JANET BALISE & a.
BRAD BALISE & a.
Argued: November 16, 2017
Leslie, Kidder, Sayward & Loughman, PLLC, of Salem (David
W. Sayward on the brief and orally), for the plaintiffs.
Forman, Clark, Pockell & Associates, P.A., of Londonderry
(Steven A. Clark on the brief and orally), for defendants
Brad Balise, Jon Carpenter, and Winifred Carpenter.
Brad Balise (Brad), Jon Carpenter, and his mother, Winifred
Carpenter, appeal the entry of judgment by the Trial Court
(Anderson, J.) in favor of the plaintiffs, Janet and
Stanley Balise, on the plaintiffs' petition to quiet
title and for a declaratory judgment that they have a right
to use a discontinued portion of a road to access their
property and install utilities to service it. We affirm.
relevant facts follow. The parties own property in Windham.
The plaintiffs own tax lot 21-G-600 (Lot 600), Brad (the
plaintiffs' son) owns tax lot 21-G-700 (Lot 700), and
Winifred owns tax lot 24-G-100 (Lot 100). The plaintiffs
formerly owned Lot 700. They sold it to Brad in 1999.
100 and 700 are adjacent to one another and have frontage on
Range Road, a public way. Lot 600 abuts Lot 700 and has no
frontage on Range Road or on any other public way. The
disputed road, which was discontinued in 1962, runs
perpendicular to Range Road. The disputed road lies between
Lots 700 and 100. Lot 600 abuts it.
1970's, a wooden barrier was placed across the disputed
road. Since 1998, Brad has posted "No Trespassing"
signs on the road. He has also parked vehicles and placed
logs or boulders on it.
plaintiffs seek to construct a residential dwelling on Lot
600, using the disputed road to access their property and
provide utilities to it. In 2015, they brought the instant
lawsuit against the defendants. The plaintiffs sought a
declaration that, pursuant to RSA 231:43 (Supp. 2016), they
have a right to use the disputed road to access their lot,
which has not been "extinguished by adverse possession
or other actions of the Defendants, " and a declaration
that their statutory right of access includes a right to
install utilities in the disputed road. Thereafter, the
plaintiffs moved for summary judgment as to both their claim
of a right to use the disputed road for access to their lot
and their claim of a right to install utilities in the
disputed road. The defendants moved for summary judgment only
as to the plaintiffs' claim of a right to install
trial court granted the plaintiffs' first requested
declaratory judgment, ruling that they "have a statutory
right of access" over the disputed road under RSA
231:43, III, "which the Defendants have not extinguished
by adverse possession." However, the trial court denied
the parties' cross-motions for summary judgment as to the
plaintiffs' second requested declaratory judgment,
deciding that whether the plaintiffs "are able to run
utilities . . . is subject to the rule of reason, which is a
question for the trier of fact." Subsequently, the court
held a two-day bench trial, and after reviewing the evidence,
which included a view of the disputed road and surrounding
property, determined that it was reasonable for the
plaintiffs to install a single utility pole on the disputed
road and to install utilities underneath the road. This
appeal, the defendants contest the trial court's summary
judgment rulings. They argue that, in granting partial
summary judgment to the plaintiffs, the trial court erred by:
(1) finding that the plaintiffs have a statutory right to
access their lot over the disputed road; (2) determining
that, in their deed conveying Lot 700 to Brad, the plaintiffs
did not release their right to use the disputed road to
access Lot 600; (3) granting summary judgment to the
plaintiffs on the issue of adverse possession; and (4)
determining that whether the plaintiffs "are able to run
utilities . . . is subject to the rule of reason." We
address each argument in turn.
reviewing a trial court's rulings on cross-motions for
summary judgment, we consider the evidence in the light most
favorable to each party in its capacity as the nonmoving
party and, if no genuine issue of material fact exists, we
determine whether the moving party is entitled to judgment as
a matter of law. JMJ Properties, LLC v. Town of
Auburn, 168 N.H. 127, 129 (2015). If our review of that
evidence discloses no genuine issues of material fact,
meaning facts that would affect the outcome of the
litigation, and if the moving party is entitled to judgment
as a matter of law, then we will affirm the grant of summary
judgment. Sabinson v. Trustees of Dartmouth College,
160 N.H. 452, 455 (2010). We review the trial court's
application of the law to the facts de novo.
Brown v. Concord Group Ins. Co., 163 N.H. 522,
defendants first argue that the trial court misconstrued RSA
231:43, III as granting the plaintiffs a right to access
their lot over the disputed road. The defendants contend that
RSA 231:43, III "was adopted to protect a landowner from
being deprived of its only means of access, " and that,
because the plaintiffs have other means of access to their
lot, the statute does not grant them a right of access over
the disputed road. They argue that the plaintiffs'
alleged other means of access raises a genuine issue of
material fact as to whether the plaintiffs are entitled to a
statutory right of access. For the purposes of addressing the
defendants' argument, we assume without deciding that the
plaintiffs have other means of access to their lot.
this issue requires us to determine whether the trial court
correctly interpreted RSA 231:43, our standard of review is
de novo. See Cady v. Town of Deerfield, 169
N.H. 575, 577 (2017). In matters of statutory interpretation,
we are the final arbiter of legislative intent as expressed
in the words of the statute considered as a whole.
Id. We first examine the language of the statute and
ascribe the plain and ordinary meanings to the words used.
Id. We interpret legislative intent from the statute
as written and will not consider what the legislature might
have said or add ...