Severance-of-Title Creates an Appurtenant Parking Easement; Post-Conveyance “Release” by a Non-Owner Is Ineffective

Case: James R. McCann v. Brittany Bower & a.
Court: Supreme Court of New Hampshire
Date: August 14, 2026

1. Introduction

This Allenstown property dispute centers on whether Lot 44 (owned by plaintiff James R. McCann) enjoys a deeded right to park up to two vehicles on a parking area now located within Lot 43 (owned by defendants Brittany and Douglas Bower). The properties were once part of a single parcel owned by Patricia Hill. A 1999 lot line adjustment plan (the “Plan”) eliminated an intermediate lot (Lot 42) that had functioned as shared driveway/parking, and redistributed its area among surrounding lots—placing most of the former common parking area into what became Lot 43.

The key issues were: (i) when and how a parking easement could be created given periods of common ownership (unity of title); (ii) whether the parking right was appurtenant (running with Lot 44) rather than merely a license or easement in gross; (iii) whether a later-recorded “partial release” could extinguish the parking right after Lot 44 had already been conveyed away; and (iv) whether injunctive relief and standing were properly found.

2. Summary of the Opinion

The Supreme Court of New Hampshire affirmed the trial court’s judgment that Lot 44 benefits from an appurtenant easement to park up to two motor vehicles on Lot 43, and affirmed the injunction prohibiting the Bowers from interfering with that right (while permitting the Bowers to impose reasonable rules and regulations governing the parking). The Court held:

• Hill’s and B-Marc’s earlier deeds containing easement language did not create an easement while the same owner held both dominant and servient parcels (unity of title).
• The easement was created later when B-Marc severed unity of title by conveying Lot 44 to Grenier via a deed expressly granting the parking “right and easement.”
• The later “partial release of easement” executed by B-Marc could not extinguish the easement because B-Marc no longer owned Lot 44 (the dominant estate) when it signed the release.
• The deed language and the Plan supported an appurtenant easement (not a license or easement in gross), consistent with New Hampshire’s construction favoring appurtenant easements.
• McCann had standing as the dominant-estate owner, pleaded sufficiently under notice pleading standards, and supported injunctive relief with evidence of threatened interference and irreparable harm.

3. Analysis

A. Precedents Cited

The Court’s analysis is anchored in established New Hampshire doctrines governing deed interpretation, easement creation under unity of title, classification of servitudes, and equitable relief.

• Stowell v. Andrews, 171 N.H. 289 (2018)
  Use in this case: Provided the appellate framework: factual findings and discretionary rulings after a merits trial are sustained unless unsupported or legally erroneous, while deed interpretation and application of law to facts are reviewed de novo. The Court also applied Stowell’s deed-interpretation principle: intent is drawn from unambiguous deed text; extrinsic evidence is considered only if ambiguous.
• Appletree Mall Assocs. v. Ravenna Inv. Assocs., 162 N.H. 344 (2011)
  Use in this case: Supplied the foundational rule that “a landowner cannot have an easement over his or her own property.” The Court used this to explain why Hill’s quitclaim deeds to herself (and similarly B-Marc’s deeds while it owned both parcels) could not create an enforceable easement during unity of title.
• Austin v. Silver, 162 N.H. 352 (2011)
  Use in this case: Reinforced the unity-of-title principle: when dominant and servient estates remain in common ownership, a deed “purporting to create” an easement fails to do so. The Court relied on Austin to reject the defendants’ “revival after merger” argument by reframing the chronology: no easement existed to be extinguished or revived; the operative deed upon severance created a new easement.
• Arcidi v. Town of Rye, 150 N.H. 694 (2004)
  Use in this case: Provided the doctrinal distinction between appurtenant easements and easements in gross—especially the concept of dominant and servient estates and the idea that an easement in gross lacks a dominant estate and is personal to the holder. This supported the conclusion that the parking right ran with Lot 44.
• Quality Discount Market Corp. v. Laconia Planning Bd., 132 N.H. 734 (1990)
  Use in this case: Supplied the distinction between appurtenant easements and licenses. The Court contrasted the specific deed language here (“right and easement” tied to occupants of the building on Lot 44 and referencing the Plan) with the permissive language in Quality Discount (“agrees to permit”), which the Court there construed as a mere license.
• Burcky v. Knowles, 120 N.H. 244 (1980)
  Use in this case: Cited for the “general rule of construction” favoring appurtenant easements: an easement is not presumed to be in gross or merely personal if it can fairly be construed as appurtenant. This canon supported classifying the right as appurtenant given the Plan and deed structure.
• Waterville Estates Assoc. v. Town of Campton, 122 N.H. 506 (1982)
  Use in this case: Supported the proposition that an appurtenant easement “may be released or abandoned by the owner of the dominant estate,” which undermined the effectiveness of B-Marc’s post-conveyance “release” when it no longer owned Lot 44.
• Choquette v. Roy, 167 N.H. 507 (2015)
  Use in this case: Set the rigorous standard for deed reformation: a “heavy” burden requiring evidence that the instrument is not the true expression of the agreement. The Court relied on this to affirm denial of reformation where the record lacked evidence of intent beyond recorded instruments and the request was untimely.
• City of Keene v. Cleaveland, 167 N.H. 731 (2015)
  Use in this case: Provided (i) the standard for reviewing issuance of an injunction (error of law, unsustainable exercise of discretion, or clearly erroneous facts), and (ii) New Hampshire’s notice pleading principle that technical pleading defects are not fatal where the defendant has fair notice and equitable relief is supported by circumstances.
• Richard v. Governor, 177 N.H. 11 (2024), 2024 N.H. 53, ¶8
  Use in this case: Supplied the standing test: the party must show its own rights have been or will be directly affected. The Court found standing satisfied because McCann owned the dominant estate and credibly testified to direct interference and disputes.
• Lake v. Sullivan, 145 N.H. 713 (2001)
  Use in this case: Used by analogy to emphasize that deed-created property rights generally inure to the property owner, supporting that McCann’s standing exists regardless of whether he personally occupies the property.
• Frost v. Polhamus, 110 N.H. 491 (1970)
  Use in this case: Applied to reject the Bowers’ claim of lack of notice as bona fide purchasers: the language in their deed subjected the conveyance to the relevant rights and easements and thus put them on notice.
• Ortolano v. City of Nashua, 177 N.H. 359 (2025), 2025 N.H. 23, ¶5-6
  Use in this case: Provided the standard of review for denial of a motion to dismiss, reinforcing the Court’s conclusion that the pleadings sufficiently stated a basis for relief.
• Sabinson v. Trustees of Dartmouth College, 160 N.H. 452 (2010)
  Use in this case: Invoked to decline consideration of an underdeveloped legal argument regarding LLC transfer requirements; the Court required adequately developed argument and legal support.
• State v. Blackmer, 149 N.H. 47 (2003)
  Use in this case: Applied twice for waiver: issues referenced in the notice of appeal but not briefed are deemed waived.

B. Legal Reasoning

1. Deed interpretation and the “unity of title” barrier

The Court treated the central question—whether Lot 44’s “bundle of rights” includes parking rights on Lot 43—as a deed-interpretation problem reviewed de novo under Stowell v. Andrews. The Court accepted (and the parties did not contest) that Hill’s deeds and B-Marc’s earlier deeds could not create an easement while the same owner held both parcels, because an easement requires separate dominant and servient estates. This flowed directly from Appletree Mall Assocs. v. Ravenna Inv. Assocs..

Critically, the Court rejected the defendants’ “revival after merger” framing. The defendants argued that an easement destroyed by merger is not revived upon later severance. The Court’s answer was conceptual: there was no preexisting easement that had been extinguished by merger; instead, the earlier “easement language” was legally ineffective during unity of title (as in Austin v. Silver). The operative moment occurred later, when unity ended.

2. Easement created at severance by the B-Marc-to-Grenier deed

The Court identified the decisive instrument: B-Marc’s deed conveying Lot 44 to Grenier, which expressly granted “the right and easement” to allow full-time residents/owners/occupants of the building on Lot 44 to park up to two motor vehicles on the former Lot 42 area (now within Lot 43). Because that deed severed unity of title and included express easement language, it created a new easement at that moment.

The defendants’ attack on the deed’s validity (corporate compliance/authority) failed because the deed was facially authorized (signed by Grenier as manager with an authorization recital) and the record lacked evidence undermining it; further, additional arguments about LLC transfer mechanics were not addressed due to inadequate development under Sabinson v. Trustees of Dartmouth College.

3. Classification as an appurtenant easement (not a license or easement in gross)

Having concluded an easement was created, the Court then classified its nature. Using Arcidi v. Town of Rye and Quality Discount Market Corp. v. Laconia Planning Bd., it distinguished:

• Appurtenant easement: a nonpossessory property interest benefiting a dominant estate (Lot 44) and burdening a servient estate (Lot 43), which runs with the land and is inheritable.
• Easement in gross: a personal right to the holder, with only a servient estate and no dominant estate.
• License: a revocable personal privilege, not an interest in land.

The Court emphasized New Hampshire’s interpretive preference for appurtenant easements under Burcky v. Knowles. The deed and Plan linked parking rights to Lot 44 and described “deeded access” for Lots 41, 43, and 44, creating the hallmark two-estate structure. The Court also contrasted this precise conveyance language with the permissive language in Quality Discount, where the Court had found only a license.

4. The attempted “release” was ineffective, and reformation was not supported

The Court held B-Marc’s later-recorded “partial release” could not extinguish the easement because B-Marc no longer owned Lot 44 when it executed the release. Citing Waterville Estates Assoc. v. Town of Campton, the Court noted that release/abandonment is the province of the dominant-estate owner.

The defendants’ oral request for judicial reformation failed for two independent reasons reflected in the order: it was untimely and unsupported by evidence satisfying the “heavy” burden of Choquette v. Roy. With no evidence of the alleged mutual intent beyond the recorded instruments, the trial court’s refusal to reform was affirmed.

5. Injunctive relief and the ability to impose reasonable rules

The Court affirmed the injunction under City of Keene v. Cleaveland. McCann testified to threats and actual interference, police involvement, inconvenience to tenants, and continued restraint from using the spaces to avoid escalation—supporting the trial court’s finding of an “immediate danger of irreparable harm” that was only temporarily subdued by ongoing litigation. No contrary testimony was offered. The Court also left intact the trial court’s caveat: the Bowers may impose reasonable rules and regulations regarding the exercise of the parking easement (a common equitable mechanism to reduce conflict while preserving the servitude).

6. Standing, pleading, and notice to purchasers

The Court rejected remaining procedural challenges:

• Standing: As owner of the dominant estate, McCann had a legal right to enforce the servitude; the Court cited Restatement (Third) of Property: Servitudes, § 8.1 and applied the direct-affect test from Richard v. Governor.
• Pleading sufficiency: Under New Hampshire notice pleading (per City of Keene v. Cleaveland), McCann’s failure to plead injunctive relief as a separate count was not fatal, and his allegations gave fair notice of an appurtenant-easement claim.
• Notice / bona fide purchaser: The Bowers’ deed made the conveyance subject to the Plan and to the rights and easements for common parking as conveyed or reserved for Lots 41 and 44; this language placed them on notice under Frost v. Polhamus.
• Chain-of-title technicalities: The Court referenced RSA 477:16 (2024) (technical defects in deeds becoming valid after 10 years from recording) as an additional reason the challenge did not change the outcome on the record presented.
• Waiver: Issues not briefed were waived under State v. Blackmer.

C. Impact

This order meaningfully clarifies (and, for practitioners, operationalizes) several recurring property-law disputes in New Hampshire:

• Creation vs. “revival” after unity of title: The Court’s framing is practical: easement language in deeds executed during unity of title is legally ineffectual; when the parcels are later severed by a deed that expressly grants an easement, the easement is created at severance rather than “revived.” This helps litigants avoid mischaracterizing the issue as merger-and-revival when no easement ever validly existed in the first place.
• Drafting and transactional discipline: Parties cannot rely on post-conveyance releases by prior owners to alter already-conveyed appurtenant rights. If the intent is to remove a benefit, it must be accomplished by the then-current dominant-estate owner (or through a properly supported reformation action meeting the Choquette standard).
• Appurtenant preference and specificity: The order reinforces that precise “right and easement” language tied to a described dominant estate, especially when consistent with a recorded plan, will likely be construed as appurtenant under Burcky, not downgraded to a license or easement in gross.
• Enforcement tools: The opinion underscores that credible evidence of ongoing interference and threatened escalation can justify injunctive relief, while allowing servient owners to manage use through reasonable rules—an approach likely to be replicated in neighbor disputes over shared parking and access areas.

4. Complex Concepts Simplified

• Unity of title (common ownership): If the same person owns both parcels, the law treats “easement” language as ineffective because an easement requires someone to have rights in another’s land.
• Merger: If a valid easement exists and later one owner acquires both dominant and servient estates, the easement can be extinguished. Here, the Court said the better view was: there was no valid easement to extinguish during unity because it never came into existence until severance.
• Appurtenant easement vs. easement in gross: Appurtenant easements “belong to the land” (Lot 44) and transfer automatically with it; easements in gross “belong to a person” and are typically personal.
• License: A revocable permission to do something on another’s land (e.g., “you may park here”), not a property right that runs with land.
• Reformation: A court-ordered rewrite of a deed to match the parties’ true agreement—available only on strong proof that the recorded instrument fails to reflect that agreement.
• Injunction: A court order stopping interference (here, with parking). Courts consider the risk of irreparable harm and whether legal remedies are inadequate.
• Notice pleading: A complaint need not be hyper-technical; it must give the other side fair notice of what is being claimed and why.

5. Conclusion

The New Hampshire Supreme Court affirmed that Lot 44 holds an appurtenant two-vehicle parking easement over Lot 43, created when a deed both severed unity of title and expressly granted the “right and easement.” The Court further held that a later “release” executed by a party that no longer owned the dominant estate could not extinguish the easement, and that reformation requires heavy proof not present in the record. Finally, the Court validated injunctive enforcement in the face of threatened and actual interference, while recognizing the servient owners’ ability to impose reasonable regulations. The decision strengthens predictability in shared-parking and access disputes by tying outcomes closely to recorded instruments, severance timing, and careful classification of servitude interests.