THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2025-0093, Patrice Thomas v. Paul R. Gosselin & a., the court on September 3, 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, Paul R. Gosselin, individually and as Trustee of the Paul R. Gosselin 2011 Revocable Trust, and Stephanie Gosselin, individually and as Trustee of the Stephanie Gosselin 2011 Revocable Trust (collectively, the Gosselins), appeal an order of the Superior Court (Leonard, J.) awarding the plaintiff, Patrice Thomas, title by adverse possession to portions of the parties' shared driveway. We affirm in part and reverse in part.
The trial court found, or the record otherwise supports, the following facts. The parties own neighboring properties (the Thomas Property and the Gosselin Property, respectively). The properties share a driveway, which is on the Gosselin Property. The Thomas Property benefits from an easement containing the right to pass and repass from the Thomas Property to the public way.
As early as 1969, the Thomas Property included a carport (Carport 1) which is attached to the side of Thomas's house and encroaches on the shared driveway. Since then, the owners of the Thomas Property and their guests have parked their cars in Carport 1, which still stands to this day. In addition to Carport 1, there was a second carport next to the Thomas Property (Carport 2). Carport 2 was attached to Carport 1 and located entirely on the shared driveway. Carport 2 first existed as early as the 1950s, but was removed for a time before reappearing in 1993. Thomas used Carport 2 to park her car from approximately 1993 to 2001. In 2002, Carport 2 collapsed due to snow damage and Thomas had it removed from the property. Following the removal of Carport 2, Thomas's guests parked their cars "in the area where Carport 2 stood" until at least 2019.
In 2002, Paul Gosselin's parents provided Thomas with temporary construction and septic easements. The parties executed a formal agreement to memorialize the grant of these easements. The agreement makes no reference to prior permission from the Gosselin family to Thomas for her to use or otherwise maintain Carports 1 and 2. The septic easement is based on a
"Boundary & Sewer Easement Plan" commissioned by Thomas (the 2002 Plan),
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which outlines the boundary of Carport 1 with the note "Encroachment Carport Over Lot Line." (Quotations and capitalization omitted.) The 2002 Plan was recorded in the Registry of Deeds.
Despite an amicable relationship between the parties throughout the years, their relationship deteriorated in 2018 "over a tangential matter."
Thomas filed claims against the Gosselins alleging that she had acquired through adverse possession the areas on which Carport 1 is located and where Carport 2 was previously located. Following a two-day bench trial, the trial court concluded that Thomas had successfully demonstrated that she adversely possessed "the portions of the [d]riveway beneath Carports 1 and 2."
The Gosselins appealed.
When reviewing a trial court's decision rendered after a trial on the merits, we will uphold the trial court's factual findings and rulings unless they lack evidentiary support or are legally erroneous. Maddock v. Higgins, 176 N.H. 182, 187 (2023). We do not decide whether we would have ruled differently, but rather, whether a reasonable person could have reached the same decision based upon the same evidence. Id. We defer to the trial court's judgment on such issues as measuring the credibility of witnesses and determining the weight to be given the evidence. Id. It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented. Id. We review the trial court's application of the law to the facts de novo. Id.
To acquire title to real property by adverse possession, the possessor must show twenty years of adverse, continuous, exclusive, and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim is being made. Mastroianni v. Wercinski, 158 N.H. 380, 382 (2009). To establish a prima facie case of adverse use, the plaintiff must first produce evidence of acts of such a character that they create an inference of non- permissive use. O'Malley v. Little, 170 N.H. 272, 278 (2017). Once the plaintiff satisfies this initial burden, the burden shifts to the defendant to produce evidence that the plaintiff's use of the disputed area was permitted. Id. The burden of persuasion at all times remains on the plaintiff. Id. "In evaluating the merits of an adverse possession claim, courts are to construe evidence of adverse possession of land strictly." Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 33 (2007) (quotation, brackets, and ellipsis omitted).
"A use of land is adverse when made under a claim of right where no right exists." Mastroianni, 158 N.H. at 382 (quotation omitted). "Adverse use has been defined as a use without license or permission." Id. (quotation omitted). Permission in the context of adverse possession can be either explicit or implied. O'Malley, 170 N.H. at 278. "The nature of the use, whether
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adverse or permissive, may be inferred from the manner, character and frequency of the exercise of the right and the situation of the parties." Id. Whether the use of a property has been adverse or permissive is a matter of fact to be determined by the trial court. Id.
We first address Carport 1. The Gosselins argue that Thomas "waived or abandoned any adverse possession claim that she had" because she "recorded a plan affirmatively depicting the area in question as being owned by the Gosselin family," which the Gosselins contend removed any notoriety from Thomas's purportedly adverse use. We disagree.
Because Carport 1 existed as early as 1969, the owners of the Thomas Property had already possessed Carport 1 for the requisite twenty-year period by the time the 2002 Plan was recorded. "After an adverse possessor possesses land for twenty years in a manner and under a claim adverse to that of the actual owner, the owner can no longer bring an action to recover the land, and title passes to the adverse possessor." Riverwood Commercial Prop's v. Cole,
138 N.H. 333, 334 (1994). We agree with the trial court that "the construction of a structure, like Carport 1, on a neighbor's property is a blatant act of 'such character that [it creates] an inference of non-permissive use.'" (Quoting O'Malley, 170 N.H. at 278.) See Mastroianni, 158 N.H. at 384 ("[W]hen a possessor is actually in possession of the disputed property, the open and notorious requirement is normally met." (quotation omitted)). Therefore, we conclude that the owners of the Thomas Property openly and notoriously possessed Carport 1 for over twenty years (1969 until as late as 2002), which put the Gosselins "on guard sufficiently to enable [them] to take preventive action with reasonable promptness" during the statutory period. Id. at 383 (quotation omitted); see also Hewes v. Bruno, 121 N.H. 32, 34-35 (1981) (noting that adverse possessors "used the land in question as if it were their own for over twenty years," which put record owners on notice of the adverse claim, and "[b]ecause [the record owners] failed to assert their rights within the twenty-year period . . . they are barred").
Thus, while Thomas's possession of Carport 1 would arguably not have been notorious following her recording of the 2002 Plan, see, e.g., Inhabitants of Town of Island Falls v. A.K.R. Inc., 170 A.2d 395, 398 (Me. 1961) ("The plaintiff cannot claim title by adverse possession, and at the same time recognize the title in one from whom it claims."); Pirri v. Chow, 333 A.3d 833, 840 (Conn. App. Ct. 2025) ("[T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other." (quotation omitted)), title had ripened in Thomas's favor by 2002. See Hewes, 121 N.H. at 34-35; see also Compart v. Wolfstellar, 906 N.W.2d 598, 604 (Minn. Ct. App. 2018) ("An acknowledgment by the adverse claimant of the owner's title before the statute has run in his favor breaks the continuity of his adverse possession." (emphasis added; quotation omitted)).
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We are also unpersuaded by the Gosselins' argument that the trial court erred when it concluded that Thomas's use of Carport 1 was not permitted. The Gosselins do not challenge the trial court's finding that there was insufficient evidence that Thomas's possession of Carport 1 was expressly permitted by the Gosselins; instead, they argue that, based on the history of friendly relations between the parties, the court erred in finding that the Gosselins did not impliedly permit the use of Carport 1. They primarily challenge the court's finding that the lack of a memorialized agreement between the parties, similar to the temporary construction and septic easements, was indicative of a lack of permission by the Gosselins. The record supports the court's finding that the history of friendly relations between the parties did not establish that the Gosselins permitted the construction and use of Carport 1. In reaching this conclusion, the court did not rely solely on the lack of a memorialized agreement; it also concluded that, because Carport 1 existed prior to the Gosselins' purchase of the Gosselin Property, "the subsequent relationship between the parties has little bearing on a pre-existing structure." These findings, including the lack of a memorialized agreement regarding Carport 1, are supported by the record, and we therefore cannot conclude that the court erroneously found that Thomas's use of Carport 1 was not permitted by the Gosselins. See id.; Maddock, 176 N.H. at 187. We therefore affirm the court's finding that Thomas adversely possessed the portion of the driveway where Carport 1 is located.
We now turn to the area of Carport 2. We conclude that the trial court erred when it determined that Thomas's possession of the area of Carport 2 was sufficiently notorious over the statutory period to establish adverse possession. We base this conclusion on several factors.
First, unlike the case with Carport 1, the 2002 Plan does not explicitly note an encroachment with respect to Thomas's use of the area of Carport 2, but as with Carport 1, this area is depicted as part of the Gosselin Property. The Gosselins could have reasonably interpreted Thomas's recording of the 2002 Plan as an acknowledgement that the Gosselins were the rightful owners of the area of Carport 2. Cf. Pirri, 333 A.3d at 840 ("An adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner's title." (quotation omitted)). Importantly, unlike Carport 1, Carport 2 did not exist continuously for the twenty-year statutory period prior to the recording of the 2002 Plan — the relevant iteration of Carport 2 only stood from 1993 to 2002. See Compart,
906 N.W.2d at 604. Following its collapse in 2002, Thomas elected to not rebuild Carport 2. See Maddock, 176 N.H. at 191 (noting that plaintiffs' erection and use of shed on defendant's property may have been notorious, but did not meet twenty- year requirement to establish adverse possession). Instead, Thomas directed
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her guests to park in the area where Carport 2 formerly stood, and her guests parked in a different orientation than they did when Carport 2 existed. Thomas testified that she had frequent visitors who would park in the area of Carport 2, some of whom would stay for a few days at a time. We conclude that Thomas's use of the area where Carport 2 formerly stood was insufficient to establish adverse possession. Cf. Blagbrough, 155 N.H. at 34 (noting that plaintiff's act of tearing down boathouse on defendant's property, "although not insignificant, was a one-time occurrence" that alone could not be considered more than an occasional trespass and concluding, after also considering plaintiff's other activities on defendant's property, some of which plaintiff engaged in "routinely," that plaintiff's use of property was not sufficiently notorious or exclusive to establish adverse possession). In other words, we conclude that less-than-daily parking by Thomas's guests in the area where Carport 2 formerly stood and in a different orientation than before — in addition to the 2002 Plan depicting the area of Carport 2 as part of the Gosselin Property — rendered the use insufficiently notorious to "alert the true owner of the cause of action." Blagbrough, 155 N.H. at 33. Because we conclude that the trial court erred with its application of the law to the facts with respect to the area of Carport 2, see Maddock, 176 N.H. at 187, we reverse the trial court's finding with respect to the area of Carport 2. Given the foregoing, we need not address the parties' other arguments with respect to either carport.
Affirmed in part and
reversed in part.
DONOVAN, COUNTWAY, and WILL, JJ., concurred; MACDONALD, C.J., sat for oral argument but did not participate in the final vote.
Timothy A. Gudas, Clerk