Introduction

In this boundary and access dispute between abutters in Rumney, New Hampshire, the Supreme Court reversed a Superior Court judgment that had quieted title to a strip of land within a private subdivision right‑of‑way (ROW) in favor of the defendants, Kenneth and Donna Sarpi, on an adverse possession theory. The plaintiff, Yvonne Downes, whose deeded property entirely underlies the 20‑foot ROW known as Risley Road, challenged findings that the Sarpis and their predecessors’ use had been sufficiently notorious and exclusive for 20+ years. She also contended that use within a shared ROW cannot, as a matter of law, be adverse or exclusive where multiple owners have permissive rights.

The high court agreed with the plaintiff, holding that the defendants’ and their predecessors’ pre‑fence activities—periodic lawn care, modest landscaping, child play, and occasional parking—did not meet the stringent notoriety and exclusivity requirements of adverse possession, especially given the permissive, shared nature of the ROW. Although the Sarpis’ later erection of fencing and berms could constitute adverse use, those actions had not persisted for the requisite 20 years before suit. The court reversed and remanded.

Summary of the Opinion

• The court reviewed the record on written submissions and disposed of the appeal by order under Supreme Court Rule 20(3).
• It reiterated that to acquire title by adverse possession a claimant must prove, by a preponderance, 20 years of adverse, continuous, exclusive, and uninterrupted use sufficient to give the true owner notice of the adverse claim. See Mastroianni v. Wercinski, 158 N.H. 380 (2009).
• Pre‑2009 uses—mowing, flower/mulch beds, occasional parking, and child play—were legally insufficient to constitute notorious, exclusive possession. The court relied on Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29 (2007), and Maddock v. Higgins, 176 N.H. 182 (2023), which hold that such incidental residential activities do not provide the requisite notoriety.
• Because the disputed strip lies within a deeded ROW benefitting multiple subdivision lot owners with cost‑sharing obligations, maintenance consistent with that permissive regime could not reasonably alert the fee owner to an adverse claim. See Titcomb v. Anthony, 126 N.H. 434 (1985).
• The Sarpis’ post‑2009 fencing/berming might constitute adverse use incompatible with the easement, but those acts had not persisted for 20 years before the plaintiff sued (and therefore could not mature into title). See Knight v. Coleman, 19 N.H. 118 (1848); RSA 508:2 (2010).
• The trial court’s legal conclusion that the defendants met all elements—particularly notoriety and exclusivity—was erroneous. The judgment quieting title in the Sarpis was reversed, and the case remanded.

Analysis

Precedents Cited and Their Role

• Mastroianni v. Wercinski, 158 N.H. 380 (2009): Cited for the fundamental elements of adverse possession and the policy that the true owner must be put “on guard” by the claimant’s acts. The opinion distinguishes Mastroianni where actual notice supported adverse possession, contrasting this case’s reliance on constructive notice from low‑level residential maintenance.
• Maddock v. Higgins, 176 N.H. 182 (2023): Emphasized strict construction of adverse possession proof and held that occasional clearing, raking, removing small trees, and walking a trail are insufficiently notorious. The court analogized the Sarpis’ and predecessors’ uses to Maddock’s sporadic, non‑exclusive acts, finding them inadequate.
• Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29 (2007): Held that recreational entry, children’s play, seasonal tree cutting, mowing, and planting were not enough for adverse possession. The court expressly reaffirms Blagbrough (rejecting any suggestion it had been undermined by Mastroianni), and applies it to conclude that landscaping and incidental residential uses do not satisfy notoriety.
• Titcomb v. Anthony, 126 N.H. 434 (1985): In the easement context, fences or gates can be compatible with continued easement use and therefore not adverse; only uses that assert exclusive dominion incompatible with the easement’s future exercise are adverse and start the prescriptive clock. This principle is central here because the disputed strip lies within a ROW benefitting multiple owners, making permissive maintenance non‑adverse.
• Knight v. Coleman, 19 N.H. 118 (1848): Recognizes that the maintenance of a fence in one place for 20 years, accompanied by a claim of ownership, can establish adverse possession. The court invokes Knight to illustrate that fencing can be notorious and adverse—but only if maintained for the full prescriptive period, which did not occur here.
• RSA 508:2 (2010): New Hampshire’s 20‑year statute of limitations for real actions provides the prescriptive period for adverse possession. Because any arguably adverse fencing/berming began after 2009 and suit was filed far sooner than 20 years later, the statutory period could not have run.

Legal Reasoning

The court’s reasoning proceeds in three interlocking steps: (1) a strict view of “notoriety” and “exclusivity,” (2) the legal significance of the property’s location within a shared ROW, and (3) the timing of any clearly adverse acts.

1. Notoriety requires conduct that would alert a reasonable owner to an adverse claim. The court reiterates that notoriety is grounded in public policy: existing rights should not be lost unless the owner is sufficiently put on guard to take prompt protective action. Periodic mowing, planting, letting children play, and occasional parking—without visible claims of dominion—are not the sort of clear, adverse assertions that the case law demands. This is not a subjective intent test; the outward acts themselves must notify the owner of an adverse claim. The court strictly construes such evidence, consistent with Maddock and Blagbrough.
2. Exclusivity is difficult to show inside a shared right‑of‑way. Because the deeds reserve the 20‑foot Risley Road ROW for the benefit of multiple lots and impose shared maintenance obligations, ordinary maintenance and landscaping within the ROW are presumptively consistent with permissive, common use. The record even included testimony that another owner plowed the disputed strip to maintain the full 20‑foot width. In such a regime, maintenance does not signal ouster. Under Titcomb, uses compatible with continued easement use are not adverse; only acts asserting exclusive dominion inconsistent with the easement—like fencing that blocks the way—are adverse.
3. Adverse acts were too recent to satisfy the 20‑year period, and tacking fails. The defendants’ construction of fences and berms after 2009 could constitute notoriety and exclusivity. But the prescriptive period is 20 years. Since the plaintiff sued well within 20 years of those acts (the fence was installed in 2021), the claim cannot mature. Tacking to predecessors’ use is unavailable because those predecessors’ activities were not themselves adverse and notorious. Without qualifying predecessor acts, there is nothing to tack.

Applying these principles de novo to the trial court’s factual findings, the Supreme Court concluded that the lower court erred as a matter of law in treating pre‑2009 landscaping and similar activities as sufficiently notorious/exclusive, and in discounting the legal significance of the shared ROW context.

Impact and Prospective Significance

• ROW and easement disputes: The decision squarely instructs that routine maintenance or beautification within shared private ways cannot, without clear acts of exclusion, ripen into adverse possession of strips within the ROW. Parties claiming ownership of slivers within private roads will need evidence of long‑standing barriers or equivalent assertions of dominion incompatible with the easement’s use.
• Boundary landscaping claims: The court continues New Hampshire’s strict stance: mowing, planting, and casual residential use do not satisfy notoriety. Claimants should expect to lose adverse possession cases built on “yardwork plus time,” unless coupled with unmistakable assertions like fences, walls, or structures maintained for the full 20 years.
• Tacking narrowed by quality of predecessor use: Tacking requires that each link in the chain be adverse and notorious. Landscaping and incidental use by predecessors will not “count,” shortening or eliminating the claimed prescriptive period.
• Evidentiary guidance: Aerial imagery showing a roadway’s curved travel path or a “hump” in a ROW will not, standing alone, establish notoriety. Documentary proof of fencing, gates, walls, posted signage asserting ownership, or actual notice to the fee owner—sustained for 20 years—will be critical.
• Litigation strategy: Fee owners underlying private ways should promptly object to encroachments like fences or berms, as those may be the first “notorious” acts capable of starting the clock. Servient owners should distinguish between permissible maintenance and exclusionary conduct; the latter risks liability before 20 years run.
• Precedential alignment: The order reaffirms, rather than revises, New Hampshire adverse possession doctrine—fortifying Blagbrough and Maddock and clarifying that Mastroianni remains limited to circumstances of actual notice. Although issued under Rule 20(3), the court’s reasoning is a clear signal of how similar records will be evaluated.

Complex Concepts Simplified

• Adverse possession: A way to become the legal owner of land by openly, continuously, exclusively, and adversely using it for 20 years, in a way that would alert the true owner to the claim.
• Notoriety: The use must be so visible and obvious that a reasonable owner would realize someone is claiming their land and could act to stop it.
• Exclusivity: The claimant’s use must be like that of an owner—not shared with the true owner or the public in a way consistent with permission.
• Right‑of‑way (ROW)/Easement: A non‑ownership right to pass over someone else’s land. When many owners share an easement, routine maintenance is usually considered permissive, not adverse.
• Tacking: Adding together successive periods of adverse possession by different occupants to reach 20 years, allowed only if each occupant’s use was itself adverse and notorious and there is privity between them.
• Constructive vs. actual notice: Constructive notice relies on what the visible acts would tell a reasonable owner; actual notice means the owner was directly informed (e.g., by letter or explicit claim).
• Quiet title: A court order declaring who owns disputed land.
• RSA 508:2: New Hampshire’s 20‑year limitations period governing real property claims, including the prescriptive period for adverse possession.

Conclusion

The Supreme Court of New Hampshire’s decision in Downes v. Sarpi decisively rejects adverse possession claims built on routine landscaping and incidental residential activities within a shared private right‑of‑way. Reaffirming Blagbrough and Maddock, and clarifying the limited, actual‑notice context of Mastroianni, the court holds that notoriety and exclusivity demand more—particularly where deeds confer common, permissive use and shared maintenance obligations. Only exclusionary acts incompatible with the easement, such as fences or berms, can suffice, and then only if maintained for the full 20‑year period. Because the Sarpis’ fence and berms post‑dated 2009 and suit followed in 2021, their claim could not mature, and tacking failed due to non‑adverse predecessor use.

The ruling offers clear guidance: within shared rights‑of‑way, maintenance and beautification are not adverse possession. Claimants must show long‑standing, unmistakable assertions of exclusive dominion, while fee owners should act promptly when exclusionary structures appear. In the broader New Hampshire landscape, the decision strengthens a predictable, evidence‑driven standard and curtails attempts to convert routine yardwork into land title.