UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

The Hill of Portsmouth

Condominium Association,

Plaintiff

v. Civil No. 04-cv-403-SM

Opinion No. 2006 DNH 064

Parade Office, LLC,

Parade Hotel, LLC, and

Parade Residential, LLC,

Defendants

O R D E R

The Hill of Portsmouth Condominium Association (the

“Association”) brings this action seeking a judicial declaration

that its members hold an enforceable easement for parking and

other purposes on property owned by defendants, Parade Office,

LLC, Parade Hotel, LLC, and Parade Residential, LLC

(collectively, “Parade Office”). Parade Office objects, claiming

the easement was extinguished when the prior owner of the

dominant tenement conveyed that property to the Association’s

members, without the benefit of the parking easement. 

Alternatively, Parade Office says the very terms of the easement

allow it (the owner of the servient tenement) to use the land

encumbered by the parking easement to the exclusion of the

dominant tenement (i.e., the Association). The parties have

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filed opposing motions for summary judgment, each claiming

entitlement to judgment as a matter of law. 

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists and Aerospace Workers v. Winship Green Nursing Ctr.,

103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Background

The Association and Parade Office own adjacent parcels of

land in Portsmouth, New Hampshire. Prior to the events giving

rise to this litigation, Barnett Mortgage Trust owned both

properties as a single parcel. In 1997, Barnett subdivided the

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1 After this litigation was filed, Parade Office conveyed

portions of the Parade Mall property to Parade Hotel and Parade

Residential. Consequently, three entities now own portions of the

Parade Mall property. 

3

property and submitted what is now the Hill of Portsmouth

Condominium to the provisions of New Hampshire’s Condominium Act,

N.H. Rev. Stat. Ann. (“RSA”) ch. 356-B, by recording in the

registry of deeds a declaration of condominium. Subsequently,

Barnett created a parking easement on the adjacent parcel for the

benefit of the condominium property. The “Declaration of

Easement” recorded in the registry of deeds describes the

condominium property as the dominant tenement (i.e., the property

benefitted by the easement) and the adjacent property as the

servient tenement (i.e., the property burdened by the easement). 

Subsequently, Parade Office purchased the servient tenement,

which is now known as the Parade Mall property. There is no

dispute that Parade Office took title to that parcel of land

subject to the condominium property’s parking easement.1 

In 2000, Makrie LLC acquired the condominium property by

warranty deed, which specifically identified and included the

parking easement. The deed to Makrie also provided that the

property was subject to the previously recorded declaration of

condominium (each of Makrie’s predecessors in title also took the

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property with the benefit of the easement, and subject to the

declaration of condominium). 

By early 2001, no units had been sold at The Hill of

Portsmouth Condominium. At that time, Makrie, as the sole title

holder of the property, amended the condominium declaration by

recording a “Restated and Amended Condominium Declaration.” 

Although the metes and bounds description of the property

submitted to the amended declaration of condominium is identical

to that describing the parcel submitted to the original

declaration of condominium, the amended declaration does not make

any reference to the parking easement. Instead, it describes the

property as being “a portion” of the property to which Makrie

originally took title - presumably, an oblique reference to the

missing description of the parking easement. 

Makrie also amended the condominium documents to include, as

a common expense to be borne by all unit owners, “parking lease

payments” - payments to be made by unit owners to Makrie for the

privilege of using the parking area covered by the easement. 

Finally, Makrie recorded a revised site plan which included a

revision note that stated: “remove parking easement & note

parking encroachment per attorney request.” 

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It is apparent that Makrie purposefully omitted any

reference to the parking easement from the conveyance of land

into the condominium. Perhaps Makrie thought (erroneously) that

by simply amending the declaration of condominium and omitting

any references to the easement, it could sever the easement from

the dominant estate and retain independent “title” to the

easement, despite the fact that it no longer held title to the

dominant estate. And, it appears that, at least for awhile, the

Association did not question Makrie’s free-standing “ownership”

of the easement or its right to charge condominium unit owners a

fee for parking on land owned not by Makrie, but by Parade

Office. 

Eventually, Parade Office filed a petition for declaratory

judgment in state court, asserting that the parking easement was

extinguished when Makrie purposefully excluded any reference to

it from the restated and amended declaration of condominium. 

Parade Office sought a judicial declaration that Makrie had no

legal or equitable interest in Parade’s property. Neither the

Association nor any of its members were party to that proceeding. 

The state trial court agreed with Parade Office, concluding

that:

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When [Makrie] resubmitted the property to condominium,

. . . it purposely excluded the parking easement from

the Hill property. . . . Thus, [Makrie] severed the

easement from the dominant tenement and attempted to

retain the easement for itself. 

However, an easement appurtenant cannot exist separate

from the dominant tenement. [Makrie] no longer owns

the Hill property, having sold all of the condominium

units. Therefore, the court finds respondent

extinguished the parking easement when it excluded it

from the Amended Condominium Declaration and

subsequently sold all of the condominium units. 

Parade Offices, LLC v. Makrie, LLC, 03-E-0449, slip op. at 2-3

(N.H. Super. Ct. Feb. 23, 2004) (emphasis supplied). Makrie

appealed the Superior Court’s decision to the New Hampshire

Supreme Court. 

In connection with that appeal, the Association sought (and

was granted) permission to file an amicus brief. In its brief,

the Association asserted that it did “not seek a resolution of

its members’ claim to the parking easement.” Rather, said the

Association, the purpose of its brief was “to protect against any

such resolution by demonstrating that certain ‘extinguishment’

language in the Superior Court’s decision was unnecessary dicta

and, further, that the Superior Court could not properly have

resolved the claimed interest of non-parties (the Association’s

members).” In other words, the Association asserted that the

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state trial court went too far in concluding that Makrie

“extinguished” the parking easement (thereby prejudicing the

Association’s claim to the benefits of that easement). Instead,

said the Association, the trial court should have limited its

ruling with respect to Parade Office, holding only that Makrie

had no enforceable interest in that portion of Parade Office’s

property subject to the parking easement. 

The New Hampshire Supreme Court agreed. In affirming the

lower court’s decision, the Supreme Court noted that “a dominant

tenement’s interest in an easement cannot be severed from the

land by transferring the land while attempting to retain the

easement.” Parade Offices, LLC v. Makrie, LLC, No. 2004-0332

(N.H. Sup. Ct. March 15, 2005). Importantly, however, the court

specifically avoided resolving the issue presented in this case:

whether the parking easement was extinguished when Makrie omitted

any reference to it from the restated condominium declaration. 

Id. (“We need not decide whether the parking easement was

extinguished. Indeed, as noted in its amicus brief, the current

unit owners’ association, which is not a party to this case,

claims an interest in the parking easement.”). 

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As amended, the “Declaration of Easement” at issue in this

case actually created two easements - an access easement and a

parking easement - each benefitting what is now the Association’s

property and each burdening what is now Parade Office’s property: 

NOW THEREFORE, the said Barnett Mortgage Trust

does hereby create a perpetual easement over, upon, and

through, said servient tenement for the following uses

and purposes: 

To provide a means of ingress and egress by foot

and vehicle traffic on and over the said servient

tenement to and from the dominant tenement in favor of

the owners of the dominant tenement, their heirs and

assigns forever. . . . . . 

FURTHER, the said Barnett Mortgage Trust does

hereby create an easement in favor of the owners of the

dominant tenement, their heirs and assigns forever, for

the purpose of parking in or on an area located in the

southeasterly portion of the servient tenement bounded

and described as follows . . . .

As consideration for this easement, the owner of

the above named dominant tenement does hereby agree for

itself, its heirs and assigns forever (during the

existence of this easement), to make annual payments to

the owner of the servient tenement for its (dominant

tenement’s) proportionate share of the cost [of

maintaining the parking area]. It is further expressly

understood that this easement is an easement in common

with the owner of the servient tenement, its heirs and

assigns forever, and that the owner of the dominant

tenement, its heirs and assigns, shall have no right to

interfere with the owner of the servient tenement’s use

of this parking area but shall have the option to

terminate this parking easement unilaterally at any

time. 

Exhibit A-2 to defendant’s motion for summary judgment. 

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Discussion

When Makrie submitted the Association’s property to the

restated declaration of condominium, it is clear that: 

1. Makrie intended that the Association’s

property no longer retain the benefit of the

parking easement - that is, Makrie

purposefully omitted any reference to the

easement when it submitted the property to

the restated declaration of condominium in an

effort to sever the easement from the

dominant estate; and

2. Makrie did not intend to extinguish the

easement; instead, it sought to preserve the

existence of the easement and retain

independent “title” to it (the latter effort

- to retain ownership of the easement - now

having been declared unsuccessful by the New

Hampshire Supreme Court). 

In this case, the parties seize upon those two conflicting

intentions/efforts: Parade Office, naturally, focuses on the

former and asserts that, consistent with Makrie’s efforts, the

easement was successfully severed from the dominant estate, did

not pass to the Association’s members when Makrie recorded the

restated condominium declaration without any reference to the

easement, and, so, was extinguished. The Association, on the

other hand, focuses on the latter of Makrie’s efforts, saying

Makrie never intended (nor did it take the necessary and proper

steps) to either terminate the easement (under its terms) or

Case 1:04-cv-00403-SM Document 43 Filed 06/12/06 Page 9 of 21
2 For a discussion of the distinction between an

“appurtenant easement” and an “easement in gross,” see Arcidi v.

Town of Rye, 150 N.H. 694, 698 (2004). For a discussion of the

distinction between an “easement” and a “license,” see Waterville

10

extinguish the easement as a matter of law. And, says the

Association, because Makrie plainly could not retain independent

“title” to the easement, its efforts to sever the easement from

the dominant estate were ineffectual and the easement simply

passed along with the dominant estate into the restated

condominium. 

I. The Parking Easement was not Extinguished.

The parties to this diversity action agree that New

Hampshire’s property law governs the resolution of their dispute. 

The principal legal question presented is this: whether, when a

dominant estate (one benefitted by an easement) is conveyed

without any reference to that easement, the easement is

implicitly extinguished or whether the easement still passes, by

operation of law, through the chain of title to the new property

owner. 

In the related state court proceeding between Makrie and

Parade Office, the New Hampshire Supreme Court noted that the

parking easement at issue here is an appurtenant easement.2 As

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Estates Ass’n v. Town of Campton, 122 N.H. 506, 508-09 (1982). 

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such, it is incapable of existence apart from the dominant

estate. See Arcidi v. Town of Rye, 150 N.H. 694, 699 (2004). In

other words, the owner of the dominant estate cannot transfer

just the easement to a third party, see Cricklewood on the

Bellamy Condo. Ass’n v. Cricklewood on the Bellamy Trust, 147

N.H. 733, 737 (2002), nor can the owner transfer the dominant

estate itself while trying (as did Makrie) to retain independent

title to or ownership of the easement, see Parade Offices, LLC v.

Makrie, LLC, No. 2004-0332 (N.H. Sup. Ct. March 15, 2005). 

It is equally well-settled that when a dominant estate is

conveyed without any reference to the easements benefitting that

estate, those easements are necessarily transferred along with

the dominant estate by operation of law. New Hampshire statutory

provisions make this clear: 

Easements, Appurtenances, etc. In a conveyance of real

estate or any interest therein, all rights, easements,

privileges and appurtenances belonging to the granted

estate or interest shall be deemed to be included in

the conveyance, unless the contrary shall be stated in

the deed, and it shall be unnecessary in order for

their inclusion to enumerate or mention them either

generally or specifically. 

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RSA 477:26 (emphasis suppled). That statute is entirely

consistent with New Hampshire common law, which has long provided

that “when an easement has become appurtenant to a dominant

estate, a conveyance of that estate carries with it the easement

belonging to it, whether mentioned in the deed or not .” 

Spaulding v. Abbot, 55 N.H. 423, 424-25 (1875). See also Downing

House Realty v. Hampe, 127 N.H. 92, 95 (1985) (noting that the

courts will find that an easement has been abandoned only if the

holder of the easement undertakes “clear, unequivocal and

decisive acts” to evidence that intent). See generally

Restatement (Third) Property Servitudes (2000) § 5.6 (“[A]n

appurtenant benefit may not be severed and transferred separately

from all or part of the benefited property. An attempted

severance that is not effective to transfer the benefit does not

extinguish the benefit unless manifestly intended to do so.”). 

In other words, New Hampshire’s law, like the Restatement,

disfavors the implicit extinguishment or abandonment of easements

and its courts will not infer that an easement has been either

extinguished or abandoned absent express and unmistakable conduct

aimed at achieving that goal. 

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In this case, when Makrie subjected the dominant estate to

the restated and amended declaration of condominium, none of the

relevant instruments made reference to the parking easement. 

Necessarily, then, none of those instruments expressly stated any

intention on the part of Makrie to extinguish the easement. In

fact, as Parade Office concedes, Makrie specifically intended

that the easement continue. Consequently, the easement was, as a

matter of law, included in the chain of title when the

Association’s property was submitted to the restated declaration

of condominium, notwithstanding Makrie’s erroneous belief that it

could retain freestanding “title” to it by not specifically

referring to it in the restated declaration of condominium. See

RSA 477:26 (requiring the deed to expressly state an intention to

extinguish any appurtenant easements if that is the grantor’s

intent). That is to say, Makrie’s ineffective efforts to retain

control over the easement did not serve to extinguish the

easement. Instead, the easement simply passed (albeit silently

and by operation of law) to the members of the Association, as

owners in common of the dominant estate. 

II. Parade Office’s Use of the Servient Estate. 

Even if Makrie’s efforts to retain the benefit of the

easement for its own uses did not serve to extinguish the

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easement, Parade Office says it still retained the authority to

unilaterally extinguish the parking easement by dedicating the

area covered by the easement to a different use: 

The creator of the easement fashioned the dominant

tenement’s parking rights as being subject to the

servient tenement’s “use of the parking area.” Such

use has in fact occurred with the construction of the

hotel and condominium on the parking easement area. 

This use was contemplated by the creator of the

easement. The language is clear and unambiguous. “The

owner of the dominant tenement shall have no right to

interfere with the owner of the servient tenement’s use

of this parking area.” 

. . . The drafter clearly intended the dominant

tenement to have parking in common with the servient

tenement until such time as the servient tenement had a

use for the parking area. 

Defendant’s motion for summary judgment (document no. 22-2) at

18. Applying that reasoning, Parade Office concludes that:

The circumstances surrounding the creation of the

easement lead to the conclusion that the creator of the

parking easement did not want to limit its later use of

the easement area to just parking. The parking

easement, if not earlier extinguished, was certainly

lawfully used by the servient tenant to construct a

hotel and residential condominium. This ended the

easement’s existence. 

Id. at 21 (emphasis supplied). The court disagrees. 

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The portion of the easement’s description that is central to

Parade Office’s argument provides:

It is further expressly understood that this easement

is an easement in common with the owner of the servient

tenement, its heirs and assigns forever, and that the

owner of the dominant tenement, its heirs and assigns,

shall have no right to interfere with the owner of the

servient tenements use of the parking area but shall

have the option to terminate this parking easement

unilaterally at any time. 

Exhibit A-2 to defendant’s motion for summary judgment (emphasis

supplied). 

Construing language employed to establish an easement

presents, generally speaking, a question of law for the court to

resolve. 

We will apply the general rules of contract

interpretation to the interpretation of the easement

agreement. As a general rule, the proper

interpretation of a contract is ultimately a question

of law for this court, and we will determine the

meaning of the contract based on the meaning that would

be attached to it by reasonable persons. When

interpreting a contract, absent fraud, duress, mutual

mistake, or ambiguity, the parties’ intent will be

determined from the plain meaning of the language used

in the contract.

Close v. Fisette, 146 N.H. 480, 484 (2001) (citations and

internal punctuation omitted). See also Lussier v. New England

Power Co., 133 N.H. 753, 756 (1990) (“The beginning and end of

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3 When the parking easement was amended in 1977, the

reference to the minimum annual payment of $1,000 was removed. 

16

our inquiry is found in the words of the easement deeds. Our

task is to determine the parties’ intent in light of the

surrounding circumstances at the time the easements were

granted.”) (citation omitted and emphasis supplied). 

Here, the language of the parking easement is plainly

inconsistent with Parade Office’s view that it could, in essence,

unilaterally terminate the easement by simply putting the

affected parcel to a use inconsistent with parking (by, for

example, erecting a structure there). First, the power to

unilaterally terminate the easement was granted to the dominant

tenement, not the servient. The reason for that is clear: as it

was originally drafted, the easement obligated the dominant

tenement to make annual payments to the owner of the servient

tenement for its proportionate share of the costs associated with

maintaining the parking area, but in no event was that amount to

be less than $1,000 each year. Consequently, if the owner of the

dominant tenement determined that it no longer needed to use the

parking easement, it would, absent the right to terminate the

easement, still be obligated to pay at least $1,000 each year to

the owner of the servient tenement.3 Plainly, the drafters of

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The ability of the dominant estate to unilaterally terminate the

easement was, however, retained. 

17

the easement anticipated the possibility that the dominant

tenement might eventually no longer need (or want to pay for) the

benefit of the parking easement and, therefore, crafted a means

by which it might terminate the easement and avoid making annual

payments for a benefit it no longer needed or enjoyed. 

Second, Parade Office reads too much into the language that

provides the owner of the dominant tenement “shall have no right

to interfere with the owner of the servient tenement’s use of

this parking area.” By referring to the easement as an “easement

in common with the owner of the servient tenement,” its drafters

contemplated that both the dominant tenement and servient

tenement would share rights to use the parking area for parking,

with neither unreasonably interfering with the other’s enjoyment

of it as such - that is, a parking area. The language does not

reasonably lend itself to Parade Office’s expansive view that, as

holder of the servient estate, it could put the land encumbered

by the parking easement to any inconsistent use it pleased and,

in so doing, wholly divest the holder of the dominant tenement of

the benefit of the easement. See Waterville Estates, 122 N.H. at

509 (“Although it may be released or abandoned by the owner of

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the dominant estate, the easement appurtenant is not terminable

at the will of the owner of the servient estate.”) (citations

omitted).

As the owner of the servient estate, Parade Office does not

have the right or authority to put the affected property to a use

that is inconsistent with the Association’s parking rights. See,

e.g., Dumont v. Town of Wolfeboro, 137 N.H. 1, 6 (1993) (“The

owner of a servient estate has the privilege to use the land

affected by an easement to the extent that his or her use does

not impair the dominant tenant’s right of way.”) Bean v.

Coleman, 44 N.H. 539, 544 (1863) (“[T]here remains with the

[servient estate holder] the right of full dominion and use of

the land, except so far as a limitation of his right is essential

to the fair enjoyment of the right of way which he has

granted.”); Bartlett v. Peaslee, 20 N.H. 547, 549 (1847) (“[T]he

grant of a water-course implies a covenant by the grantor not to

disturb the grantee in the enjoyment of it.”). 

Notwithstanding Parade Office’s arguments to the contrary,

the specific language of the easement does not vest the owner of

the servient tenement with any greater rights (or obligations)

than those provided by New Hampshire common law. Had the

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drafters of the easement intended to vest the owner of the

servient estate with the powers envisioned by Parade Office, they

would have written the easement as something more akin to a

license and given both parties the right to terminate it at will,

rather than granting that authority exclusively to the holder of

the dominant estate.

Accordingly, the court concludes that Parade Office, as

holder of the servient estate, cannot put the encumbered land to

any use that is inconsistent with the Association’s parking

rights (absent, of course, the Association’s consent). Instead,

as contemplated by the language of the easement itself, both

Parade Office and the Association have the right to use the

encumbered land as a parking area, with neither unreasonably

interfering with the other’s use of that area for parking. See

generally Sakansky v. Wein, 86 N.H. 337, 339-40 (discussing the

“rule of reason” as applied to easements and noting that the

“rule merely refuses to give unreasonable rights, or to impose

unreasonable burdens, when the parties, either actually or by

legal implication, have spoken generally.”); Dumont, 137 N.H. at

7 (observing that “Sakansky concerned a useful easement, whose

use the owners of the servient estate threatened to impair; the

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ruling preserved the dominant tenant’s right to continue using an

express easement for a reasonable purpose.”). 

Conclusion

For the foregoing reasons, the court concludes that the

parking easement at issue in this case was not extinguished by

Makrie’s futile effort to sever it from the dominant tenement and

retain independent title to it. Instead, the rights conferred by

the easement passed by operation of law to the Association’s

members, as tenants in common of the dominant tenement. 

Moreover, the court rejects Parade Office’s contention that it

possesses unilateral authority to terminate the easement by

putting the encumbered land to a use that effectively eliminates

or substantially reduces the benefit of the Association’s parking

easement. The Association, like Parade Office, has the right to

make reasonable use of the encumbered land as a parking area,

with neither party unreasonably interfering with the parking

rights of the other. 

Parade Office’s motion for summary judgment (document no.

22) is denied, as is its motion to strike (document no. 24). The

Association’s motion for summary judgment (document no. 23) is

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granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 12, 2006

cc: Timothy A. Gudas, Esq.

Paul McEachern, Esq.

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