Todd H. Maddock & a. v. Michael J. Higgins ( 2023 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2022-0234
TODD H. MADDOCK & a.
v.
MICHAEL J. HIGGINS
Argued: May 11, 2023
Opinion Issued: August 23, 2023
Steiner Law Offices, PLLC, of Concord (R. James Steiner on the brief and
orally), and Law Offices of Stephan T. Nix, of Gilford (Stephan T. Nix on the
brief), for the plaintiffs.
Normandin, Cheney & O’Neil, PLLC, of Laconia (William D. Woodbury on
the brief and orally), for the defendant.
DONOVAN, J. The plaintiffs, Todd and Margaret Maddock, appeal an
order of the Superior Court (O’Neill, J.) ruling in favor of the defendant, Michael
Higgins, on the plaintiffs’ petition to quiet title and their request for declaratory
judgment, equitable relief, and a temporary injunction. The plaintiffs argue
that the court erred by: (1) failing to find that monuments in the field control
over bearings or distances in a deed or plan; (2) finding that the plaintiffs did
not establish title by adverse possession; (3) finding that the plaintiffs did not
meet their burden to establish a boundary by acquiescence; (4) dismissing the
plaintiffs’ trespass claim; and (5) finding that the testimony of one of the
defendant’s witnesses was credible.
We conclude that, based upon the record in this case, the trial court
properly found that the field monuments do not control the boundaries
established by the parties’ deeds, properly found that the plaintiffs did not
establish a boundary by acquiescence, properly granted the plaintiffs a
prescriptive easement over the limited adjacent area for the purposes of snow
removal, and properly assessed the credibility of the witnesses. We further
conclude that the trial court committed no error by dismissing the plaintiffs’
trespass claim but reverse, in part, the trial court’s adverse possession decision
as it pertains to the plaintiffs’ claims concerning their driveway and parking
area. Accordingly, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I. Facts
The plaintiffs own real property at 39 Barefoot Place (Maddock Property)
in Gilford. The defendant owns abutting real property at 33 Barefoot Place
(Higgins Property). The two properties are part of the Gunstock Acres
development. The Guyers owned the Maddock Property for nearly twenty years
prior to the plaintiffs’ purchase. Prior to the Guyers, the Halls owned the
Maddock Property for sixteen years. Prior to the defendant, U.S. Bank Trust
(Bank) owned the Higgins Property for approximately ten months, and prior to
the Bank, the Ramsdells owned the Higgins Property for twenty-seven years.
The deed to the Maddock Property describes it as a five-sided property
along Barefoot Place that abuts the Higgins Property. A surveyor in 2019
plotted the plaintiffs’ property boundary lines, and the results of the survey
were similar to the deeded description. The surveyor produced a plan that
depicts a mathematically reconstructed boundary (the Mathematical Line) of
the plaintiffs’ property which cuts through portions of the plaintiffs’ driveway
and parking area and extends to the back of the property, placing portions of
the driveway and parking area, as well as a shed built by the Guyers, south of
the Mathematical Line, and, thus, as part of the Higgins Property. The 2019
survey did not locate any monuments at the north or south end of the
Mathematical Line.
Nevertheless, the 2019 survey found two monuments in the vicinity of
the properties’ boundaries. Both parties were generally aware that there were
monuments on the properties. Monument A is an iron rod next to a stump
located near Barefoot Place road, and Monument B is an iron pipe surrounded
by rocks that sits in the steep, wooded section of the properties. The plaintiffs
concede that the origin of Monument A is unknown. The surveyor believed
that Gunstock Acres set Monument B in the 1970s. Neither the map depicting
Gunstock Acres nor the property deeds mention, or depict, any monuments.
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The parties disagree on the location of the boundary between the two
properties. The plaintiffs assert that their property extends to a line between
monuments A and B (the A-B Line), and the defendant claims that his property
extends to the Mathematical Line. The disputed property sits in the area
between the A-B Line and the Mathematical Line (the Disputed Area). Parts of
the plaintiffs’ driveway, parking area, and the shed built by the Guyers are
located within the Disputed Area.
The driveway and parking area were constructed in 1978 and have
remained in the same location since their construction. The driveway was
paved with asphalt after the plaintiffs purchased the property. When the
Ramsdells purchased the Higgins Property, Dr. Hall informed Ms. Ramsdell
that the Halls’ driveway encroached onto the Higgins Property. The Ramsdells
allowed the Halls to continue their use of the driveway and parking area as
part of a “gentlemen’s agreement” between the neighbors. The Ramsdells never
revoked that permission while the Halls lived there.
When the Halls owned the Maddock Property, they filed multiple site
plans with the Town of Gilford to improve the property, amend the use of the
property, and appeal a prior zoning board decision. Some of the site plans had
accompanying measurements while others did not. Every site plan consisted of
a hand-drawn, four-sided sketch that depicted the house, driveway, and
parking area within the boundaries of the plaintiffs’ property. The Ramsdells,
when present for public meetings regarding those site plans, never objected to
the depicted boundaries.
Ms. Ramsdell never witnessed the Halls perform any actions in the
Disputed Area aside from their use of the driveway and parking area. After the
Guyers obtained title to the Maddock Property, they occasionally cleared brush,
raked leaves, and felled small trees within the Disputed Area. Mr. Guyer
installed the shed in 2010. Additionally, Mr. Guyer occasionally walked a game
trail in the Disputed Area. During trial, the Guyers mentioned a fire pit within
the Disputed Area, but the approximate location given for the fire pit included
land outside of the Disputed Area. At no point did the Guyers post signage or
mark trees in the Disputed Area, nor did they conduct significant tree cutting
in that area.
When the Ramsdells cut down trees on their property (which was
subsequently acquired by Higgins), they refrained from cutting down any trees
within the Disputed Area at the Guyers’ request. Ms. Ramsdell testified that
she and her husband refrained from further cutting in an effort to be good
neighbors and not because of a belief or recognition that the Guyers owned or
controlled the Disputed Area. The Ramsdells occasionally entered the driveway
to retrieve their dogs or talk to the Guyers. After acquiring ownership of the
Maddock Property from the Guyers, plaintiff Todd Maddock cleared brush and
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occasionally walked in the Disputed Area with his dog. The plaintiffs did not
post signage in the Disputed Area.
In 2019, after the survey, the defendant cut down several trees in the
Disputed Area. Shortly thereafter, the plaintiffs filed a petition to Quiet Title of
the Disputed Area and later requested Declaratory Judgment, Equitable Relief,
and a Temporary Injunction. The plaintiffs asserted causes of action for
adverse possession, boundary by acquiescence, and timber trespass against
the defendant. The superior court held a seven-day bench trial. The court
ruled in favor of the defendant, finding there was no adverse possession or
boundary by acquiescence, and, as a result, no timber trespass. The court also
granted the plaintiffs a prescriptive easement covering the driveway and
parking area, along with a limited adjacent area for the purpose of clearing
snow. The court denied the plaintiffs’ motion to reconsider, and this appeal
followed.
II. Analysis
When reviewing a trial court’s decision rendered after a trial on the
merits, we will uphold the trial court’s factual findings and rulings unless they
lack evidentiary support or are legally erroneous. Loon Valley Homeowner’s
Ass’n v. Pollock, 171 N.H. 75, 78 (2018). We do not decide whether we would
have ruled differently than the trial court, but, rather, whether a reasonable
person could have reached the same decision based upon the same evidence.
Id. We defer to the trial court’s judgment on such issues as measuring the
credibility of witnesses and determining the weight to be given the evidence.
Id. It is within the province of the trial court to accept or reject, in whole or in
part, whatever evidence was presented. Id. We review the trial court’s
application of the law to the facts de novo. Id.A. Control of Monuments Generally
The plaintiffs maintain that the trial court erred by failing to conclude
that monuments A and B established the boundary between the two properties.
They rely upon case law from the nineteenth century that states “monuments
control the language of a description, if named in the deed, and then existing
on the ground; if named in the deed, and afterward erected on the ground; and,
though not named in the deed, yet if subsequently erected by the parties on the
ground.” Colby v. Collins, 41 N.H. 301, 304 (1860) (citations omitted and
emphasis added). The plaintiffs assert that Colby, and its progeny, establish
that monuments on the ground control the boundary between two properties
as a matter of law, regardless of what may be written in a deed. In other
words, they argue that simply because monuments exist, they control. We
disagree.
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In Colby, we explained that monuments not described in a deed would
control when, after a deed had been written, the adjoining landowners agreed
to erect monuments to settle the property line between them and, in effect,
change the description in the deed. Id. at 303-04 (holding that monuments
can alter the property line in a deed “where a party has himself a title to land
having a certain description, and he afterward, by agreement with an adjoining
owner, settles the line between them so as to change that description”). In
other cases in which we have held that monuments controlled, either the deeds
mentioned the monuments or the parties agreed to the existence of the
monuments upon the conveyance of the property. See Seely v. Hand, 119 N.H.
303, 305 (1979) (where the deed specifically described stone posts delineating
corners of the property but the posts were gone, their locations could still be
determined from external evidence); Fagan v. Grady, 101 N.H. 18, 19-20 (1957)
(determining the deed addressed the controlling monument, extrinsic evidence
supported the existence of that monument, and a surveyor placed a new
monument in the same location at a later date); Cunningham v. Curtis, 57 N.H.
157, 159 (1876) (concluding that a fence known to the parties at time of
conveyance was deemed a monument).
Here, neither the deeds nor the plans by the original developer mention
any monuments when describing the properties. Although the record is
unclear about who placed the monuments, the evidence submitted at trial
established that neither the parties nor their predecessors in title did so.
Further, the plaintiffs concede that the origin of Monument A is unknown.
Therefore, in contrast to prior cases where we have recognized that monuments
controlled over a deed or other property description, the facts here do not
demonstrate that the parties understood the monuments to constitute or mark
a boundary. See Fagan, 101 N.H. at 19-20 (controlling monuments were
mentioned in the deed and supported by extrinsic evidence); see also Colby, 41
N.H. at 304 (reasoning that if the parties had set monuments upon a line that
they made and upon which they agreed, then the land within that established
boundary would be conveyed regardless of the description in the deed); Clough
v. Bowman, 15 N.H. 504, 511 (1844) (espousing that parties can bind
themselves by agreeing “upon a dividing line between them by parol and
establish[ing] monuments”). Accordingly, we conclude that the trial court did
not err in determining that the monuments in this case do not, in and of
themselves, establish boundary lines as a matter of law.
B. Adverse Possession
In the alternative, the plaintiffs argue that they have title to the entirety
of the Disputed Area through adverse possession. The plaintiffs argue that the
trial court erred by: (1) failing to find that the documents that the plaintiffs
submitted, including the filings with the town offices and the hand-drawn site
plans, were sufficiently reliable to establish that the plaintiffs adversely
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possessed the Disputed Area under color of title; and (2) finding that the
character of use of the Disputed Area did not demonstrate adverse possession.
We first address the plaintiffs’ argument that they adversely possessed
the Disputed Area under color of title. The doctrine of color of title is based
upon the concept that possession of an instrument showing title presumptively
amounts to notice to the true owner of the extent of the adverse possessor’s
claim. Dame v. Fernald, 86 N.H. 468, 470-71 (1934). When a party enters
property under color of title, the party is presumed to enter according to title,
thereby gaining constructive possession of the whole of the land, or the part
that is improved. Bailey v. Carleton, 12 N.H. 9, 15 (1841). By nature, “color of
title may both show the extent and the character of the possession under it.”
Dame, 86 N.H. at 471. For an instrument to provide color of title, it must
define the bounds of the disputed tract. Id. at 470. If no bounds are
described, “there can be no notice of the extent of the claim, and an instrument
defective in that particular cannot give color of title.” Id. at 471.
The plaintiffs argue that the trial court erred in finding that the 1978,
1983, and 1992 site plans — hand-drawn sketches created by their
predecessors in title — “did not provide color of title.” Specifically, they assert
that the trial court erred in concluding that the site plans were not reliable and
did not accurately portray the Maddock Property. We construe the plaintiffs’
argument as challenging the weight the trial court accorded the site plans in
resolving the plaintiffs’ color of title claim. However, trial courts are free to
determine the appropriate weight to be given site plans. See Perry v. Parker,
101 N.H. 295, 297 (1958) (stating that the trial court could find the plan
“reliable and helpful in deciding the boundary dispute” based upon “its age,
appearance and custody” (emphasis added)); see also DiMinico v. Centennial
Estates Coop., 173 N.H. 150, 156 (2020); Dame, 86 N.H. at 470-71. “We defer
to the trial court’s determination regarding the weight to be given evidence
unless that determination is unsupported by the evidence or is erroneous as a
matter of law.” DiMinico, 173 N.H. at 156.
Here, although all of the site plans and public documents upon which
the plaintiffs rely depict the Maddock Property as a four-sided lot, the deed to
the Maddock Property lays out dimensions for a five-sided lot. Further, the site
plans are hand-drawn sketches, never identify the A-B monuments, and
include dimensions that are not consistent with any of the plans or the deed.
The surveyor, who was an expert witness for the plaintiffs, testified to the
general inaccuracy of the site plans and stated that they were not designed to
specifically determine the boundary of the Maddock Property. Accordingly, we
conclude that the evidence in the record supports the trial court’s
determination that the site plans were unreliable and failed to accurately depict
the bounds of the Maddock Property, and, therefore, did not prove the
plaintiffs’ color of title claim. See DiMinico, 173 N.H. at 156; see also Dame, 86
N.H. at 471. We decline to address the plaintiffs’ additional arguments
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regarding notice or occupation under color of title because they rely on the
premise that the site plans established color of title.
Next, we address the plaintiffs’ argument that the character and history
of the use and occupation of the Disputed Area was sufficiently notorious to
provide notice to the title holders of the Higgins Property. “In order to obtain
title by adverse possession, the adverse possessor must prove, by a balance of
probabilities, twenty years of adverse, continuous, and uninterrupted use of
the land claimed so as to give notice to the owner that an adverse claim is
being made.” Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H.
29, 33 (2007). “In addition, adverse use is trespassory in nature, and the
adverse possessor’s use of the land must be exclusive.” Id. “The success or
failure of a party claiming adverse possession is not determined by the
subjective intent or the motives of the adverse possessor.” Id. “Rather the acts
of the adverse possessor’s entry onto and possession of the land should,
regardless of the basis of the occupancy, alert the true owner of the cause of
action.” Id. “The law requires more than occasional, trespassory maintenance
in order to perfect adverse title; the use must be sufficiently notorious to justify
a presumption that the owner was notified of it.” Id. at 34.
The nature of use of property can be inferred from its manner, character,
and frequency, as well as the situation of the parties. O’Malley v. Little, 170
N.H. 272, 278 (2017). “Whether the use of property has been adverse or
permissive is a matter of fact to be determined by the trial court.” Id.Permissive use is not adverse. See id. When evaluating the merits of an
adverse possession claim, courts must strictly construe the evidence of adverse
possession of land. Blagbrough, 155 N.H. at 33.
Here, the Halls used the driveway under a “gentlemen’s agreement” with
the Ramsdells and were not seen otherwise using the Disputed Area. The
Guyers occasionally cleared brush, raked leaves, felled small trees, and walked
a game trail in the Disputed Area. Mr. Guyer installed a shed in the Disputed
Area in 2010. The Guyers placed a fire pit in the general area, but the location
was not made clear during trial and its use was only occasional. On this
record, we conclude that the evidence supports the trial court’s conclusion that
the actions by the Guyers do not rise to a level of notoriety that would support
adverse possession of the wild, undeveloped portion of the Disputed Area. See
Cushing v. Miller, 62 N.H. 517, 525 (1883) (holding occasional removal of
timber on a wild lot is not sufficiently adverse) overruled on other grounds by
Dame, 86 N.H. at 471; Blagbrough, 155 N.H. at 33-34 (holding that a
combination of: (1) routinely entering a parcel for walks and recreational
activities; (2) allowing use of the parcel for children to play on; (3) collecting
Christmas trees from the area; and (4) mowing grass, removing trees, and
planting some flowers on the parcel did not support a claim for adverse
possession). The only potential claim of notoriety upon which the plaintiffs can
rely is the erection of the shed and its continued use, but the use of the shed
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does not meet the twenty-year requirement to establish adverse possession.
See Riverwood Commercial Prop’s v. Cole, 138 N.H. 333, 336 (1994) (opining
that improvements to the land were the strongest claims for adverse
possession, but did not meet the twenty-year requirement).
The plaintiffs, however, claim that the wild nature of the Disputed Area
limited its use, and, accordingly, their use of the Disputed Area, and that of
their predecessors, was sufficiently notorious. We recognize that “[t]he kind
and frequency of acts sufficient to support a finding of adverse possession
depends somewhat on the condition of the property and the uses to which it is
adapted in reference to the circumstances of the possessor.” Page v. Downs,
115 N.H. 373, 374 (1975) (emphasis added). Nevertheless, even when a
property is deemed wild, like portions of the Disputed Area in this case, the
occasional clearing of trees from a wild area alone does not “constitute the
visible, continuous, and exclusive occupation necessary to give title by
possession.” Cushing, 62 N.H. at 525. Here, the record supports the trial
court’s findings that the evidentiary history of the use of the wild portions of
the Disputed Area “hardly rises above occasional maintenance of a forested
area.” Accordingly, similar to our holding in Cushing, even when considering
the wild nature of the Disputed Area, we conclude that the trial court did not
err in finding that the historical use of the wild portion of the Disputed Area
was not sufficiently notorious to support a claim for adverse possession. See
Blagbrough, 155 N.H. at 34.
To the extent that the plaintiffs argue that monuments A and B also gave
notice to the owners of the Higgins Property, we have held that “it is the
occupation itself that furnishes the notice.” Minot v. Brooks, 16 N.H. 374, 378
(1844); see also Mastroianni v. Wercinski, 158 N.H. 380, 383 (2009) (notoriety
rests on the public policy that owners need to be sufficiently put on guard to
take preventative action before losing property rights). Accordingly, the
monuments are not relevant to determining whether the use and occupation of
the Disputed Area was sufficiently notorious to provide notice to the
titleholders of the Higgins Property. Therefore, we conclude that the trial court
did not err in failing to find that the presence of the monuments put the
owners of the Higgins Property on notice.
In the alternative, the plaintiffs also argue that the trial court erred in
finding that the plaintiffs did not establish adverse possession of the driveway,
the parking area, and the adjacent area used for discarding snow that extends
into the Disputed Area. In the plaintiffs’ view, the court should have found
adverse possession as to that portion of the Disputed Area because their use of
the driveway and parking area, as well as their predecessors’ use, was
exclusive, and they were not ousted. On the other hand, the defendant argues
that the trial court correctly granted only a prescriptive easement over the
driveway, the parking area, and a limited adjacent area because the plaintiffs,
and their predecessors in title, did not engage in exclusionary activity.
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Here, the trial court found, and the defendant does not dispute, that the
evidence presented at trial supported a finding that the plaintiffs maintained a
prescriptive easement over the driveway and the parking area, as well as a
limited adjacent area. Specifically, the trial court found that “the evidence
presented at trial was insufficient to establish the plaintiff’s exclusive use
within the prescriptive easement area.” A claim of adverse possession, as
opposed to a claim of a prescriptive easement, requires proof that the
possessor’s use was exclusive. Compare O’Malley, 170 N.H. at 276 (“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.”
(quotation omitted)), with Stowell v. Andrews, 171 N.H. 289, 297 (2018) (“A
party claiming to have a prescriptive easement must prove by a balance of
probabilities twenty years’ adverse, continuous, uninterrupted use of the land
claimed in such a manner as to give notice to the record owner that an adverse
claim was being made to it.”). Accordingly, in order to resolve the plaintiffs’
adverse possession claim with respect to the driveway and parking area, we
must determine whether the record supports the trial court’s conclusion that
the plaintiffs failed to satisfy their burden of proving that their use of those
portions of the Disputed Area was exclusive. See O’Malley, 170 N.H. at 276
(“The adverse possessor must prove these elements by a balance of
probabilities.”). On the record before us, we conclude that the trial court’s
exclusivity finding with respect to the driveway and parking area lacks
evidentiary support. See Pollock, 171 N.H. at 78.
Based upon their conversation with the Halls, the Ramsdells knew that
the driveway and parking area extended onto the Higgins Property. The
subsequent “gentlemen’s agreement” between the Ramsdells and the Halls
terminated in 1994 when the Guyers purchased the Maddock Property. See
Blaisdell v. Portsmouth, 51 N.H. 483, 485 (1871) (noting that a parol license
terminates when property is conveyed). The Ramsdells never extended a new
agreement to the Guyers, nor did they confront the Guyers despite having
notice of the continued adverse use of the driveway.
Moreover, a review of the record fails to show that anyone other than the
owners of the Maddock Property used the driveway or the parking area. The
Ramsdells only entered the driveway to retrieve their dogs or to occasionally
talk with the Guyers. There is no evidence as to whether the Bank took any
action regarding the driveway or the parking area when it possessed the
Higgins Property. During their possession, the plaintiffs made improvements
to the driveway and parking area without objection or interference by the
defendant. Although the trial court appears to have relied upon the fact that
the plaintiffs and Guyers did not post signage on the driveway, the court did
not cite any authority, nor are we aware of any, that requires signage in order
for a use to be exclusive. Accordingly, we conclude that the use of the driveway
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and parking area, by the plaintiffs and the Guyers, was exclusive in nature and
lasted more than twenty years.
Because we have determined that the use of the driveway and parking
area was exclusive, we must also address the defendant’s argument that the
entry by the Ramsdells amounted to an ouster. Mere entry by the owner is not
enough to destroy a claim of adverse possession. See O’Malley, 170 N.H. at
276. Instead, “[o]uster of an adverse possessor requires conduct that puts a
reasonably prudent person on notice that he or she actually has been ousted.”
Id. In O’Malley, we concluded that an individual needed to do more than visit
the disputed area and make occasional claims, through telephone or email,
that the abutting property owners’ improvement encroached on their property
to show ouster. Id. at 277. Here, the Ramsdells never raised any objections to
the Guyers, verbal or otherwise, about the driveway and they only occasionally
visited the portion of the Disputed Area containing the driveway to talk with
the Guyers or retrieve their dogs. Thus, we conclude that their actions were
not sufficient to show ouster. See id. For the foregoing reasons, we reverse the
trial court on this limited basis and conclude that the plaintiffs adversely
possessed the portions of the driveway and parking area that extended into the
Higgins Property.
As to the adjacent area used for snow removal, the trial court found, and
the defendant does not challenge, a prescriptive easement for a “limited
adjacent area required for the purpose of clearing snow.” The trial court
granted a prescriptive easement, as opposed to a finding of adverse possession,
based upon its finding that the plaintiffs failed to present sufficient evidence
that the use of the adjacent area was exclusive. On appeal, although the
plaintiffs claim adverse possession of the limited adjacent area, they provide no
argument, nor point to any evidence in the record, to support their exclusive
use of this area. Upon reviewing the record, we agree with the trial court that
there is insufficient evidence to support a finding that the plaintiffs’ use of the
adjacent area was exclusive, given that the record suggests the adjacent area
was only used for depositing snow during the winter months. See Blagbrough,
155 N.H. at 33 (stating that the party seeking to obtain title by adverse
possession must prove the elements of the claim by a balance of probabilities).
Accordingly, we affirm the prescriptive easement over the limited adjacent area
for the purposes of snow removal.
C. Boundary by Acquiescence
The plaintiffs argue that, even if adverse possession is not found, the
trial court erred in concluding that the plaintiffs failed to establish a boundary
by acquiescence. Boundary by acquiescence is established when a party
proves that: (1) parties are adjoining landowners; (2) who have occupied their
respective lots up to a certain boundary; (3) which they have recognized as the
true boundary separating the lots; and (4) have done so for at least twenty
10
years. O’Hearne v. McClammer, 163 N.H. 430, 435 (2012). A boundary by
acquiescence will prevail over the description of deeds and is conclusive upon
successors in title. Id.The trial court found that the plaintiffs failed to meet the second and
third elements. Specifically, the court found that the owners in title of the
Maddock Property did not occupy up to the A-B Line because their use of the
Disputed Area was not sufficient to grant boundary by acquiescence, the site
plans were not sufficiently accurate to demonstrate boundary lines, and there
was insufficient evidence to show that all parties recognized the A-B Line as the
true boundary. On appeal the plaintiffs argue that the trial court erred
because: (1) the site plans showed the Maddock Property extending to the A-B
Line, which served as notice of a claim to the Disputed Area; and (2) the owners
of the Higgins Property did not object to the depicted boundaries or the
subsequent use of the Disputed Area, and they, therefore, acquiesced to the
Maddock Property extending to the A-B Line. We are unpersuaded.
As discussed earlier, the site plans did not establish color of title over the
Disputed Area, and the use of the Disputed Area was not sufficiently notorious
to establish adverse possession. Thus, the plaintiffs fail to show that they, or
their predecessors in title, occupied the Disputed Area up to the A-B Line.
Because they fail to meet the second element, we conclude that the plaintiffs
failed to establish a boundary by acquiescence.1
D. Credibility of Witness Testimony
Finally, the plaintiffs argue that the court erred in finding Ms. Ramsdell’s
testimony to be credible because she was “coached” by the defendant.
Credibility is a determination for the trial court and we defer to its judgment.
Loon Valley, 171 N.H. at 78. Here, our review of the record does not support
the plaintiffs’ claim that the witness was “coached,” and because “the trial
court had the advantage of seeing and hearing the [witness] on the stand, we
will not substitute our judgment for that of the trial court.” Id. at 81 (quotation
omitted).
III. Conclusion
For the foregoing reasons, we conclude that the trial court did not err in
determining that the plaintiffs did not establish ownership over the entirety of
the Disputed Area, either by monuments controlling as a matter of law, adverse
possession, or boundary by acquiescence. We also affirm the prescriptive
easement over the limited area adjacent to the driveway and parking area for
the purpose of clearing snow. However, the record before us demonstrates that
1 Because we agree with the trial court that the plaintiffs do not hold title to the wild portion of the
Disputed Area, there is no need to address the timber trespass claim.
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the plaintiffs adversely possessed the portions of the driveway and parking area
that extend into the Higgins Property. Accordingly, we reverse that portion of
the trial court’s decision and remand for further proceedings consistent with
this opinion.
Affirmed in part; reversed in part;
and remanded.
MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.
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