.M. Development Corporation. The pertinent language in the easement deed described the easement as follows:
A certain right of way 20 feet in width, for vehicular and pedestrian travel, leading from Pleasant Street in the Village of West Lebanon, City of Lebanon, County of Grafton and State of New Hampshire, to the premises described in the deed ... dated October 15, 1929, recorded in the Grafton County Registry of Deeds, Book 621, Page 36, and being the same right of way as set forth in said deed... . The said Hodges Development Corporation shall have the right to improve said road and maintain the same, but the said R. Bill Purcell reserves the right for himself, his heirs and assigns, to use said right of way in common with Hodges Development Corporation, its successors and assigns.
Emphasis added.) In 1975, the Hodges Development Corporation divided the property and conveyed to the Hodgeses two parcels, which included the easement. The relevant users of the easement are the tenants of Village Green and the tenants of the apartment complexes owned by the Hodgeses.
On October 27, 2011, Village Green brought this action, seeking a declaration that the Hodgeses are required " to pay their pro rata share of the costs of maintaining and repairing the easement." It contended that " [t]he easement is in need of approximately $52,000 worth of repaving" and that, as the easement holders, the Hodgeses are required to contribute their pro rata share of the costs of such maintenance and repair.
The Hodgeses objected, arguing that the plain language of the easement deed " addressed the issue of maintenance and improvement of the right of way" and " gave [them] the affirmative right, but not the corresponding obligation, to improve and maintain the right of way." They further maintained that Village Green's claim is barred by waiver and laches. Finally, they argued that, because Village Green " never made any demand upon [them] to contribute to the cost of the maintenance and improvement of the right of way," and because they " did nothing to maintain, repair or improve the easement," the course of dealing of the parties was such that they are under no obligation to contribute to the easement's maintenance and repair.
The trial court bifurcated the proceeding, first hearing evidence on whether the Hodgeses are required to contribute to the repair and maintenance of the easement. If the trial court determined that they are, then a second hearing would be scheduled to determine the nature and extent of the contribution. Following the first part of the bifurcated trial, the court ruled that the Hodgeses are ...