Belknap

No. 7001

#### Robert J. Regan & *a.*v. Syren Hovanian & *a.*

January 31, 1975

*Wescott, Millham*&? *Dyer (Mr. Peter V. Millham*orally) for the plaintiffs.

*41*Decker & Hemeon and Philip T. McLaughlin (Mr. McLaughlin*orally) for the defendants.

Grimes, J.

The main issue in this case is whether the evidence supported the findings and rulings that plaintiffs have an easement running to Lake Winnipesaukee over an eight-foot strip of land, title to which was found to be in defendants.

Plaintiffs brought this petition to quiet title to an eight-foot strip of land which is a portion of Morris Avenue shown on a plan of lots referred to in deeds by which both plaintiffs and defendants obtained their title to their respective lots. A hearing was held before a Master *(Leonard C. Hardwick,*Esq.) who ruled that, although defendants had title to the eight-foot strip, the plaintiffs were entitled to use it for access to the lake, sun bathing, access to boats, and other uses which would customarily go with a waterfront interest. The master’s report was approved by *Batchelder,*J., and defendants’ exceptions were transferred by *Keller,*C.J.

The disputed land lies on the shore of Lake Winnipesaukee in that part of Laconia known as the Weirs. It was originally part of a large tract owned by the Winnipesaukee Camp Meeting Association, hereinafter called the association. Sometime in the late eighteen hundreds, the land was divided into lots with streets, all of which was shown on a plan which was recorded in the Belknap County Registry of Deeds. The plan shows a street called Lake Shore Avenue running along the shore of the lake in a generally north-south direction with the lake as the easterly boundary. Streets, of which Morris Avenue was one, ran parallel with one another in a generally east-west direction leading to Lake Shore Avenue. Plaintiffs now own a plot on the northerly side of Morris Avenue and defendants own land between plaintiffs’ land and the lake. The eight-foot strip lies between Lake Shore Avenue and the lake and is opposite the base of Morris Avenue. Sometime in the early nineteen hundreds, after all lots on the plan had been sold, the association began selling narrow lots on the lake shown on a later plan thus establishing an easterly sideline for Lake Shore Avenue where none, other than the lake, had hitherto been shown.

By deed dated November 24, 1961, recorded January 11, 1962, the association conveyed to New Hampshire Timbers Inc., its remaining land including all right, title and interest it may have had in all streets including Morris Avenue, subject, however, to all existing easements in favor of certain corporations such as the *42Public Service Company and also subject to “whatever rights the abutting owners ... may have in and to the streets ...

New Hampshire Timbers Inc. in 1963 conveyed to plaintiffs’ predecessor in title described by metes and bounds an eight-foot strip running to the lake which constituted the northerly half of Morris Avenue along its entire length to the lake. The easterly part of this strip between Lake Shore Avenue and the lake is the land in question.

Previously, however, by deed dated September 22, 1941, one LaPierre, a predecessor in title of the defendants, conveyed this same disputed eight-foot strip to one Lang, also a predecessor in title of the defendants. That deed stated that it was the “same premises conveyed to the Grantors by the Winnipesaukee Camp Meeting Asso. Nov. 21, 1925. This lot being subject to the conditions stipulated in said Winnipesaukee Camp Meeting Asso. deed”.

Thereafter, this eight-foot strip came through various conveyances to the defendants. Each deed in the chain, however, contained the identical reference to the same conditions. The master found that these conditions were “apparently unknowable.” However, there is no record of any conveyance of this eight-foot strip to anyone by the association prior to the 1961 deed to Timbers, and LaPierre testified that none had been made to him although he testified that his mother had told him she had bought it.

The master found that the original development “was laid out so that occupants of the development would have access to and use of the lake facilities”. He also found that “[a]ll purchasers of lots had notice of the plans and took their title subject to whatever rights such plans may have indicated to others”. There was evidence that the eight-foot strip in question was used from time to time by the plaintiffs and their predecessors in title to reach the lake for various purposes.

The master found that none of the “parties hereto had such continuous, exclusive or hostile possession of the eight-foot strip for a period of twenty years or more as would give to any exclusive title or possession”. He further found that the defendants acquired title to the eight-foot strip but that on all the evidence their title was not such as to bar plaintiffs from the use of the strip. The master’s findings were supported by the evidence and his rulings were correct.

Plaintiffs and their predecessors and defendants and their predecessors all took title with reference to the same plan which showed *43the various streets including Morris Avenue and Lake Shore Drive running to the lake. Implied easements thereby arose giving plaintiffs the right to use these streets to reach the lake. *Douglass v. Company,*76 N.H. 254, 81 A. 1086 (1911); *McCleary v. Lourie,*80 N.H. 389, 117 A. 730 (1922).

Defendants’ title is based upon adverse possession under color of title which by its terms is subject to unknown conditions. But the possession of the defendants, although sufficient to acquire title, was not such as to extinguish the plaintiffs’ easement. *New England Box Co. v. Wood,*81 N.H. 124, 123 A. 826 (1923); *Howard v. Britton,*67 N.H. 484, 41 A. 269 (1893); 3 American Law of Property §§ 15.13-.14 (1952, Supp. 1962); Annot., 25 A.L.R.2d 1265 (1952, Supp. 1970). The very terms of defendants’ deed giving color of title showed that the title under which they claimed was not absolute and this limits the character of the possession under it. *Dame v. Fernald,*86 N.H. 468, 471, 171 A. 369, 370-71 (1934); *Barker v. Company,*78 N.H. 160, 97 A. 749 (1916). Also, the master has found on adequate evidence that defendants’ possession was not so continuous, exclusive or hostile as to give them exclusive title. Unlike the situation in the case of *Nashua Hospital v. Gage,*85 N.H. 335, 159 A. 137 (1932), the evidence in this case does not dictate a finding of abandonment by the plaintiffs or their predecessors. Here, the master’s finding that plaintiffs retained their rights to the use of the disputed land was supported by the evidence and the law.

Defendants contend that they should have been allowed to cross-examine their own witness who was a predecessor in title of the plaintiffs. Not only did defendants take no exception to the master’s ruling, but on the record before us we cannot say that the master was in error.

*Exceptions overruled.*

All concurred.

*48Senate President Alf E. Jacobson, by Peter J. Cotch, administrative assistant to the senate president, and Senator C. Robertson Trowbridge, each filed a memorandum in support of an affirmative answer to the question whether the president of the senate is prohibited from holding only his office as president when acting as governor.