Thurston Enterprises, Inc. v. Baldi

519 A.2d 297, 128 N.H. 760, 1986 N.H. LEXIS 371
CourtSupreme Court of New Hampshire
DecidedDecember 5, 1986
DocketNo. 85-510
StatusPublished
Cited by19 cases

This text of 519 A.2d 297 (Thurston Enterprises, Inc. v. Baldi) 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
Thurston Enterprises, Inc. v. Baldi, 519 A.2d 297, 128 N.H. 760, 1986 N.H. LEXIS 371 (N.H. 1986).

Opinion

Batchelder, J.

This case presents cross appeals from the determination by a Master {Mayland H. Morse, Jr., Esq.), approved by the Superior Court (O’Neil, J.), of the parties’ rights and duties in an easement. For the reasons that follow, we affirm in part, vacate in part, and modify in part.

Thurston Enterprises, Inc. (“Thurston”) petitioned to enjoin Lawrence Baldi (“Baldi”) from blocking the easement and to compel Baldi to remove or alter certain permanent obstacles. Baldi counterclaimed for $500,000 damages and for permanent revocation of the easement. The trial court severed the claims for damages. The master heard testimony and made his own observation of the site. He made the following findings of fact, which the parties do not dispute.

Thurston operated a marina. On adjoining property, Baldi operated a drive-in movie theater. In 1978, Baldi sold part of his land to Thurston. The transferred land was rocky, steep, and covered with slash. Baldi knew Thurston planned to develop the land into parking and boat storage facilities for the marina. Although there is now an alternative access, the only way vehicles could reach it at the time Baldi sold the land was to travel over Baldi’s drive-in theater. Consequently, Baldi deeded Thurston an easement across the theater.

The easement is a fifty-foot-wide specified course. It begins at the theater entrance on Route 3, passes under the theater marquee, continues past the ticket booth, which sits roughly in the center of the right of way, and crosses the theater lot to Thurston’s parcel. The ticket booth and the marquee, which was less than ten feet high, were preexisting and, of course, openly visible structures, but they were neither mentioned in the deed nor drawn on the subdivision map. At the time of the easement grant, most of the right of way, along with much of the rest of the patron parking area, was paved with a light asphalt “farm mix” on a three inch sand base. Although this farm mix was beginning to deteriorate after several years of use, it was adequate for the theater traffic. The deed subjected the easement to three limitations, only the first of which is significant in the present controversy. Limitation A reads: “The easement granted herein shall not interfere with the Grantor’s use of the property subject to the easement.”

In the spring of 1979, Thurston began using the easement to truck fill into his parcel. The light paving was not designed for heavy truck traffic. Furthermore, the paving was especially vulnerable in the spring, when frost melt destabilized the sand bed and water puddled deeply on the surface. The ten-wheel trucks were too high to pass under the marquee and too wide to stay on the right of way as it deflected around the ticket booth. Consequently, Thurston’s [763]*763trucks swung around the marquee and deviated from the right of way into speaker aisles 1-3. The trucks destroyed the pavement and caused deep ruts in the earth, both in the right of way and in the speaker aisles. This pattern was repeated in the spring of 1980 and again in the spring of 1984. In 1984, after Baldi was unsuccessful in persuading Thurston to cease driving heavy trucks across the right of way, Baldi blocked the entrance to the right of way with a pickup truck. Thurston’s petition and Baldi’s counter-petition followed.

The master concluded that, at the time of the conveyance, neither party contemplated such extensive use of heavy trucks. He found that Thurston had caused the destruction of the surface and subsurface of the right of way by using the easement unreasonably and by enlarging upon the granted easement. Accordingly, he ordered Thurston to repave the right of way. Specifically, he recommended that Baldi was not entitled to a revocation of the easement, nor could Baldi insist that Thurston use the new, alternative access. On the other hand, the master found that Baldi had no duty to relocate the preexisting marquee and ticket booth. Thurston was ordered to repair the speaker aisles, limit his trucks to no more than five per day, and to rebuild the rutted right of way. The master recommended the rebuilt right of way have a sub-base of one foot of bank-run gravel and a base of six to nine inches of crushed gravel compacted to receive a surface layer of three to six inches of asphalt concrete paving mixed with different sized aggregates. This construction is approximately equal to the paving specifications for federal highways. Since the master believed the new paving would be an improvement constituting a betterment for Baldi, he recommended that two-thirds of the reconstruction be paid for by Thurs-ton and one-third by Baldi.

On appeal, Baldi contends he has no duty to share the cost of reconstruction. Additionally, in oral argument, we asked Baldi’s attorney to discuss the alternative access, although he had not briefed a claim that the easement should be revoked. Thurston makes seven arguments, which can be grouped into four classes: that he is entitled to removal of the marquee and ticket booth; that restoring the speaker lanes and the right of way is an assessment of damages beyond the scope of equity jurisdiction; that the restriction to five trucks per day was arbitrary and an abuse of discretion; and that he cannot be required to put the right of way into a better condition than it was when it was conveyed to him, either by upgrading the paved portions or by paving the unpaved portions.

We affirm in part, and modify in part, but vacate rulings on several issues that should properly be resolved by the trial for [764]*764damages. An easement grants only a nonpossessory interest in land, Waterville Estates Assoc. v. Town of Campton, 122 N.H. 506, 508, 446 A.2d 1167, 1168 (1982); that is, a limited right to use but not possess the conveyed land. The grantee of the easement, who is the possessor of the dominant estate, must use the easement reasonably, Sakansky v. Wein, 86 N.H. 337, 341, 169 A. 1, 3 (1933), so as not to damage the possessory interest of the grantor, who is the possessor of the servient estate upon which the easement lies, Donaghey v. Croteau, 119 N.H. 320, 324, 401 A.2d 1081, 1084 (1979). Injunctive actions, such as the present claim and counterclaim, look to prevent future conduct rather than to remedy past conduct. Holland v. Amoskeag Mach. Co., 44 F. Supp. 884, 888 (D.N.H. 1942). Thus, injunctions issue only to prevent imminent irreparable harm. Murphy v. McQuade Realty, Inc., 122 N.H. 314, 316, 444 A.2d 530, 532 (1982). Because the separation between law and equity is not sharp, courts in New Hampshire have broad discretion in exercising equity jurisdiction, Sands v. Stevens, 121 N.H. 1008, 1011, 437 A.2d 297, 300 (1981). Nonetheless, equitable jurisdiction lies only when there is no plain and complete remedy at law, id. Applying these jurisdictional rules to easements, in an equitable action to determine the scope of rights in an easement, the remedy will ordinarily be limited to future conduct affecting the reasonable use of the easement and possession of the servient estate.

Thus, because the orders to repair look to remedy the effects of past conduct, we vacate them. Those issues involve legal questions of damage. In the present circumstances, reparation is not the same as restitution.

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Bluebook (online)
519 A.2d 297, 128 N.H. 760, 1986 N.H. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurston-enterprises-inc-v-baldi-nh-1986.