NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well

as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by e

- mail at the following address: reporter@courts.state.nh. us

. Opinions are available on the Internet by 9:00 a.m. on the morning of their

release. The direct address of the court ’ s home page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire

No. 2019

- 0197

EDWARD E. FAVART

v.

STEVEN M. OUELLETTE & a

.

Argued: January 14, 2020 Opinion Issued: May 22, 2020

Bradley & Faulkner, P.C. , of Keene ( Gary J. Kinyon on the brief and

orally), for the plaintiff.

Fernald, Taft, Falby & Little, P.A. , of Peterborough ( Silas Little on the

brief and orally), for the defendant s

.

HANTZ MARCONI , J. The plaintiff , Edward Favart, appeals an order of the Superior Court ( Ruoff , J.) ruling that land owned by the defendants , Steven and Kevin Ouellette, benefits from an implied easement over the plaintiff’s land along a fifteen

- foot wide access road to the “beach area” of Sip Pond depicted on a 1992 subdivision plan . The court further ruled that installation and use

of a dock is a reasonable use of the easement. We affirm in part

, reverse in
part

, and remand

.

The trial court found, or the record supports, the following facts. The properties relevant to this appeal are located along the shore of Sip Pond in Fitzwilliam, and were once part of a single par cel owned by Susanna and2

William Anderson. In 1947, the entire property was conveyed to the

Andersons’ four children. In 1961, the four siblings sub divided the property amongst themselves into four lots : Lot 1, the souther n most lot

, contained 5.2

acre s; Lot 2 , deeded to Lillian Bellis, contained 3.6 acres; Lot 3 , deeded to Henry Anderson, contained 3.4 acres; and Lot 4, the norther n most lot

, contained 3.3 acres. All four lots were rectangular in shape and had water frontage along the shore of Sip Pond , but only Lot 3 had a beach area along the

shore due to the littoral topography. When the property was sub divided , there

were approximately 10 cottage

- like structures scattered among the four lots, all

of which were accessed using a private access road that weaved amongst t he

lots. N one of the deeds to the se four lots expressly granted or reserved any rights

- of

- way

. The private access road is still used today, and t he trial court’s view of the property revealed plainly visible pathways that run th rough the parcels and “connect” the various structures.

In the 1960s and 70s, Lillian Bellis, who owned Lot 2

, executed a series of conveyances that effectively subdivided Lot 2 and created some parcels without any frontage on Sip Pond , including Lot 7, which is now owned by the

defendants

. Some of t he deeds to the se transactions included language granting or reserv ing rights

- of

- way

. In addition, a plan depicting the previously

m entioned access road as a right

- of

- way to Sip Pond was created in 1973. Finally, t he remaining Anderson heirs recorded another survey pla n in 1992 (1992 plan), which depicts the lots created as a result of the conveyances made by Lillian Bellis.

Lot 1 on the 1992 plan

— a part of what was originally Lot 2

— was conveyed to Henry Anderson and granted a right

- of

- way “beginning at the old Turnpike Road leading from Fitzwilliam to Winchendon to the shore of Sip

Pond.” Lots 2, 4, and 5, as depicted on the 1992 plan, were also conveyed t o Henry Anderson, but no rights

- of

- way were granted or reserved in those

conveyances. Lot 3 on the 1992 plan

, conveyed to Robert Anderson

, was granted “[a] right of way fifteen feet wide on the land of Lillian Bellis and boarding [ sic ] the land of Henry Anderson to the shore of Sip Pon d,” and “[a] right of way on the Westerly side of the old turnpike road leading from

Fitzwilliam to Winchendon across the land of Lillian B ellis to [Lot 3] .” Each of these conveyances occurred between August 1964 and April 1965.

In 1975, Lot s 6 and 7 as depicted on the 1992 plan were conveyed in a single transaction from Lillian Jean 1 to Frank and Joan Mich a elson . Joa n is

the mother of the defendants ; Frank is their stepfather and also the nephew of Lillian Bellis and Henry Anderson. The deed to L ot 6 grants “a right of way fifteen (15) feet wide to the grantees

. . . along the ‘right of way to Sip Pond’

from the Old Winchendon Turnpike and across [Lot 7] herein conveyed and

1 Lillian Bellis had married by this time and went by Lillian Jean.3

also across land of Henry Anderson 2 and others as presently used by the

re sidents of the area.” Lot 7 was conveyed “ [ s ] ubject to a right of way in favor of the grantees and others across part of [Lot 7] from Old Winchendon Turnpike to other lands on Sip Pond as said right of way is presently used.”

The Mich a elson s conveyed Lot 6 to the plaintiff in 2004 , who had

acq uired Lot 8 ( originally Lot 3 in the 1961 subdivision ) earlier in the same

year. The deed conveying Lot 8 to the plaintiff describes the fee conveyed by reference to “8” on the 1992 plan, and states tha t “[t]he premises are subject to all conditions, easements, matters and state of facts” shown on the 1992 plan and a plan recorded in April 1961. In the deed conveying Lot 6 to the plaintiff

, the Mich a elson s reserve d a fifteen

- foot wide right

- of

- way “ alon g the ‘ right of way to Sip Pond’ from the Old Winchendon Turnpike and across other land of grantors, across the within granted premises, and also across land of Henry Anderson and others as presently used by residents of the area .” The plaintiff subsequen tly acquired Lots 1

- 5 as depicted on the 1992 plan. Thus, the plaintiff had acquired Lot 8 and all of the subdivided parcels comprising w hat was originally Lot 2 , except for Lot 7.

In 2007, the Mich a elson s conveyed Lot 7 to Steven Ouellette , one of the

defendants . The deed to that conveyance states that it is “[s]ubject to a right of way in favor of the Grantors (Michaelson) and others across part of the [conveyed] premises

. . . from Old Winchendon Turnpike to other lands on Sip

Pond as sa id right of way is presently used.” Steven subsequently conveyed Lot

7 to himself and his brother Kevin , the other defendant

, and the deed to that

conveyance described the same right

- of

- way using the same language as the deed transferring the property fro m the Michaelsons to Steven.

In February 2017, the plaintiff filed this lawsuit requesting the court to

order the removal of a dock that the defendants had installed on the plaintiff’s
property , and enjoin the defendants from interfering in any manner with the plaintiff’s use of his property. In response, the defendants argued that their right of easement over the plaintiff’s land gives them the right to access the water of Sip Pond at the beach area and lay a dock there

. Based upon

evidence presented at trial regarding , among other things, the historical use of the properties

, as well as a view of the properties, the trial court found that the parties to the 1961 subdivision intended to create an easement to access the

beach area

. The court also found that, given t he rural location of the lots, the easement was reasonably necessary for the defendants’ enjoyment of their lot

. Thus, the trial court concluded that the defendants’ land benefits from , and the plaintiff’s land is burdened by, an easement by implication. The trial court

further concluded that installation and use of a dock is a reasonable use of the easement, and because there was no evidence that the easement had been

2 At the time of this transaction, Henry Anderson owned what was originally Lot 3 in the 1961 subdivision (Lot 8 on the 1992 plan), and also Lots 1, 2, 4, and 5 as depicted on the 1992 plan.4

expressly rescinded, it endured as a vested right of the current owners under

RSA 477:26 (2013)

. This appeal followed.

An easement is a nonpossessory interest in real property that can be created by written conveyance, prescription, or implication. Soukup v. Brooks

, 159 N.H. 9, 13 (2009)

. An easement by implication is presumed to exist if

, during unity of title

, the owner imposes an apparently permanent and obvious servitude on one tenement in favor of another, which at the time of severance of title is in use and is reasonably necessary for the fair enjoyment of the

tenement to which such use is beneficial. Choquette v. Roy , 167 N.H. 507, 513 (2015) . However, because this doctrine is based on the theory of an implied grant, the circumstances surrounding the conveyance control. Id . The question is whether the parties could reasonably have thought that the right was not granted. Id . at 513

- 14. The law is well s ettled that an easement by implication will not be found merely because it would be convenient to have the
grant. Id . at 514. An easement by implication arises only because the parties so agreed. Id . The issue of whether there was an implied easement is a question of fact for the trial court, and we will not disturb its finding if a reasonable person could have reached t he same conclusion based on the evidence presented. Id

. Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence. Jesurum v. WBTSCC Ltd. P’ship , 169 N.H. 469, 476 (2016). We review the trial court’s application of law to the facts de novo

. Id

.

F or an implied easement burdening Lot 8 in favor of Lot 7 to exist, it

must have been created when the lots were first subdiv ided in 1961

, because that is when unity of title existed between the parcels that ultimately became

Lots 7 and 8. See Choquette , 167 N

. H. at 513. At trial , the court heard testimony from the defendants and their mother concerning the historical use

of the properties, which it credited

. Each of them testified to going to Sip Pond beginning in the early 1960s, using the beach area with their family , and engaging in activities at the beach area such as swimming, boating, fishing, snowmobiling, and star ga zin g

. Some of those memories dated back to 1961,

and there was also testimony that the sibling

- parties to the 1961 sub division got along well and all used the beach area. In addition, the court received photographic ev idence supporting the use of the beach area as testified to by

the defendants and their mother.

The plaintiff argues that at least some testimony of the defendants and their mother relates to activity that took place after the 1961 severance, and

therefore s hould not be consid ered in our analysis

. We disagree. The severing parties’ reasonable expectation to continue such acquired uses of land is a consideration protected by the doctrine of im plied easements

. See Restatement (Third) of Property : Servitudes § 2.12, cmt

. a, at 160 (2000 ) (noting that implied easements are “not based solely on the presumed actual intent of the parties,”5

and that the doctrine “furthers the policy of protecting reasonable expectations, as well as actual intent, of parties to lan d transactions”); Choquette , 167 N.H.

at 513

- 14 (“The question is whether the parties could reasonably have though t that the [easement] was not granted.” (quotation omitted)). Subsequent use of

the land by the severing parties may reflect the reasonable e xpectations as to how the land would be used following severance. Thus, it does not follow that

such evidence is irrelevant to the analysis of an implied easement in all cases

.

The court’s finding of an implied easement was further supported by the

fact that several camps, all of which were used by family members, were scattered throughout the lots and connected by foot or small vehicle paths when the property was first sub divided in 1961

. 3 Those connecting pathways are still plainly visible, and, b ased upon a view of the property, the court stated that “[c]learly , this is a case in which a family lakefront camp was passed down from parents to siblings with the intent of continued common usage of the property.” Therefore, the court found that “the l anguage [in the deeds] referring to ‘roads’ as ‘presently used’ must refer to the pre

- existing practice of the family using the pathways to access the ca bins and the waterfront on lot [8] .” See generally Arcidi v. Town of Rye , 150 N.H. 694, 702 (2004) (“We will not overturn the factual findings of the trial court, particularly when aided by a view of the property in question, when the y are supported by the evidence

. ”) ; Spaulding v. Clark , 104 N.H. 30, 32 (1962) (interpreting deed language granting a rig ht of way “when needful” as granting an easement to reach the

shore of Sand Pond where there was evidence that it was the defendants’ only means of reaching the pond).

Additionally, the trial court found that the location of the initial lots along Sip Pond makes the easement reasonably necessary to the enjoyment of

Lot 7 . We agree. T he trial court acknowledged that the lots were in a rural, undeveloped area, and that engaging in recreational activities on Sip Pond was the “ reason [ ] these lots were cre ated and used

. ” Moreover, Lot 8 on the 1992 plan is the only lot that has easy access to Sip Pond for the recreational activities described at trial, which was readily apparent to the trial court based

upon the topography of the land. 4 Thus, an easement to access the beach was reasonably necessary for the enjoyment of the original Lot 2

. Accordingly

, the severing parties had reasonable grounds to expect that the right to continue

such use to access the beach area was included in the conveyance. See Restatement (Third) of Property : Servitudes § 2.12 , at 159

- 60

.

3 The trial court found that such a “path” was the only means of accessing the cottage

- like structures on Lot 4 when the property was originally subdivided in 1961.

4 Given this fact, the plaintiff’s argument that the lots created in 1961 were of similar size and all contained water frontage, or that other lots withou t a beach area maintained a dock, do not detract from the evidence supporting a finding of reasonable necessity.6

The heart of the plaintiff’s argument is that there is no evidence establishing the intent of the parties to the 1961 subdivision to create an

easement during unity of title. Relying chiefly upon Burke v. Pierro , 159 N.H.

504 (2009), t he plaintiff a rgues that “the record is devoid of evidence showing” prior use of the beach area or an intent of the severing parties to create an

easement in 1961. In Pierro , we observed that the trial court necessarily rejected the existence of an implied easement based upon prior use by making

no specific findings on the issue. Pierro , 159 N.H. at 510. W e upheld the trial

court’s implicit ruling as reasonable becaus e “the reco rd [was] devoid of any

evidence demonstrating that the property . . . included [the easement] prior to

severance . . . .” Id

. Here, b y contrast, the trial court made specific finding s after it heard testimony relating to the historic use of th e properties

, received photographic evidence in support of that testimony, heard evidence of interconnected cottages scattered throughout the lots, and took a view of the
property

. Thus, w e cannot agree with the plaintiff that the record is devoid of

evidence to support the trial court’s finding.

We are equally unpersuaded by the plaintiff’s co mparison of this case to

Blaisdell v Raab , 132 N.H. 711 (1990)

. Unlike the case now before us, Blaisdell included a record that made it manifestly obvious that a revocable license was granted to the plaintiffs , which, in turn, made reasonable the trial court’s ruling that no implied easement existed. See Blaisdell , 132 N.H. at 717 ( concluding that the plaintiffs had nothing more than a revocable license to use the defendants’ driveway in light of evidence introduced at trial including
agreements titled “License to Use Driveway” and “License to Use Driveway

Revoked

, ” and testimony that the license agreement w as presented to the plaintiff at time of severance ). In short, n one of the cases relied upon by the plaintiff demonstrate s that the trial court committed legal error

.

Next, the plaintiff argues that it is “of great significance” that none of the deeds conveying property that was originally part of Lot 2 after the 1961

subdivision makes any reference to an easement over the beach area

. Presumably, the plaintiff contends, if Lillian Bellis believed she had rights to an implied easement, she would have made reference to them in a subsequent

conveyance. Arguably, she did. The deeds to conveyances subsequent to the

1961 severance do not unambiguously identify an easement permitting access

to the beach area; however, the deeds t o Lots 1, 6, and 7 do grant rights that

can support the assertion that Lillian Bellis believed she had a right

- of

- way to

the shore of the Pond in addition to the access provided to the lots. For example, the deed to Lot 1 includes language granting “a right of way beginning at the old Turnpike Road . . . to the shore of Sip Pond”; the deed to Lot 6 includes “a right of way fifteen (15) feet wide . . . along the ‘right of way to Sip

Pond’ . .

. across the land of Henry Anderson and others as presently used by the residents of the area”; and the deed to Lot 7 includes a “right of way . . . to other lands on Sip Pond as said right of way is presently used.” Ultimately, the7

extent to which these deeds provide evidence of the parties’ intent at severance
was a determination for the trial court

. S ee Jesurum , 169 N.H. at 476.

T he plaintiff also argues that

, even if there is evidence to establish prior use of the beach area, it does not support finding an implied easement because any such use was permissive. This argument is misplaced, however, because adversity is not a requirement for findi ng an easement by implication. Choquette , 167 N.H. at 514

. Lastly , the plaintiff argues that an easeme nt by implication did not arise because “there was no agreement by the siblings” to create such an easement. However, this argument assumes the truth of its

conclusion , as “[a]n easement by implication arises [from evidence that] the parties so agreed.” Blaisdell , 132 N.H. at 717.

Since the doctrine of implied easements rests upon the theory of an implied grant, the circumstances surrounding the transaction are controlling and must be such as to raise a reasonable implication that the right was grante d. Elliot v. Ferguson , 104 N.H. 2 5, 28 (1962)

. In this case

, we conclude that the trial court’s findings are supported by the record, and that those findings are sufficient to establish that a reasonable person could have concluded that, at the time of t he 1961 subdivision, the easement over the

beach area was “permanent and obvious” and “reasonably necessary for the fair enjoyment of the ” lots

. Choquette , 167 N.H. at 514 (quotation omitted)

. Accordingly, we affirm the trial court’s finding of an easement by implication

over the plaintiff’s land along the fifteen

- foot access road on that land, depicted in the 1992 plan, which terminates at , and also includes

, the beach area depicted on that plan.

We now turn to the plaintiff’s argument that the t rial court erred by ruling that the easement is a vested right of the defendants as owners of Lot 7
pursuant to RSA 477:26. Under RSA 477:26, easements automatically pass with the transfer of property to which they are appurtenant, even when absent

from t he face of the deed. See RSA 477:26; Mansur v. Muskopf , 159 N.H. 216, 222 (2009). The plaintiff contends that the trial court erred in ruling that the easement is a vested right of the defendants under RSA 477:26 because “nothing in the recorded document s in the Cheshire County Registry of Deeds

establishes the easement by implication.” The plaintiff appears to argue that, for RSA 477:26 to apply, there must be a “document evidencing the easement.” In so arguing, the plaintiff misconstrues RSA 477:26, which plainly states that

“ all . . . easements . . . belonging to the granted estate or interest shall be deemed to be included in the conveyance,” unless the deed specifically states otherwise. RSA 477:26 (emphasis added). Thus , implied easements are subject to RSA 477:26. Therefore

, having affirmed the trial court’s finding of

a n implied easement, we also affirm the trial court’s ruling that the easement, once established, transferred with the land

.8

Finally, we address whe ther the trial court erred by ruling that the

installation and use of a dock is a reasonable u se of the implied easement over the beach area on Lot 8. The trial court’s ruling relied upon “the evidence of the existence and use of prior docks in the area.” The plaintiff argues that the trial court erred in its ruling because there is n o evidence that a dock had ever

been installed on the beach area of Lot 8 . We agree with the plaintiff

.

The scope of an easement is dependent upon the nature of the

easement ’ s creation. See San d ford v. Town of Wolfeboro , 152 N.H. 1, 4 (2005) (“The scope of a prescriptive easement is defined by the character and nature of

the use that created it

. ”) . T raditionally, the scope of easements implied from prior use has bee n limited to the circumstances of the use giving rise to the

easement. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and

Licenses in Land § 8:8

, at 539 (2019); Connolly v. Maine Cent. R. Co. , 30 A.3d 830, 833

- 34 ( Me. 2011) ( up holding trial court’s ruling that implied easement

was limited to historic use as farm crossing); Read v. Webster , 113 A. 814, 817

- 18 (Vt. 1921) ( holding that implied easement to maintain a dam was limited to

the height of the dam at time of severance). The modern tren d tends to permit any further usage of the easement that the parties might have reasonably contemplated. See Bruce & Ely, supra § 8:8 , at 539

- 40 ; Capstar Radio Operating Co. v. Lawrence , 375 P.3d 282, 294 (Idaho 2016) (stating that “the scope of the impli ed easement by prior use is for unlimited reasonable use ” )

.

We need not decide which approach to ad opt , however, because under either approach the evidence does not support the trial court’s finding

. At trial, there was testimony that there were two docks in the water on Lot 11 on the 1992 plan (Lot 4 in the 1961 subdivision ). The plaintiff also testified that there

was a dock on Lot 6 (part of Lot 2 in the 1961 subdivision ) when he purchased

it from the Michaelsons

. However, both def endants , and their mother, testified

that there was never a dock on the beach area of Lot 8 until one of the

defendants installed one in 2016. Therefore , installation and use of a dock is not within the scope of the easement under the traditional approach because there is no history of prior use of a do ck on the beach area of Lot 8.

Similarly, under the modern approach, the evidence of docks being used

on lots other than Lot 8 , without more, is not sufficient to establish that the severing parties reasonably expected that each lot that had been granted the right to use the beach area on Lot 8 was also granted the right to install and

use a dock there. Indeed, the fact that the owners of original Lot 2 and Lot 4 historically maintained their own docks, coupled with the fact that no dock had

ever existed on Lot 8 prior to this dispute, would be reasonably understood to

indicate that the severing parties did not contemplate installation and use of a dock as a permissible use of the beach area easement. In sum

, although the

existence and prior use of other docks in the area may be a relevant consideration in determining the scope of the easement under the modern approach

, it is insufficient b y itself to support the trial court’s finding

. The9

defendants point to no additional e vidence to support the trial court’s finding

on this issue

. Therefore, we conclude that , on this record

, the defendants’

installation and use of a dock on the beach area was not within the scope of the implied easement

.

For the reasons expressed, we affirm the trial court’s finding of an easement by implication over the access way and the beach area o n the plaintiff’s land ; we affirm the trial court’s ruling that the easement passed with the property under RSA 477:26; and we reverse the trial court’s ruling that

installation and use of a dock was within the scope of the implied easement

and reman d

.

Affirmed in part; reversed in
part ; and remanded

.

HICKS, BASSETT

, and DONOVAN , JJ., concurred.