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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 defendants.

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 parcel owned by Susanna and 
2

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

Andersons’ four children. In 1961, the four siblings subdivided the property

amongst themselves into four lots: Lot 1, the southernmost lot, contained 5.2 

acres; Lot 2, deeded to Lillian Bellis, contained 3.6 acres; Lot 3, deeded to 

Henry Anderson, contained 3.4 acres; and Lot 4, the northernmost 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 subdivided, 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 the 

lots. None of the deeds to these four lots expressly granted or reserved any 

rights-of-way. The private access road is still used today, and the trial court’s

view of the property revealed plainly visible pathways that run through 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 the deeds to these transactions included language

granting or reserving rights-of-way. In addition, a plan depicting the previously 

mentioned access road as a right-of-way to Sip Pond was created in 1973. 

Finally, the remaining Anderson heirs recorded another survey plan 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 to 

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 Pond,” and “[a] 

right of way on the Westerly side of the old turnpike road leading from 

Fitzwilliam to Winchendon across the land of Lillian Bellis to [Lot 3].” Each of 

these conveyances occurred between August 1964 and April 1965.

In 1975, Lots 6 and 7 as depicted on the 1992 plan were conveyed in a

single transaction from Lillian Jean1 to Frank and Joan Michaelson. Joan is 

the mother of the defendants; Frank is their stepfather and also the nephew of 

Lillian Bellis and Henry Anderson. The deed to Lot 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 Anderson2 and others as presently used by the 

residents 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 Michaelsons conveyed Lot 6 to the plaintiff in 2004, who had 

acquired 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 that “[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 Michaelsons reserved a fifteen-foot wide right-of-way “along 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

subsequently acquired Lots 1-5 as depicted on the 1992 plan. Thus, the 

plaintiff had acquired Lot 8 and all of the subdivided parcels comprising what 

was originally Lot 2, except for Lot 7.

 

In 2007, the Michaelsons 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 said 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 from 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 the 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 settled 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 the 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. 

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

must have been created when the lots were first subdivided 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 gazing. Some of those memories dated back to 1961, 

and there was also testimony that the sibling-parties to the 1961 subdivision 

got along well and all used the beach area. In addition, the court received 

photographic evidence 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 should not be considered 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 implied 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 land transactions”); Choquette, 167 N.H. 

at 513-14 (“The question is whether the parties could reasonably have thought

that the [easement] was not granted.” (quotation omitted)). Subsequent use of 

the land by the severing parties may reflect the reasonable expectations 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 subdivided in 1961.

3 Those connecting pathways 

are still plainly visible, and, based 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 language [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 cabins 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 they are supported by the evidence.”); 

Spaulding v. Clark, 104 N.H. 30, 32 (1962) (interpreting deed language 

granting a right 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. The 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 created 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 without 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), the plaintiff argues 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. We upheld the trial 

court’s implicit ruling as reasonable because “the record [was] devoid of any 

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

severance . . . .” Id. Here, by contrast, the trial court made specific findings

after it heard testimony relating to the historic use of the 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, we 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 comparison 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 was presented to the 

plaintiff at time of severance). In short, none of the cases relied upon by the 

plaintiff demonstrates 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 to 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, the
7

extent to which these deeds provide evidence of the parties’ intent at severance 

was a determination for the trial court. See Jesurum, 169 N.H. at 476. 

The 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 finding an easement by implication. 

Choquette, 167 N.H. at 514. Lastly, the plaintiff argues that an easement 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

granted. Elliot v. Ferguson, 104 N.H. 25, 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 the 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 trial 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 the 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 documents 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 

an implied easement, we also affirm the trial court’s ruling that the easement, 

once established, transferred with the land.
8

Finally, we address whether the trial court erred by ruling that the 

installation and use of a dock is a reasonable use 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 no 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 Sandford 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.”). Traditionally, the scope of easements implied from 

prior use has been 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) (upholding 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 trend 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 implied easement by prior use is for unlimited reasonable use”).

We need not decide which approach to adopt, 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 defendants, 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 dock 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 by itself to support the trial court’s finding. The 
9

defendants point to no additional evidence 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 on 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 remand.

 

Affirmed in part; reversed in 

part; and remanded.

 

 HICKS, BASSETT, and DONOVAN, JJ., concurred.