Opinion
No. 4995.
Argued December 5, 1961.
Decided January 29, 1962.
1. The question of whether a grantee has an implied grant of a right of way of necessity across the land of another to reach his property is to be determined in accordance with the rule of reasonableness.
2. In such determination, the circumstances surrounding the transaction are controlling and they must be such as to raise a reasonable implication of a right granted.
3. No presumption of an implied grant of right of way of necessity was created in favor of the plaintiff to cross the land of the defendant to reach his property situated on the shore of a lake where there was evidence that plaintiff's land had never been used for anything but a summer camp and there was no persuasive evidence that either the plaintiff or his predecessor in title ever reached the property by means other than by crossing the water.
4. An undisclosed intention on the part of the plaintiff in such case to build a year-round home on the land when he acquired it which was several years after his predecessor in title had purchased it from the larger tract was not evidence of an implied intention to grant a right of way sufficient to support the needs of such a home.
Petition brought by Milton E. Elliott against Gordon M. Ferguson for a right of way in favor of the plaintiff across land owned by the defendant, together with a request that the defendant be temporarily and permanently enjoined from interfering with or preventing the plaintiff from gaining access to his land across land of the defendant.
The parties have agreed upon the following facts:
"1. That Elliott purchased on June 13, 1952, for valuable consideration from George E. Dodge, of Weare, a certain tract of land located in said Weare on the westerly side of Lake Horace, containing about two-fifths (2/5) of an acre and more particularly described in deed, Dodge to Elliott, recorded in Hillsborough County Records on January 19, 1953 . . . and that no right of way was mentioned in this deed.
"2. That George E. Dodge had purchased said real estate from Mildred Moultrop by deed dated August 10, 1944, recorded in Hillsborough County Records on July 24, 1945 . . . that this parcel was part of a larger acreage owned by said Mildred Moultrop; that there was no mention of any right of way.
"3. That Mr. Ferguson purchased certain premises from Mildred Moultrop surrounding the Dodge land (except for water frontage), by deed dated June 15, 1945, and recorded June 16, 1945 (previous to the recording of the Dodge deed), said Ferguson deed being recorded in Hillsborough County Records . . . that there was no reservation of any right of way in this deed.
"4. That it is impossible for Elliott to reach his land except by water from any highway without traveling over real estate now owned by Ferguson.
"5. That the parties agree that users (1930-1952) of the petitioner's property have reached the property by leaving the public highway at the north end of Lake Horace, approaching Lake Horace along an old roadway which enters the lake, and then proceeding across the lake by boat to the property of the petitioner.
"6. It is further agreed that at times said roadway from the public highway is impassable because of snow conditions, ice conditions or frost conditions.
"7. It is further agreed that at times, for all practical purposes, users of the petitioner's property cannot cross said Lake Horace because of snow and ice conditions.
"8. It is further agreed that the old roadway leading from the public highway to Lake Horace pond enters the pond area, and that the right of the public to use said land, if any such right exists, is not sufficient to be a public docking area.
"9. That the parties agree that persuasive evidence is lacking that such prior users of the property did or did not reach the petitioner's property by means of crossing the land now owned by the petitionee between the years from 1930 to the present time.
"10. The parties agree that the petitioner intends, and at the time of purchase, intended, to build a permanent year-round home on his property; and it is further agreed that there has not previously been a permanent year-round home on said property.
"11. That at such times as Elliott has gone to his lot, he has gone from a lot owned by his father, almost directly across Lake Horace.
"12. It is agreed that there has been a camp on the property since about the year 1926.
"13. It is further agreed that the petitioner has a family, consisting of a wife and six (6) small children.
"14. It is agreed that the petitionee knew he was not buying the point.
"15. It is agreed that the petitioner, when he bought the premises, was aware that his deed did not recite a right of way across the Ferguson land; and furthermore, it is agreed that there is no claim by the petitioner of a prescriptive right across the land.
"16. That Ferguson had no knowledge when he bought his place that Mildred Moultrop had once owned Dodge Point and sold it to Dodge; that if he had then had this knowledge, he still would have then bought his place.
"17. (a) That the original dam creating the Weare Reservoir, now Lake Horace, was finished in October, 1913.
(b) That the dam was washed out in 1938.
(c) That in 1940 The State of New Hampshire acquired all flowage rights (Hillsborough County Records, Vol. 1008, Page 42) for the Weare Reservoir.
(d) That in 1940 The State of New Hampshire rebuilt the dam containing Lake Horace.
(e) That The State of New Hampshire owns the dam and controls the level of Lake Horace.
"18. That the owner of the whole premises in question, and also the premises immediately joining Ferguson on the south, was Horace O. Chase, who died January 17, 1943, and who willed all of these premises to his daughter, Mildred Moultrop."
Further facts appear in the opinion.
Reserved and transferred without ruling by Griffith, J.
Wyman, Bean Tefft (Mr. Wyman orally), for the plaintiff.
Tiffany Osborne (Mr. Tiffany orally), for the defendant.
The fundamental question posed by the agreed facts is whether the plaintiff has a right of way of necessity across the defendant's land.
The law in this state is in accord with what we consider the more sensible rule that reasonable necessity is required to create a presumption of an implied grant of a way of necessity. See Goudie v. Fisher, 79 N.H. 424, 425; Farmington Library Association v. Trafton, 84 N.H. 29, 31. In support of this rule, see also 28 C.J.S., Easements, s. 35(b); 3 Tiffany, Real Property (3d ed.) s. 794, p. 293. This principle is consistent with the tenor of our law which stresses the rule of reasonableness rather than of rigidity. Sakansky v. Wein, 86 N.H. 337, 339; Bean v. Dow, 84 N.H. 464, 469.
However, since the doctrine rests upon the theory of an implied grant, the circumstances surrounding the transaction are controlling and they must be such as to raise a "reasonable implication of right granted." Bean v. Dow, supra, 469. The question before us here is whether the situation was such that the parties "could not in reason have understood . . . otherwise" than that the right of way which the plaintiff claims was granted. Id., 470.
Applying this test to the agreed facts, it appears that the land has never been used for anything but a summer camp, and there is no "persuasive evidence" that either the plaintiff or his predecessor ever reached the property by means other than by crossing the lake. The parties agree that the plaintiff had an undisclosed intention to build a year-round home when he purchased the lot some seven years after it was first severed from the larger tract. Obviously this cannot lend weight to the argument that his predecessor Dodge and Dodge's grantor had previously by implication intended a grant of a right of way sufficient to support the needs of such a home.
In conclusion, the burden was upon the plaintiff to establish his claim. Without detailing the facts hereinbefore stated, it seems apparent that we cannot hold on the record before us that he has sustained that burden.
The order is
Petition dismissed.
All concurred.