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Choquette v. Roy

Supreme Court of New Hampshire

April 3, 2015

Raymond Choquette & a .
v.
Jason Roy ; Raymond Choquette & a .
v.
Thomas Robichaud & a .; Raymond Choquette & a .
v.
Philippe E. Roy & a

Submitted: January 7, 2015.

Page 714

[Copyrighted Material Omitted]

Page 715

Coos.

Cooper Cargill Chant, P.A., of North Conway ( Christopher T. Meier on the brief), for Raymond and Pamela Choquette.

John L. Riff, IV, of Lancaster, by brief, for Jason Roy, Thomas and Kelly Robichaud, and Philippe E. Roy.

CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

OPINION

Page 716

Conboy, J.

Raymond and Pamela Choquette (the petitioners), filed separate petitions against Philippe E. Roy (P.E. Roy), individually and as trustee of the Roy Family Trust, Jason Roy, and Thomas and Kelly Robichaud (the respondents). These consolidated actions relate to the transfer of, use of, and access to certain parcels of land originally owned by the petitioners and currently owned by the respondents. The petitioners appeal an order of the Superior Court ( Vaughan, J.), and the respondents cross-appeal. We affirm in part, reverse in part, and remand.

I. Background

The trial court found, or the record supports, the following facts. In 1986, the petitioners purchased approximately 400 acres of land off Hall Stream Road in Pittsburg. By 1988, the petitioners had begun subdividing and selling portions of this 400-acre parcel, some of which they conveyed to various buyers on a lot-by-lot basis. Between 1988 and 2002, many of the parcels conveyed were subject to restrictive covenants; the deeds, however, did not contain uniform covenants.

In 1999, the petitioners sold a 103-acre tract to P.E. Roy and his late wife. The deed for this parcel contained two easements over the petitioners' land: a fifty-foot right-of-way to Hall Stream Road and a twenty-foot right-of-way. The fifty-foot right of way would have connected the 103-acre parcel directly to Hall Stream Road, but it has not been constructed.

The deed stated that P.E. Roy and his wife were responsible for the construction costs of the twenty-foot right-of-way and also for its maintenance, as long as they were the " sole users of said right-of-way." The deed further specified that when they were no longer its sole users, the maintenance was to be " apportioned equally between the users." The twenty-foot right-of-way was constructed and now is referred to as " Roy Boulevard." Roy Boulevard connects the 103-acre parcel to " Sugar Shack R.O.W.," which is a road owned by petitioner Raymond Choquette. Roy Boulevard was intended to be a driveway for a future residence on the 103-acre parcel, and was never intended to provide access to permit future development of the parcel; it was, nonetheless, eventually physically widened to fifty feet.

Sugar Shack R.O.W. connects to Hall Stream Road and terminates at the northeastern corner of the 103-acre parcel. Although

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the only way to access Roy Boulevard is to travel from Hall Stream Road over Sugar Shack R.O.W., the deed to P.E. Roy does not expressly grant him an easement over Sugar Shack R.O.W. P.E. Roy's testimony suggests that he has used Sugar Shack R.O.W. to access the northeastern corner of the 103-acre parcel since he acquired title to the property. P.E. Roy has previously performed maintenance and repairs on both Sugar Shack R.O.W. and Roy Boulevard. The petitioners have objected to P.E. Roy's maintenance of both roads, and, at times, have interfered with P.E. Roy's use of the roads.

In 2002, the petitioners filed an " Application for Registration of a Subdivision" (Subdivision Application) with the New Hampshire Attorney General, which proposed a subdivision of their property with six restrictive covenants (application covenants) for the future lots. In May 2002, a Certificate of Registration was recorded in the Coos County Registry of Deeds, but it did not recite or refer to any restrictive covenants.

In 2004, the petitioners conveyed two parcels identified in the Subdivision Application. First, they sold Lot 33-12 to the Robichauds' predecessor-in-title by a warranty deed that contained restrictive covenants that were " substantively and materially different" from the application covenants. Next, the petitioners conveyed Lot 33-13 to P.E. Roy, as trustee of the George M. Roy Trust, by a warranty deed that also included restrictive covenants that were " substantively and materially different" from the application covenants. At the time that these lots were conveyed, no other lots identified in the Subdivision Application had been conveyed, and the application covenants had not been recorded in the Coos County Registry of Deeds.

The Robichauds purchased Lot 33-12 in 2007 by a warranty deed with a description identical to that contained in their predecessor's 2004 deed. In 2010, Jason Roy acquired Lot 33-13 by a warranty deed with a description identical to that in his predecessor's 2004 deed. In 2011, the petitioners notified the Robichauds and Jason Roy that they wanted to amend the deeds for Lot 33-12 and Lot 33-13 ...


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