New Hampshire Department of Resources & Economic Development v. Dow

803 A.2d 581, 148 N.H. 60, 2002 N.H. LEXIS 91
CourtSupreme Court of New Hampshire
DecidedJuly 17, 2002
DocketNo. 2000-329
StatusPublished
Cited by4 cases

This text of 803 A.2d 581 (New Hampshire Department of Resources & Economic Development v. Dow) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Hampshire Department of Resources & Economic Development v. Dow, 803 A.2d 581, 148 N.H. 60, 2002 N.H. LEXIS 91 (N.H. 2002).

Opinions

DALIANIS, J.

This case involves the location of a common boundary line between two parcels of real property located in Ossipee. The Superior Court (T. Nadeau, J.), relying upon a boundary line agreement entered into by the parties’ predecessors in interest, quieted title in the State. We reverse and remand.

The record supports the following facts. The respondent, E. Milton Dow, and the State own adjacent parcels of real property in Ossipee. These parcels share a common boundary known as Hodgdon Mill Road. The respondent’s parcel is west of Hodgdon Mill Road and the State’s parcel lies to the northeast. A large esker is located in the vicinity of Hodgdon Mill Road. An esker is a “long narrow often sinuous ridge or [61]*61mound of sand, gravel, and boulders.” Webster’s Third New International Dictionary 775 (unabridged ed. 1961).

Both parcels were originally part of one large tract known as Lot 20. In the early 1800’s, a mill was constructed on Lot 20 and the town of Ossipee laid out a public highway to the mill, which became known as Hodgdon Mill Road. The mill was destroyed in 1862, and in 1880, the town discontinued Hodgdon Mill Road and ceased maintaining it.

By 1972, Lot 20 had been subdivided, with one half of the property belonging to the Retsof Company Trust (Retsof), the State’s predecessor in title, and the other half, known as Hobbs Exception, belonging to the Hobbs family (Hobbs), a predecessor in title to the respondent. In 1972 and 1973, John Morse of Kearwood Incorporated surveyed the Retsof property. This survey was used to create a subdivision plan, which was recorded in the Carroll County Registry of Deeds in June 1974. The Kearwood survey and subdivision plan depicted Hodgdon Mill Road as running along the top of the esker (upper road) between the parcels.

On September 7, 1974, Retsof and Hobbs entered into a boundary line agreement. With respect to the eastern boundary of Hobbs Exception, the agreement provides that it runs “along the westerly sideline of said Hodgdon Mill Road, across from land of the party of the first part, on a tie course and distance N 31° 12’ 36” E, 2029.4 feet, to an iron rod set at the junction of the old Hodgdon Mill Road and the Pine River.” The agreement does not reference any survey; however, the courses and distances set forth in the agreement describing Hodgdon Mill Road match those in the 1973 Kearwood survey. The agreement was recorded in the Carroll County Registry of Deeds on September 13,1974.

Hobbs subsequently conveyed Hobbs Exception to Pollini Brothers Incorporated (Pollini) by warranty deed, recorded on September 30,1976. Included with the deed was a sketch of the property depicting the physical location of Hodgdon Mill Road as the upper road, the same location as that shown on the Kearwood survey and subdivision plan.

In June 1978, the State purchased the Retsof parcel, which became known as the Pine River State Forest. After purchasing the property, the State marked the trees along the boundaries with blue blazes. The respondent purchased Hobbs Exception in April 1995, aware of the State’s marked boundaries.

In 1997, however, the respondent disputed the State’s location of Hodgdon Mill Road, claiming that a lower road, which ran diagonally down the eastern side of the esker, was the correct boundary (lower road). After examining the boundary line agreement and the Kearwood subdivision plan, the State concluded that it accurately blazed the boundaries called [62]*62for in those documents and informed the respondent by letter in July 1997 that the boundary was properly marked.

In December 1998, the respondent began cutting down trees on the State’s parcel, some of which had blue blazes on them, and excavated gravel from the esker. After unsuccessfully attempting to stop the respondent’s encroachment, the State petitioned the trial court for injunctive relief and damages, to which the respondent filed a cross-petition to quiet title.

Following an evidentiary hearing and a view, the trial court quieted title in favor of the State, finding that the boundary line agreement established the upper road as the intended common boundary. Because it relied exclusively upon the boundary line agreement to locate the parties’ boundary, the court declined to consider the historical location of Hodgdon Mill Road. The respondent filed a motion for reconsideration, which was denied. This appeal followed.

On appeal, the respondent argues that the trial court erred by: 1) refusing to locate Hodgdon Mill Road as it existed in 1858; 2) admitting the boundary line agreement into evidence and finding it relevant to determine the parties’ common boundary; 8) admitting the 1976 Pollini deed and sketch into evidence; and 4) ruling that the boundary line agreement could not be reformed due to mutual mistake of the parties.

“To prevail on appeal, the [respondent] must show that the trial court’s determination of the disputed boundar[y] was unsupported by the evidence or was erroneous as a matter of law.” Flanagan v. Prudhomme, 138 N.H. 561, 565 (1994). Because we conclude that the boundary line agreement is unenforceable, we do not reach the respondent’s remaining arguments.

In New Hampshire, RSA chapter 472 (1992) governs the criteria for creating a boundary line agreement. It provides that:

Whenever the boundary line between the land or estates of adjoining owners is in dispute, and the location of the same as described in the deeds of said owners or of their predecessors in title cannot be determined by the monuments and boundaries named in any of said deeds, the parties may establish said line by agreement in the following manner, and not otherwise.

RSA 472:1. It further provides that the agreement shall be in writing,

reciting that ... the division line between their lands is in dispute, that the line described in their respective deeds or in the deeds of any of their predecessors in title cannot be located [63]*63on the ground by reason of the loss or obliteration of the monuments and boundaries therein named and described, and containing a full and complete description of the line thus agreed upon and established____

RSA 472:4. In addition, the statute provides that “[t]he line agreed upon shall be surveyed and established by courses and distances, and suitable and permanent monuments shall be placed at each end and at each angle of the boundary so agreed upon.” RSA 472:3.

The respondent argues that the agreement is unenforceable because it does not comply with all of the statutory formalities. Specifically, he contends that the agreement is invalid because it does not identify the survey upon which it is based and because monuments were not placed along the boundary described in the agreement.

The interpretation of a statute is to be decided ultimately by this court. Pope v. Town of Hinsdale, 137 N.H. 233, 237 (1993). We begin by examining the plain language of the statute using the ordinary meanings of the words to determine legislative intent. Great Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 277 (1992). In construing a statutory provision, we construe the statute as a whole. Theresa S. v. Sup’t of YDC, 126 N.H. 53, 55 (1985).

We disagree with the respondent that the agreement is invalid because it does not refer to a survey.

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Bluebook (online)
803 A.2d 581, 148 N.H. 60, 2002 N.H. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hampshire-department-of-resources-economic-development-v-dow-nh-2002.