Estoppel by Deed Creates an Easement from a Deed’s “Abuttal” Reference Even Where the Way Runs Perpendicularly; Bad-Faith Fee Shifting Limited to Costs of an Unnecessary Separate Quiet Title Action

1. Introduction

In Kimberley Laris, as Trustee of the Hope for a Better Tomorrow Revocable Trust v. Stephen P. Weglarz, Jr., Trustee of Mary T. Weglarz Revocable Trust u/d/t/ Dated May 28, 2002 & a., the Supreme Court of New Hampshire affirmed a superior court order (issued after a bench trial) recognizing an easement for access over a disputed strip of land in Durham between Route 4 (Piscataqua Road) and Little Bay, and partially awarding attorney’s fees.

The parties are neighboring landowners whose parcels originated in a mid-20th-century subdivision of a larger tract once owned by Mary Ackroyd. The dispute centered on whether a north-south right-of-way (ROW) existed, where it was located, whether the defendants could deny it after taking title under deeds referencing a ROW, and whether the defendants’ earlier quiet title action justified fee shifting under the bad-faith litigation exception.

The court resolved the appeal by order under Sup. Ct. R. 20(3), but the order is precedential in its articulation and application of estoppel by deed, deed interpretation principles, quiet-title necessary-party obligations, and calibrated bad-faith fee shifting.

2. Summary of the Opinion

The court affirmed three principal determinations:

  • Pleading amendment: The trial court did not unsustainably exercise discretion by allowing Laris to amend her complaint to add estoppel-by-deed and related estoppel theories because the amendment added legal theories on the same factual predicate and did not unfairly surprise the defendants.
  • Easement by estoppel by deed: The defendants were estopped from denying an easement because deeds in the chain described the conveyed parcel as abutting a private way owned by the grantor (the retained Ackroyd/Towle strip), thereby creating at least a presumed grant of an easement, even though later plans were inaccurate and even though the way was argued to run perpendicular to the conveyed boundary call.
  • Attorney’s fees: The trial court permissibly awarded fees under the bad-faith exception, but limited recovery to fees associated with preparing and filing the 2021 action—because, had the defendants named Laris in their 2019 quiet title petition as required, most substantive litigation costs would still have been incurred in some form.

3. Analysis

3.1. Precedents Cited

A. Pleading amendments and trial court discretion

The court relied on New London Hosp. Ass'n v. Town of Newport, 174 N.H. 68 (2021), for the governing standard: amendment is within trial-court discretion and is favored unless it surprises the opposing party, introduces an entirely new cause of action, or requires substantially different evidence. The court also cited RSA 514:9 (2021) to emphasize that substantive amendments may be allowed when necessary to prevent injustice.

Applying New London Hosp. Ass'n, the court treated Laris’s estoppel-by-deed theory as a legal reframing of the same boundary/ROW controversy—rather than a new factual case—making the amendment appropriate.

B. Estoppel by deed and easements from “abuttal” calls

The centerpiece precedent was Martin v. Far Echo Harbor Club, 177 N.H. 778 (2026), 2026 N.H. 9, ¶18, which the court quoted for the rule that when a deed calls for an abuttal on a private way owned by the grantor, “there is a grant or at least a presumption of a grant of an easement,” and the grantor and successors are estopped from denying the easement. The court reinforced that the grantor’s subjective intent not to grant an easement is irrelevant under Martin.

The court rejected a narrowing construction urged by the defendants—namely, that “abuttal” requires the private way to run parallel to the boundary call. In doing so, it cited both Martin v. Far Echo Harbor Club and 700 Lake Avenue Realty Co. v. Dolleman, 121 N.H. 619 (1981), signaling that New Hampshire’s estoppel-by-deed doctrine turns on the deed’s representation of adjacency to a private way, not on the geometry of the way’s orientation.

On reliance, the court cited Loeffler v. Bernier, 173 N.H. 180 (2020), alongside Martin, to confirm that the doctrine focuses on the deed’s representation and the original conveyance context; it does not impose a separate requirement that the current easement claimant prove individualized reliance. (The court noted that even if reliance were required, the record contained testimony supporting it.)

C. Deed interpretation, ambiguity, and fact/law boundaries

For deed interpretation methodology, the court cited White v. Auger, 171 N.H. 660 (2019): deed interpretation is reviewed de novo; unambiguous language is construed from the deed alone; extrinsic evidence is admissible to resolve ambiguity.

On boundary location and monuments, the court cited Chao v. The Richey Co., Inc., 122 N.H. 1115 (1982), to distinguish legal interpretation from fact-finding about boundary location—affirming that supported factual determinations about boundaries will not be disturbed.

Critically, the court also invoked Town of Newbury v. Landrigan, 165 N.H. 236 (2013), to hold that an “unambiguous metes and bounds description will prevail over a general reference” in a “meaning and intending” clause. This principle allowed the court to conclude the Towle sisters did not convey the fee in the disputed strip to Ciborowski, even though a broad “meaning and intending” clause suggested they conveyed everything inherited from Ackroyd.

D. Appellate briefing and forfeiture

The court cited State v. Blackmer, 149 N.H. 47 (2003), to decline review of the defendants’ underdeveloped claim about potential error relating to adverse possession and the earlier quiet title decree. The citation underscores a practical appellate lesson: undeveloped, authority-free arguments may be deemed waived.

E. Res judicata, necessary parties, and quiet title procedure

On claim preclusion, the court applied Sleeper v. Hoban Family P'ship, 157 N.H. 530 (2008), and rejected res judicata because the fees incurred in filing the 2021 action could not have been litigated to conclusion in the 2019 action that was “all but concluded” when the later case began.

On necessary parties, the court relied on Porter v. Coco, 154 N.H. 353 (2006), and the text of RSA 498:5-a (2010), emphasizing that a quiet title petition must “name the person or persons who may claim such adverse estate or interest.” Because the defendants knew Laris claimed an easement but did not name her, she was a necessary party whose rights could be affected by the decree.

F. Attorney’s fees and the bad-faith exception

The court reviewed fee-shifting under Jesurum v. WBTSCC Ltd. P'ship, 169 N.H. 469 (2016), applying deferential “unsustainable exercise of discretion” review to the trial court’s fees decision.

Substantively, the court relied on Harkeem v. Adams, 117 N.H. 687 (1977), which authorizes attorney’s fees in extraordinary circumstances, including when a party acts in bad faith or when it should have been unnecessary for the successful party to bring the action. The Supreme Court affirmed the trial court’s tailored remedy: awarding fees for “preparing and filing” the 2021 action, but not for “prosecuting” it, given the complex merits and the likelihood that most litigation would have occurred even in a properly joined single action.

3.2. Legal Reasoning

A. The “location” problem: unreliable plans, reliable deeds, and extrinsic proof

A core factual/legal hybrid issue was whether the ROW lay within the disputed strip the defendants tried to quiet title to, or instead lay on the neighboring former Picard parcel. The court upheld the trial court’s finding that historic plans (the Towle Plan and the Ciborowski Plan) contained measurement and labeling errors that, if read “in a vacuum,” mislocated the ROW.

The Supreme Court accepted the trial court’s reconciliation of competing sources:

  • Metes-and-bounds in abutting deeds (e.g., the Pomerleau-to-Page deed and Ackroyd-to-Picard deed) revealed inconsistencies with the plans’ dimensions, indicating the plans were not dependable for precise ROW placement.
  • Subdivision history showed Ackroyd repeatedly conveyed parcels while retaining a north-south strip between grantees, consistent with a retained corridor from Cedar Point Road to Little Bay.
  • Modern survey evidence commissioned by the defendants acknowledged remaining unconveyed Ackroyd land and treated the ROW status as “unknown,” but its geometry supported the retained-strip theory.

This reasoning is significant because it treats “plan incorporation” as important but not conclusive—particularly where the incorporated plan is demonstrably inaccurate with respect to abutters and measurements.

B. The “existence” problem: why estoppel by deed controlled

Having located the ROW on retained land owned by the Towle sisters at the time of their conveyance to Ciborowski, the court applied estoppel by deed:

  • The Towle-Ciborowski deed’s metes-and-bounds description did not include the disputed strip; under Town of Newbury v. Landrigan, the metes and bounds prevailed over the broad “meaning and intending” clause. Therefore, the Towle sisters retained the fee in the ROW strip.
  • Because the deed described the conveyed parcel as running by “the northerly side of a right-of-way,” and because the grantor owned the underlying private way, the deed carried “a grant or at least a presumption of a grant” of an easement under Martin v. Far Echo Harbor Club.
  • The court rejected attempts to escape estoppel by deed through technicalities (orientation of the way; claimant-specific reliance). The doctrine’s purpose is to hold grantors and successors to the deed’s representation of access/adjacency, thereby protecting stability of titles and expectations built into conveyancing language.

In effect, once the trial court’s location finding stood, the estoppel-by-deed conclusion followed with strong doctrinal force: the grantor could not describe a parcel as abutting a private way it owned and later (or through successors) deny the resulting easement.

C. Attorney’s fees: “bad faith” found, but remedy cabined by causation and complexity

On fees, the Supreme Court endorsed a two-step approach:

  1. Misconduct/necessity: The defendants knew Laris claimed an easement yet filed a 2019 quiet title petition without naming her; the original decree purported to quiet title “free and clear” against respondents and “all unknown persons.” This supported the trial court’s finding that the 2019 petition was a calculated effort to extinguish Laris’s claim and that a separate action “should have been unnecessary.”
  2. Scope/causation: The court accepted the trial court’s reconsidered limitation: even with proper joinder, “substantial litigation would have ensued” due to the complex title history and ambiguity issues. Thus, only the incremental fees caused by the improper procedural posture—preparing and filing a separate 2021 petition—were shifted.

The decision therefore illustrates that New Hampshire’s bad-faith fee-shifting is not all-or-nothing; courts may tailor awards to the portion of fees causally attributable to the bad-faith conduct.

3.3. Impact

  • Broader reach of “abuttal” in estoppel-by-deed easements: By rejecting the argument that the private way must run parallel to the conveyed boundary, the order reduces a common escape hatch in easement-by-deed disputes and reinforces that adjacency calls can generate easement rights regardless of orientation.
  • Plan incorporation is not immunity: Conveyancers and litigants should not assume that an incorporated plan will control ROW placement if the plan’s abutter measurements are demonstrably inaccurate; metes-and-bounds in other deeds and subdivision history can overcome plan-based arguments.
  • Quiet title practice warning (RSA 498:5-a): Petitioners must name known easement claimants. Failure can support bad-faith findings and targeted fee awards, and can undermine the petition’s intended finality.
  • Fee shifting calibrated to avoid windfalls: Even where bad faith is found, courts may confine fees to the marginal costs created by the misconduct, especially when the underlying right is not “clearly defined and established” and the merits are complex.

4. Complex Concepts Simplified

  • Estoppel by deed: A rule preventing a grantor (and later owners claiming through that grantor) from denying what the deed represents. If a deed describes a parcel as bordering a private way the grantor owns, the law treats that as granting (or presuming) an easement in the way—even if the grantor later says it did not intend to grant access.
  • “Abuttal”: A deed “call” stating the land runs along or borders something (a road, a river, a neighbor, a right-of-way). This decision clarifies that the bordering relationship can create easement consequences even if the right-of-way’s direction is perpendicular to portions of the conveyed parcel.
  • Meaning-and-intending clause vs. metes and bounds: A “meaning and intending” clause is a general description of what the parties meant to convey (often by referencing another deed). “Metes and bounds” is the detailed boundary description by courses, distances, and monuments. If metes and bounds are unambiguous, they control over general intent language.
  • Quiet title and “necessary parties”: Quiet title aims to settle ownership interests definitively. A “necessary party” is someone whose interest could be affected by the judgment (such as a known easement claimant). Failing to include them can compromise the fairness and finality of the decree.
  • Bad-faith litigation attorney’s fees: Normally each side pays its own lawyers. Under Harkeem v. Adams, fees may shift when bad faith makes litigation unnecessarily necessary. Here, the fee award was limited to the extra costs caused by the defendants’ procedural misconduct (forcing a separate lawsuit), not the full cost of litigating a genuinely complex title dispute.

5. Conclusion

The Supreme Court of New Hampshire affirmed a durable conveyancing principle: when a deed describes land as abutting a private right-of-way owned by the grantor, estoppel by deed can закрепить (fix) an easement, preventing successors from later denying access—without importing technical limitations based on the way’s orientation. At the same time, the court reinforced disciplined fee-shifting: bad faith can justify attorney’s fees, but the award may be confined to the incremental costs caused by the bad-faith conduct where the underlying merits are complex and would have required substantial litigation regardless. Taken together, the order strengthens title stability, clarifies quiet title party-joinder obligations, and models proportional remedies for litigation misconduct.