DWIGHT K. STOWELL, JR.
JEFFREY ANDREWS & a.
Argued: February 7, 2018
Little, Rosenblatt & Manson, pllc, of Manchester
(Kathleen M. Mahan on the brief), and Sullivan &
Worcester LLP, of Boston, Massachusetts (Nicholas M.
O'Donnell on the brief and orally), for the plaintiff.
Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C.
Schuster on the brief and orally), for the defendants.
an appeal and cross-appeal of rulings made by the Superior
Court (McNamara, J.) regarding the claims of the
defendants, direct or beneficial owners of real property on
Great Island, to deeded or prescriptive easements to traverse
a footpath (the Circle Trail) over the Great Island lot owned
by the plaintiff, Dwight K. Stowell, Jr. Great Island is on
Lake Sunapee and lies partially in Newbury and partially in
Sunapee. Stowell's lot is primarily in Newbury, although
a small portion of it is in Sunapee. Some of the defendants
have Great Island lots in Newbury (the Newbury defendants),
while others have Great Island lots in Sunapee (the Sunapee
defendants). Because Great Island has no public roads,
footpaths are used to get from one place to another on the
island. The Circle Trail goes around the perimeter of the
ruling on pre-trial cross-motions for summary judgment, the
trial court decided that the Newbury defendants have deeded
easements to use the Circle Trail as it crosses the Newbury
portion of Stowell's lot. The court rejected the
assertion that those easements were extinguished because the
purpose for which they were created - to provide access to
steamboats - became impossible to achieve once the steamboat
wharves were destroyed in the hurricane of 1938. Stowell
challenges that ruling in his cross-appeal. We affirm the
trial court's determination.
a bench trial that included a view, the trial court ruled
that: (1) only those Newbury defendants who testified at
trial have prescriptive easements to use the Circle Trail
over the Sunapee portion of Stowell's lot; (2) only the
single Sunapee defendant who testified at trial has a
prescriptive easement to use the Circle Trail over both the
Newbury and Sunapee portions of Stowell's lot; and (3)
Stowell has the unilateral right to relocate the Newbury
defendants' deeded easements from the front to the back
of his property. The defendants challenge those rulings in
their appeal. We vacate the trial court's rulings
regarding the defendants' prescriptive easements and
Stowell's right to relocate the deeded easements, and we
remand for further proceedings consistent with this opinion.
Stowell's Cross-Appeal of the Trial Court's Summary
first address Stowell's challenge to the trial
court's summary judgment ruling that the deeded easements
of the Newbury defendants were not extinguished when the
steamboat wharves were destroyed. In reviewing the 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.
Granite State Mgmt. & Res. v. City of Concord,
165 N.H. 277, 282 (2013). If our review of that evidence
discloses no genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law, then we
will affirm the grant of summary judgment. Id. We
review the trial court's application of the law to the
facts de novo. Cloutier v. State, 163 N.H.
445, 451 (2012).
trial court recited the following facts in its summary
judgment order. In 1890, the original grantors owned the
portion of Great Island located in Newbury. According to the
1890 "Plan of Cottage Lots on Great Island in Lake
Sunapee, N.H.," the original grantors subdivided the
Newbury portion of the island into 45 lots. (Quotation
omitted.) The plan did not identify any footpaths or wharves.
late 1800s and early 1900s, people used steamboats to travel
to and from Great Island. Beginning in October 1892, the
original grantors conveyed lots along the Newbury shore to
various individuals through deeds. The first such deed,
conveying Lot 16, contained the following easement clause:
Hereby conveying to said grantee and his assigns the right of
a foot path across any of the lots numbered on the before
mentioned "plan" to reach the wharf or wharves that
may be established on the shore of said Island, and reserving
to ourselves and assigns the right of a similar foot path
through or over the within named lot No. 16.
first steamboat wharf on the Newbury side of the island,
known as Auburn Landing, was built sometime after March 1893.
The second steamboat wharf on that side of the island, known
as Melrose Landing, was built sometime after October 1902.
1893 and 1902, the original grantors conveyed 11 additional
shoreline lots; after the Auburn and Melrose Landings were
built, the grantors conveyed the remaining shoreline lots.
Most of the deeds thus conveyed contained an easement clause.
Although those clauses differ slightly, their substance is
substantially the same: they convey to the grantee the right
to cross all or some of the lots shown on the plan, by
footpath, to reach the steamboat wharves. The lots to be
crossed are variously referred to as the "lots in this
range," "any of the lots," "the other
lots," "all the lots north or south of this
lot," "all the lots," "all the adjoining
lots," and "all the lots on either side of these
lots." (Quotations omitted.)
service on Lake Sunapee ended by the 1930s, and the 1938
hurricane destroyed the steamboat wharves. The wharves were
never rebuilt. After the wharves were destroyed and before
electricity came to the island in the mid-1900s, staples such
as bread, milk, and ice were delivered to island residents
via boat; the delivery person would use the island's
footpaths. The properties on Great Island now have individual
docks for boats, which are used to travel to and from the
island. The footpaths have been used to: travel to island
gatherings; attend island meetings; visit neighbors; conduct
island business; and access cottages in the case of an
emergency. They also have been used for exercise and/or
trial, motions were filed disputing whether the deeded
easements remained viable after the steamboat wharves were
destroyed. The trial court, relying upon the plain language
of the deeds and agreeing with the defendants, ruled that the
destruction of the wharves did not extinguish the easements.