James R. McCann v. Brittany Bower & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2025-0230, James R. McCann v. Brittany Bower & a., the court on August 14, 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendants, Brittany Bower and Douglas Bower (the Bowers), appeal orders from the Superior Court (Schulman and Frizzell, JJ.) denying their motion for summary judgment, ruling that the property owned by the plaintiff, James R. McCann, benefits from an easement right to park on the Bowers' lot, and enjoining the Bowers from interfering with this right.¹We affirm.

I. Background From the summary judgment and trial records, the trial court found the following facts. The parties own abutting properties in Allenstown. The Bowers own and reside at 29 Ferry Street (Lot 43). McCann owns 27 Ferry Street (Lot 44), and rents the residence there to several tenants. Lot 44 tenants can park on the east side of the building, but McCann contends that Lot 44 tenants can also park to the west of the building, on the Bowers' lot, by virtue of a parking easement.

At one point in time, Patricia Hill owned a single parcel of land that she divided into the lots at issue. Initially, Lots 41, 43, and 44 housed residential buildings arranged in a "U" shape with Lot 42 in the middle of the "U." Lot 42 served as a driveway and common parking area for the other three lots. In 1999, Hill secured planning board approval for a lot line adjustment plan (the Plan) that eliminated Lot 42 and divided it among the surrounding lots 41, 43, and 44. The Plan aggregated the majority of Lot 42, including the parking area at issue in this appeal, into Lot 43. According to the Plan: "The parking area between the 3 buildings is to be common parking for all of the parcels shown on this plan. Lots 41, 43 & 44 are to have deeded access to this common parking area." The Plan depicts that parking area on Lot 43 in the location of the former Lot 42.

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Hill then conveyed Lots 43 and 44 to herself by quitclaim deed. The deed to Hill for Lot 43 provides "[t]his conveyance is made subject to the rights and easements to common use for parking of vehicles on the [Lot 42] area" as reserved for Lots 41 and 44. The deed to Hill for Lot 44 includes "the right and easement to allow the full time residents, owners or occupants" of Lot 44 "to station or park up to 2 motor vehicles" on the former Lot 42 (the "2-vehicle easement").

In 2003, Hill conveyed Lots 43 and 44, by separate deeds, to B-Marc Rentals LLC (B-Marc). Consistent with Hill's quitclaim deeds, the deeds to B- Marc referenced the Plan and the 2-vehicle easement. Several months later, B- Marc transferred Lot 44 to its managing member, Marc Grenier, as a result of which Grenier, in his individual capacity, became the sole owner of Lot 44 and B-Marc remained the sole owner of Lot 43. Similar to the prior deeds for Lot 44, B-Marc's deed to Grenier referenced the Plan and the 2-vehicle easement. In 2004, after conveying Lot 44 to Grenier, B-Marc executed and recorded a partial release of easement purporting to abandon Lot 44's parking easement on Lot 43.

In the years that followed, Lots 43 and 44 changed hands several times without incident. In March 2020, the Bowers purchased Lot 43. The deed to the Bowers made the conveyance subject to the Plan and to "the rights and easements to common use for parking of vehicle[s]" on the former Lot 42 area now part of Lot 43 "as conveyed or reserved for" Lots 41 and 44. McCann purchased Lot 44 in May 2020. His deed includes the 2-vehicle easement and references the Plan.

In December 2020, McCann petitioned for permanent injunctive relief against the Bowers' alleged interference with his rights pursuant to this parking easement. The Bowers disputed the existence of the easement and counterclaimed for declaratory relief. The court (Schulman, J.) denied the Bowers' motion for summary judgment.

In October 2024, after further motion practice, the trial court (Frizzell, J.) held a bench trial. The trial court granted McCann's easement claim and his injunction request, with the caveat that the Bowers may impose reasonable rules and regulations concerning McCann's parking rights on the Bowers' lot. The court denied the Bowers' motion to reconsider, and the Bowers appealed.

II. Analysis When reviewing a trial court's decision after a trial on the merits, we sustain the court's factual findings and rulings "unless they lack evidentiary support or are legally erroneous." Stowell v. Andrews, 171 N.H. 289, 297 (2018). In this exercise, we determine only whether, based on the evidence, a reasonable person could have reached the same decision as the trial court, and

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we do not consider whether we would have ruled differently. Id. We defer to a trial court's judgment in resolving conflicts in testimony, assessing credibility of witnesses, and determining the weight to place on any evidence. Id. We review, however, the trial court's application of the law to the facts de novo. Id. Resolution of whether the bundle of rights conveyed with Lot 44 includes a parking easement on Lot 43 requires the interpretation of a series of deeds, which presents a question of law that we review de novo. See id. at 296. When interpreting a deed, "we give it the meaning intended by the parties at the time they wrote it, taking into account the surrounding circumstances at that time."

Id. (quotation omitted). In the event of clear and unambiguous deed language, we discern the parties' intent from the deed itself, without resort to extrinsic evidence. Id. In the event of ambiguous deed language, however, "extrinsic evidence of the parties' intentions and the circumstances surrounding the conveyance [based upon the trial court's findings of fact] may be used to clarify its terms." Id. (quotation omitted).

A. Creation of the Easement

As described above, through a collection of four deeds, Hill owned and B- Marc came to own Lots 43 and 44. The trial court found, and the parties do not contest on appeal, that although Hill purported to grant a parking easement through her quitclaim deeds to herself and her deeds to B-Marc, those deeds did not create an easement. This is because an owner cannot grant an easement to him or herself. See Appletree Mall Assocs. v. Ravenna Inv. Assocs., 162 N.H. 344, 347 (2011) ("[A] landowner cannot have an easement over his or her own property."). B-Marc's sale of Lot 44 to Grenier, however, destroyed the unity of title and created the easement.² B-Marc's deed to Grenier states that Lot 44 includes "the right and easement to allow the full time residents, owners or occupants of the building on the premises described herein to station or park up to 2 motor vehicles in common with others on the lot marked Map 14, [former] Lot 42 which abuts the premises herein described." This plain language confirms B-Marc's intent to grant the parking easement to Grenier.

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The Bowers contend that B-Marc's transfer to Grenier did not create an easement because "[a]n easement destroyed by merger . . . is not revived when the original tenements are later severed." (Quotation omitted.) The unity of ownership over Lots 43 and 44, however, did not extinguish an existing easement. Rather, Hill's unity of ownership effectively nullified the easement language in her quitclaim deeds and B-Marc's unity of ownership effectively nullified the same easement language in B-Marc's deeds. See Austin v. Silver,

162 N.H. 352, 355 (2011) (concluding that when the dominant and servient estate remained in common ownership, the deed purporting to create a right- of-way failed to do so). The B-Marc deed to Grenier, which contained the easement language and severed unity of title, did not revive a previously existing easement, but instead created a new one.

B. B-Marc Granted an Appurtenant Easement

As a fallback position, the Bowers contend that B-Marc granted Grenier something less than an appurtenant easement, such as a license to park, or, at most an easement in gross. By way of background, we have explored the distinctions between appurtenant easements and easements in gross in Arcidi

v. Town of Rye, 150 N.H. 694 (2004), and between appurtenant easements and licenses in Quality Discount Market Corp. v. Laconia Planning Bd., 132 N.H. 734 (1990). An appurtenant easement creates a nonpossessory right to some specified use of another's land. Quality Discount, 132 N.H. at 739. That is, an appurtenant easement "creates two distinct estates — the dominant estate, which is the land that benefits by the use of the easement, and the servient estate, which is the land burdened by the easement." Arcidi, 150 N.H. at 698. The servient estate cannot exist independent of the dominant estate. Id. Importantly, an appurtenant easement runs with the land and "is inheritable."

Quality Discount, 132 N.H. at 739 (quotation omitted). In short, an appurtenant easement creates an alienable property interest in the servient estate.

An easement in gross, while also a nonpossessory right to the use of another's land, creates only a personal interest. Arcidi, 150 N.H. at 698. An easement in gross has only a servient estate because it grants the right to the holder, not to a dominant estate. Id. By contrast, a license "does not constitute an 'interest in land'" at all, but rather defines "a transient or impermanent interest." Quality Discount, 132 N.H. at 739 (quotation omitted). A license grants only a revocable personal privilege to perform an act on another individual's property. Id. It bears emphasis that we heed a "general rule of construction [that] favors appurtenant easements" and that "an easement is never presumed to be in gross or a mere personal right when it can be fairly construed to be appurtenant to some other estate." Burcky v. Knowles, 120 N.H. 244, 248 (1980).

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B-Marc's deed to Grenier expressly "convey[ed] the right and easement to allow the full time residents, owners or occupants of the building on the premises described herein" to park on former Lot 42. B-Marc made the deed subject to the Plan, and the Plan expressly states that "Lots 41, 43 & 44 are to have deeded access" to the common parking area on the former Lot 42. The deed created two distinct legal tenements: Lot 44 (the dominant estate) and Lot 43, which contains the parking area from the former Lot 42 (the servient estate). See Arcidi, 150 N.H. at 698. This is the hallmark of an appurtenant easement that granted Grenier an actual interest in the real estate comprising Lot 43 and not an easement in gross or a license. See id.; Quality Discount,

132 N.H. at 739-40.³ C. Release of Easement After conveying Lot 44, B-Marc executed a document purporting to

"release[] and discharge[] . . . any and all rights and easements for parking vehicles on the premises known as [Lot 43]," and to instead "reserve[] an easement over the driveway of [Lot 43] . . . solely for the purposes of non- motorized pedestrian access." B-Marc, however, did not own Lot 44 at the time it executed this document, having conveyed the lot to Grenier the previous year. B-Marc's after-the-fact release, therefore, could not change what B-Marc had already legally granted to Grenier. Cf. Waterville Estates Assoc. v. Town of Campton, 122 N.H. 506, 509 (1982) (stating that an appurtenant easement

"may be released or abandoned by the owner of the dominant estate"). During the trial, the Bowers orally requested judicial reformation of the deed consistent with B-Marc and Grenier's alleged intent to release the easement. The court denied the request as untimely and unsupported by the evidence, and the record lacks any evidence of the parties' intentions, aside from the recorded instruments. See Choquette v. Roy, 167 N.H. 507, 516 (2015) (providing that to "support reformation, the evidence must show that the instrument is not the true expression of the agreement," and that this burden of proof "is a heavy one" (quotations omitted)). Given this standard, we cannot conclude that the trial court erred in determining that the evidence did not support reformation. See Stowell, 171 N.H. at 297.

D. Remedy

Given that B-Marc's deed to Grenier created an appurtenant easement, and that B-Marc did not validly release the easement, a reasonable person

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could have reached the same decision as the trial court: "The owner of 27 Ferry Street (a/k/a Lot 44) has the legal right to park up to two motor vehicles on the property located at 29 Ferry Street (a/k/a Lot 43)."⁴See id. Based on that finding, the trial court enjoined the Bowers from

"interfering with McCann's rights to park on the Bowers' lot." Moreover, McCann testified that he brought this action because the Bowers "threaten[ed] to, and then actually did, impede upon [his] deeded rights to park" on the Bowers' lot. He discussed two instances in which the parties called police regarding the parking spaces. He also testified that this dispute has "posed an inconvenience" to his tenants. Finally, he stated that despite having "the right to park" in the spaces after the summary judgment order, he has refrained from doing so to avoid escalating the situation during the litigation. The Bowers did not offer any contravening testimony. McCann's testimony at the bench trial supports the trial court's finding of an ongoing "immediate danger of irreparable harm," the immediacy of which "has only subsided due to the existing litigation." The trial court did not err or unsustainably exercise its discretion in granting McCann this injunctive relief. See City of Keene v. Cleaveland, 167 N.H. 731, 742 (2015) ("We will uphold the decision of the trial court with regard to the issuance of an injunction absent an error of law, an unsustainable exercise of discretion, or clearly erroneous findings of fact.").

III. Bowers' Remaining Arguments The Bowers assert three additional arguments: (1) that McCann lacks standing; (2) that McCann "did not plead and prove a cause of action" for injunctive relief; and (3) that the trial court erred in denying the Bowers' motion to dismiss on those grounds. None of these arguments persuades us to a different outcome.

McCann's status as an owner of the dominant estate dispatches the Bowers' standing argument. See Restatement (Third) of Property: Servitudes, § 8.1, at 474 (2000) ("A person who holds the benefit of a servitude under any provision of this Restatement has a legal right to enforce the servitude."). McCann's standing, moreover, exists regardless of whether he or his tenants occupy the property. Cf. Lake v. Sullivan, 145 N.H. 713, 716-17 (2001) (concluding that where plaintiff was a tenant and did not own an interest in the

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property, any covenant made in the deed "would extend to an owner of the property, not to the plaintiff"). The trial court credited McCann's testimony that disputes had arisen in the past between him and the Bowers as to "who could park where," to the extent that local law enforcement had been called to the properties. McCann, in short, credibly established that his "rights have been . . . directly affected," giving him standing to bring this action. Richard v. Governor, 177 N.H. 11, 15 (2024), 2024 N.H. 53, ¶8 (stating that to have standing, "the party must show that the party's own rights have been or will be directly affected.").

As to McCann's cause of action, we observe that "New Hampshire is a notice pleading jurisdiction, and, as such, we take a liberal approach to the technical requirements of pleadings." City of Keene, 167 N.H. at 743 (quotation and brackets omitted). That McCann did not set forth his "factual allegations and legal theories as a separate count seeking injunctive relief is not fatal to [his] request; nor does it constrain the trial court in undertaking an inquiry as to whether the specific circumstances of the case warrant equitable relief." Id. In a similar vein, McCann's pleading, even though asserting only the Hill deeds' easements, adequately put the Bowers on notice of his position that he owns an appurtenant easement on Lot 43. For these reasons, the trial court did not err in denying the Bowers' motion to dismiss. See Ortolano v. City of Nashua,

177 N.H. 359, 361-62 (2025), 2025 N.H. 23, ¶5-6 (setting forth standard of review for trial court ruling on motion to dismiss). Any issues raised in the Bowers' notice of appeal that they have not briefed are deemed waived. State v. Blackmer, 149 N.H. 47, 49 (2003). Affirmed.

DONOVAN, COUNTWAY, GOULD, and WILL, JJ., concurred;

MACDONALD, C.J., sat for oral argument but did not participate in the final vote.

Timothy A. Gudas, Clerk