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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Rockingham
No. 2017-0110


                               JANET BALISE & a.

                                         v.

                                BRAD BALISE & a.

                         Argued: November 16, 2017
                      Opinion Issued: December 21, 2017

      Soule, Leslie, Kidder, Sayward & Loughman, PLLC, of Salem (David W.
Sayward on the brief and orally), for the plaintiffs.


      Forman, Clark, Pockell & Associates, P.A., of Londonderry (Steven A.
Clark on the brief and orally), for defendants Brad Balise, Jon Carpenter, and
Winifred Carpenter.

        DALIANIS, C.J. Defendants Brad Balise (Brad), Jon Carpenter, and his
mother, Winifred Carpenter, appeal the entry of judgment by the Trial Court
(Anderson, J.) in favor of the plaintiffs, Janet and Stanley Balise, on the
plaintiffs’ petition to quiet title and for a declaratory judgment that they have a
right to use a discontinued portion of a road to access their property and install
utilities to service it. We affirm.
       The relevant facts follow. The parties own property in Windham. The
plaintiffs own tax lot 21-G-600 (Lot 600), Brad (the plaintiffs’ son) owns tax lot
21-G-700 (Lot 700), and Winifred owns tax lot 24-G-100 (Lot 100). The
plaintiffs formerly owned Lot 700. They sold it to Brad in 1999.

       Lots 100 and 700 are adjacent to one another and have frontage on
Range Road, a public way. Lot 600 abuts Lot 700 and has no frontage on
Range Road or on any other public way. The disputed road, which was
discontinued in 1962, runs perpendicular to Range Road. The disputed road
lies between Lots 700 and 100. Lot 600 abuts it.

      In the 1970’s, a wooden barrier was placed across the disputed road.
Since 1998, Brad has posted “No Trespassing” signs on the road. He has also
parked vehicles and placed logs or boulders on it.

       The plaintiffs seek to construct a residential dwelling on Lot 600, using
the disputed road to access their property and provide utilities to it. In 2015,
they brought the instant lawsuit against the defendants. The plaintiffs sought
a declaration that, pursuant to RSA 231:43 (Supp. 2016), they have a right to
use the disputed road to access their lot, which has not been “extinguished by
adverse possession or other actions of the Defendants,” and a declaration that
their statutory right of access includes a right to install utilities in the disputed
road. Thereafter, the plaintiffs moved for summary judgment as to both their
claim of a right to use the disputed road for access to their lot and their claim
of a right to install utilities in the disputed road. The defendants moved for
summary judgment only as to the plaintiffs’ claim of a right to install utilities.

       The trial court granted the plaintiffs’ first requested declaratory
judgment, ruling that they “have a statutory right of access” over the disputed
road under RSA 231:43, III, “which the Defendants have not extinguished by
adverse possession.” However, the trial court denied the parties’ cross-motions
for summary judgment as to the plaintiffs’ second requested declaratory
judgment, deciding that whether the plaintiffs “are able to run utilities . . . is
subject to the rule of reason, which is a question for the trier of fact.”
Subsequently, the court held a two-day bench trial, and after reviewing the
evidence, which included a view of the disputed road and surrounding
property, determined that it was reasonable for the plaintiffs to install a single
utility pole on the disputed road and to install utilities underneath the road.
This appeal followed.

       On appeal, the defendants contest the trial court’s summary judgment
rulings. They argue that, in granting partial summary judgment to the
plaintiffs, the trial court erred by: (1) finding that the plaintiffs have a
statutory right to access their lot over the disputed road; (2) determining that,
in their deed conveying Lot 700 to Brad, the plaintiffs did not release their right



                                          2
to use the disputed road to access Lot 600; (3) granting summary judgment to
the plaintiffs on the issue of adverse possession; and (4) determining that
whether the plaintiffs “are able to run utilities . . . is subject to the rule of
reason.” We address each argument in turn.

       In reviewing a trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. JMJ Properties, LLC v. Town of Auburn, 168 N.H. 127, 129
(2015). If our review of that evidence discloses no genuine issues of material
fact, meaning facts that would affect the outcome of the litigation, and if the
moving party is entitled to judgment as a matter of law, then we will affirm the
grant of summary judgment. Sabinson v. Trustees of Dartmouth College, 160
N.H. 452, 455 (2010). We review the trial court’s application of the law to the
facts de novo. Brown v. Concord Group Ins. Co., 163 N.H. 522, 524-25 (2012).

       The defendants first argue that the trial court misconstrued RSA 231:43,
III as granting the plaintiffs a right to access their lot over the disputed road.
The defendants contend that RSA 231:43, III “was adopted to protect a
landowner from being deprived of its only means of access,” and that, because
the plaintiffs have other means of access to their lot, the statute does not grant
them a right of access over the disputed road. They argue that the plaintiffs’
alleged other means of access raises a genuine issue of material fact as to
whether the plaintiffs are entitled to a statutory right of access. For the
purposes of addressing the defendants’ argument, we assume without deciding
that the plaintiffs have other means of access to their lot.

       Because this issue requires us to determine whether the trial court
correctly interpreted RSA 231:43, our standard of review is de novo. See Cady
v. Town of Deerfield, 169 N.H. 575, 577 (2017). In matters of statutory
interpretation, we are the final arbiter of legislative intent as expressed in the
words of the statute considered as a whole. Id. We first examine the language
of the statute and ascribe the plain and ordinary meanings to the words used.
Id. We interpret legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. Unless we find statutory language to
be ambiguous, we will not examine legislative history. Id.

       RSA 231:43 governs the discontinuance of class IV, V, and VI highways
or portions thereof. See RSA 231:43, I. RSA 231:43, I, provides, in pertinent
part, that “[a]ny class IV, V or VI highway, or any portion thereof, in a town
may be discontinued by vote of a town.” RSA 231:43, II requires a town’s
selectboard to notify “all owners of property abutting” a class IV, V, or VI
highway before voting upon whether to discontinue the highway or a portion



                                        3
thereof. RSA 231:43, III provides that “[n]o owner of land shall, without the
owner’s written consent, be deprived of access over such highway, at such
owner’s own risk.”

        The relevant statutory language is substantially the same now as it was
in 1962, when the disputed road was discontinued. See Laws 1949, 13:1. At
that time, the relevant statute provided: “Any class IV, V, or VI highway, or any
portion thereof, in a town may be discontinued by vote of a town; . . . provided
. . . that no owner of land shall, without his written consent, be deprived of
access over such highway, at his own risk.” Id.

      The right conferred by RSA 231:43, III is a right of access over a
discontinued class IV, V, or VI highway. Under the plain language of the
statute, that statutory right is not conditioned upon the discontinued highway
being an abutting landowner’s sole means of accessing his or her property.
Accordingly, we reject the defendants’ assertion that, because the plaintiffs
have other means of access, the statute does not grant them a right of access
over the disputed road.

       The defendants also allege that the plaintiffs have not used the
discontinued road and argue that such nonuse raises an issue of material fact
as to whether they remain entitled to their statutory right to use the disputed
road to access their property. For the purposes of addressing this argument,
we assume without deciding that the plaintiffs have not used the disputed
road. However, based upon the plain language of the statute, the plaintiffs’ use
of the disputed road, or lack thereof, does not bear upon their statutory right
under RSA 231:43, III.

      The defendants next assert that the following language in the deed
conveying Lot 700 demonstrates that the plaintiffs (the grantors) released to
Brad (the grantee) their right to use the disputed road to access Lot 600: “The
within Grantors hereby release to said Grantee[ ] all rights of curtesy and
homestead and other interest therein.” For the purposes of addressing the
defendants’ argument, we assume without deciding that the written consent to
which RSA 231:43, III refers may be given to an entity other than the town.

       We review the trial court’s interpretation of a deed de novo. Sanborn v.
428 Lafayette, LLC, 168 N.H. 582, 587 (2016). “In 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 the time.” Id. (quotation omitted).
“We base our judgment on this question of law upon the trial court’s findings of
fact.” Id. (quotation omitted).

      Viewing the disputed language in context, we conclude that the word
“therein” refers to the land conveyed by the deed — Lot 700 — and does not



                                       4
include the disputed road. The land to which the deed refers is that “along” the
disputed road. That description does not include the disputed road itself.
Thus, we hold that the deed language upon which the defendants rely does not
constitute the plaintiffs’ written consent to release their statutory right to use
the disputed road to access Lot 600.

      The defendants next contend that the trial court erred when it
determined that, according to the undisputed material facts, they did not
extinguish the plaintiffs’ statutory right of access through adverse possession.
For the purposes of addressing this argument, we assume without deciding
that a right of access conferred by RSA 231:43 may be extinguished by adverse
possession.

       “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.” O’Hearne v. McClammer, 163 N.H. 430, 435 (2012) (quotation
omitted). The adverse possessor must prove these elements by a balance of
probabilities. Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H.
29, 33 (2007).

       The trial court found that the undisputed facts failed to establish adverse
possession because: (1) the defendants admitted that they did not erect the
wooden barrier that was placed across the disputed road for more than 20
years; (2) the defendants admitted that, although Brad placed vehicles, logs,
and boulders within the boundaries of the disputed road, he did so for fewer
than 20 years; (3) the earliest date on which the defendants posted “No
Trespassing” signs was 1998; (4) although the plaintiffs may have posted “No
Trespassing” signs before 1998, their doing so was not adverse to their own
interests; and (5) Jon’s maintenance since the 1970’s of a “No Trespassing”
sign, which had been posted by a third party, was insufficient, standing alone,
to establish all of the elements of adverse possession.

      As the appealing party, the defendants have the burden of demonstrating
that the trial court committed reversible error when it ruled that the
undisputed facts establish that they did not extinguish the plaintiffs’ right of
access through adverse possession. See Gallo v. Traina, 166 N.H. 737, 740
(2014). They have failed to meet that burden. See id.

      The defendants next argue that the trial court erred when it concluded
that the scope of the plaintiffs’ right to access and use the disputed road is
governed by the “rule of reason.” The defendants assert that the trial court
should not have relied upon the “rule of reason” because “[t]his case does not
involve an express easement,” but rather “simply [involves] a statutory right of
access.”



                                        5
       The defendants’ attempt to distinguish a private right of access conferred
by statute from an easement is not persuasive. A private right of access is an
easement. See Black’s Law Dictionary 622, 1522 (10th ed. 2014) (defining an
easement as “[a]n interest in land owned by another person, consisting in the
right to use or control the land, or an area above or below it, for a specific
limited purpose” and defining a private right-of-way by referring to the
definition of an easement). Moreover, we have previously applied the rule of
reason to determine the scope of an easement that arose “because the
plaintiffs’ land abutted a discontinued public highway.” Cote v. Eldeen, 119
N.H. 491, 493-94 (1979).

     The defendants contend that the court should have relied instead upon
RSA 231:46 (2009), which provides:

          When any class IV, V or VI highway, or any portion thereof, has
      been discontinued, any existing sewer, drain, water pipe or other
      utility easements or any permits or licenses previously established
      pursuant to RSA 231:159-182 shall be presumed to be reserved
      and shall remain in effect as an encumbrance upon the underlying
      land for so long as they remain in active use, unless such
      easements, permits or licenses are expressly included in the vote to
      discontinue the highway, or are subsequently discontinued by vote
      of the city or town.

According to the defendants, “[t]he statute was adopted because without it
there is no preservation of the encumbrance for utilities for the discontinuance
of a town or state road prior to 1992.” The defendants contend that, before
1992 (when the current version of the statute was enacted), when a highway
was discontinued, it was presumed that any utility easements previously
granted were also discontinued. They argue that, since the statute was
enacted, the presumption now is that any utility easements previously granted
are not discontinued unless they are “expressly included in the vote to
discontinue the highway, or are subsequently discontinued by vote of the city
or town.” RSA 231:46; see RSA 230:58-a (2009) (providing that, upon
discontinuance of a public highway, “any existing sewer, drain, water pipe or
other utility easements or any permits or licenses previously established
pursuant to RSA 231:159-182 shall be presumed to be reserved and shall
remain in effect as an encumbrance upon the underlying land for so long as
they remain in active use, unless such easements, permits or licenses are
expressly included in the notice of discontinuance, or are subsequently
discontinued by the commissioner of transportation”); RSA 231:159-:182 (2009
& Supp. 2016) (concerning permits and licenses issued by municipal or state
authorities to install utilities in a public highway).




                                        6
       The defendants’ reliance upon RSA 231:46 is misplaced. The utility
easements to which the statute refers are those expressly granted by
governmental entity. See RSA 231:46; Laws 1981, 87:1 (setting forth version of
RSA 231:46 before it was amended in 1992). The statute does not refer to the
right of a private landowner to install utilities in a discontinued road as an
incident of the landowner’s statutory right to use the road to access his or her
property. See RSA 231:46; Laws 1981, 87:1.

      We have reviewed the defendants’ remaining arguments and conclude
that they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321,
322 (1993).

                                                 Affirmed.


      HICKS, LYNN, BASSETT, and HANTZ MARCONI, JJ., concurred.




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