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                   THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2016-0251


         CAROLYN J. CARLSON, TRUSTEE OF THE CAROLYN J. CARLSON
                              LIVING TRUST

                                         v.

         LATVIAN LUTHERAN EXILE CHURCH OF BOSTON AND VICINITY
                             PATRONS, INC.

                              Argued: April 11, 2017
                        Opinion Issued: September 21, 2017

         Tarbell & Brodich, P.A., of Concord (David E. LeFevre on the brief and
orally), for plaintiff Carolyn J. Carlson, Trustee of the Carolyn J. Carlson Living
Trust.


         Orr & Reno, P.A., of Concord (Lisa Snow Wade on the brief and orally),
for the defendant.

       LYNN, J. The defendant, Latvian Lutheran Exile Church of Boston and
Vicinity Patrons, Inc. (Patrons), appeals an order of the Superior Court
(Colburn, J.) declaring that it does not have an easement to use a private road
to access Lake Massasecum. Plaintiff Carolyn J. Carlson, Trustee of the
Carolyn J. Carlson Living Trust (Carlson), cross-appeals the trial court’s denial
of Carlson’s petition to quiet title. Because we find that Carlson lacked
standing to pursue both her actions, we affirm the trial court’s ruling that she
lacked standing on her petition to quiet title, vacate the trial court’s grant of
declaratory relief, and remand.

                                         I

      The relevant facts are as follows. One of the plaintiffs in the underlying
lawsuit, Shirley Kingsbury, owned property in Bradford that borders both Lake
Massasecum and Davis Road, which is a public road. A private driveway runs
across the property from Lake Massasecum to Davis Road. Carlson also owns
property on Lake Massasecum, and her deed to that property includes an
easement to use the driveway to access her property.

      The present dispute began in August 2012 when Patrons, after
consulting with counsel, told Carlson and Kingsbury that it had a right to use
the driveway to access the lake. In November 2012, after Carlson and the
other lakefront tract owners had left for the season, Patrons proceeded to
widen, place crushed gravel upon, and cut back branches alongside the
driveway. Thereafter, over the next year, a number of disputes occurred
between the parties over whether Patrons had a right to use the driveway to
access the lake.

       In 2014, Carlson and Kingsbury petitioned the trial court to quiet title to
the driveway. They also sought a declaratory judgment that Patrons had no
deeded right to use the driveway or, alternatively, that Patrons lost its deeded
right to use the driveway through ouster. Patrons counterclaimed, seeking a
declaratory judgment that it: (1) owns a valid deeded easement over the
driveway; (2) has prescriptive rights over the driveway; and (3) has a right to
use the driveway because the various deeds at issue contain equitable
servitudes in its favor. Each party also requested permanent injunctive relief.

      The trial court held a bench trial over three days in July 2015, at which
point the trial was suspended pending further hearing. Before the trial could
resume, Kingsbury sold her lot to Lois and Fred Schweizer and withdrew from
the case with the assent of both Carlson and Patrons. After the Schweizers
were notified of the pending action, they informed counsel for both parties that
“they did not want to participate in the litigation.” The deed from Kingsbury to
the Schweizers stated that the lot was being conveyed:

      . . . SUBJECT TO the case of Carolyn J. Carlson, Trustee of the
      Carolyn J. Carlson Living Trust et al v. Latvian Lutheran Exile
      Church of Boston and Vicinity Patrons, Inc. . . . now pending and
      docketed in the Merrimack County Superior Court as case number
      217-2014-CV-00044. The Sellers herein make no warranties or a



                                        2
      representation concerning said action and the Buyer takes subject
      to same.

Neither Carlson nor Patrons added the Schweizers as parties to the case.

      The trial resumed on December 8, 2015. After Carlson rested, Patrons
moved for a directed verdict on Carlson’s petition to quiet title, arguing that she
lacked standing. The trial court denied Patrons’ motion, but stated that it
would review the issue at the close of the trial. The trial continued for another
two days.

       Thereafter, Patrons renewed its argument that Carlson lacked standing
with respect to her petition to quiet title and argued that Carlson also lacked
standing to pursue a declaratory judgment. The trial court issued an order
ruling that Carlson lacked standing on her petition to quiet title, but had
standing to pursue her claim for declaratory relief. As to the latter claim, the
trial court’s order ruled on the merits that Patrons had no right to use the
driveway. This appeal and cross-appeal followed.

      On appeal, Patrons challenges the trial court’s rulings that: (1) Carlson
had standing to challenge Patrons’ use of the driveway; (2) Patrons did not have
a deeded right of way over the driveway; and (3) Patrons had no right to use the
driveway based upon an equitable servitude in Carlson’s chain of title. In the
cross-appeal, Carlson challenges the trial court’s ruling that she lacked
standing to pursue her quiet title action against Patrons.

                                        II

      Patrons’ first argument is that Carlson lacked standing to seek
declaratory relief regarding Patrons’ use of the driveway. Patrons argues that
an easement holder, such as Carlson, has standing to challenge an alleged
trespass only if the trespass interferes with the easement holder’s rights.
Thus, Patrons contends that, because the trial court found that Patrons’ use of
the driveway had not interfered with Carlson’s use of the driveway, her
easement rights had not been impaired, and, therefore, she lacked standing to
seek a declaratory judgment.

       Conversely, Carlson argues that, regardless of any interference by
Patrons with her use of the driveway, she had standing based on three
alternative grounds: (1) pursuant to RSA 491:22 (Supp. 2016); (2) based upon
her status as an easement holder; and (3) based upon the procedural posture
of the case.

      Carlson first contends that she has standing pursuant to RSA 491:22.
To resolve this issue, we must engage in statutory interpretation. “Accordingly,
our standard of review is de novo.” Cady v. Town of Deerfield, 169 N.H. 575,


                                        3
577 (2017) (quotation omitted). “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. (quotation omitted). “We first examine the
language of the statute and ascribe the plain and ordinary meanings to the
words used.” Id. (quotation omitted). “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. (quotation
omitted).

       RSA 491:22, I, provides, in relevant part: “Any person claiming a present
legal or equitable right or title may maintain a petition against any person
claiming adversely to such right or title to determine the question as between
the parties, and the court’s judgment or decree thereon shall be conclusive.”
To establish standing to bring a declaratory judgment proceeding under RSA
491:22, I, a party must show that some right of the party has been impaired or
prejudiced. See Duncan v. State, 166 N.H. 630, 645 (2014). “To meet this
requirement, a party seeking declaratory relief must show that the facts are
sufficiently complete, mature, proximate and ripe to place the party in gear
with the party’s adversary, and thus to warrant the grant of judicial relief.” Id.
(quotation and brackets omitted). “The claims raised must be definite and
concrete touching the legal relation of parties having adverse interests, and
must not be based upon a hypothetical set of facts.” Id. (quotation omitted).

      Here, Carlson has a right to use the driveway to access her property and
Lake Massasecum. Patrons also claims a right to use the same driveway to
access the lake. Significantly, however, neither Carlson nor Patrons claims to
have an exclusive right to use the driveway. Thus, the parties’ claimed rights
to use the driveway are not inherently adverse; both parties can hold and
exercise a right to use the driveway without interfering with the other’s
respective right. In this case, Carlson testified that Patrons has not interfered
with her right to use the driveway. Because Patrons’ claim of a right to use the
driveway and its exercise of that right are not interfering with Carlson’s
exercise of her right to use the driveway, Patrons’ interest is not adverse to
Carlson’s interest. Therefore, because Patrons is not “claiming adversely” to
Carlson’s right, she lacks standing to maintain her petition for declaratory
judgment.

      Carlson argues that she has standing to bring a declaratory judgment
action under this statute without showing that Patrons interfered with her
easement rights because the statute permits an action to be brought before any
actual invasion of rights has occurred. Carlson is correct that “[t]he
distinguishing characteristic of the [declaratory] action is that it can be brought
before an actual invasion of rights has occurred.” Portsmouth Hosp. v.
Indemnity Ins. Co., 109 N.H. 53, 55 (1968). Thus, a “[c]laim of legal or
equitable right on the one hand and its denial on behalf of an adverse interest
constitute a cause for proceeding for a declaratory judgment.” Id. at 56


                                        4
(quotation omitted). However, the ability to obtain a declaratory judgment
before an invasion of rights has occurred does not obviate the standing
requirement that the controversy involve adverse interests that are not based
upon hypothetical facts. See Duncan, 166 N.H. at 645.

      Here, Patrons’ claimed right is not inherently adverse to Carlson’s right
to use the driveway. Furthermore, not only was there no evidence that Patrons’
use of the driveway interfered with Carlson’s use of the driveway, but there was
also no evidence that Patrons is likely to overburden or otherwise interfere with
Carlson’s right sometime in the future. Therefore, Carlson lacks standing to
bring a declaratory judgment action for interference with her easement rights
not because no actual invasion of those rights has yet occurred, but because
the asserted invasion of rights that she seeks to prevent is purely speculative.
See Avery v. N.H. Dep’t of Educ., 162 N.H. 604, 608 (2011) (A declaratory
judgment action “cannot be based on a hypothetical set of facts.” (quotation
omitted)); cf. Prasco, LLC v. Medicis Pharmaceutical Corp., 537 F.3d 1329,
1339-42 (Fed. Cir. 2008) (holding that a party lacked standing under the
Federal Constitution to maintain a declaratory judgment action based upon a
“purely subjective or speculative fear of future harm”).

       Carlson next argues that she had standing based upon her status as an
easement holder to bring a declaratory judgment action to stop Patrons’
trespass across the easement. Because an easement is a non-possessory
interest in land, see 4 Richard R. Powell, Powell on Real Property § 34.01[1], at
34-5 (Michael Allen Wolf ed. 2017), easement owners cannot bring actions that
are traditionally established to protect possession, such as trespass and
ejectment. See Low v. Streeter, 66 N.H. 36, 38 (1889) (“A grant of a right of way
over land does not convey the soil, or any corporeal interest in it, and it
necessarily follows that such an owner cannot prevent even a trespasser from
using the land, if his use does not impede the exercise of the right of
passage.”); see also Roundy’s Inc. v. N.L.R.B., 674 F.3d 638, 652-55 (7th Cir.
2012) (ruling that because a non-exclusive easement holder does not hold a
possessory interest in the underlying fee, the easement holder cannot enjoin a
trespasser from using the property absent a showing that the trespasser’s use
interferes with the easement holder’s use); Attorney General v. Dime Sav.
Bank, 596 N.E.2d 1013, 1016 (Mass. 1992) (“It is well settled that an action of
trespass, being a possessory action, cannot be maintained, unless the plaintiff
had the actual or constructive possession of the property trespassed upon at
the time of the trespass.” (quotation and brackets omitted)); Scampini v. Rizzi,
172 A. 619, 622 (Vt. 1934) (holding that an action for ejectment is unavailable
to the owner of an easement that does not carry the right of exclusive
possession). However, if the easement owner can demonstrate that the
trespasser is interfering with the easement owner’s use of the easement, the
easement owner generally can maintain an action to enjoin the trespasser from
further interference. See, e.g., Catania v. Vanacore, 70 A.2d 136, 137 (Conn.
1949) (The act of a person unlawfully going upon land does not constitute a


                                       5
trespass against the owner of an easement to use that land unless that act
disturbs or obstructs the easement owner’s use of the easement.).

       Some courts have held that easement holders have standing to prevent a
trespasser from using the easement even without a showing that the trespasser
interfered with the easement holder’s use of the easement. See, e.g., Kao v.
Haldeman, 728 A.2d 345, 348-49 (Pa. 1999); Shore v. Friedman, 16 A.2d 727,
730-31 (Pa. Super. Ct. 1940). However, we decline to follow this minority view
because it conflicts with our standing jurisprudence. Cf. Lake v. Sullivan, 145
N.H. 713, 717 (2001) (affirming the trial court’s ruling that the plaintiff “lacked
standing to bring his common law claim of trespass because he failed to offer
proof that his possessory interest had been disturbed” (emphasis added)).
Consequently, we conclude that the holder of a non-exclusive easement cannot
maintain an action against a trespasser without alleging actual or likely
interference with the easement holder’s use and enjoyment of its non-
possessory rights.

       Carlson next asserts that she has standing based upon the procedural
posture of the case. In particular, Carlson argues that the following facts
collectively give rise to standing: (1) at the outset of this litigation, Kingsbury,
then the owner of the fee to the driveway, was a party to the case; (2) after
Kingsbury sold her property to the Schweizers, both parties were given the
opportunity to add the Schweizers as parties; (3) both parties chose not to add
the Schweizers as parties; (4) the Schweizers were notified of the litigation and
affirmatively declined to participate; (5) the Schweizers took the property
subject to the pending litigation; and (6) both parties proceeded with the
remainder of the trial. Carlson argues that this factual situation is similar to
the situation in Mansur v. Muskopf, 159 N.H. 216 (2009), in which we rejected
an argument that an easement holder lacked standing to pursue a claim of
trespass. See Mansur, 159 N.H. at 226-27. We disagree.

       Our decision in Mansur is readily distinguishable from the present case.
Notably, in Mansur, we concluded, based upon the record, that “the issue of
whether the respondents’ actions in building a new house interfered with the
petitioners’ deeded easement rights was properly before the trial court.” Id. at
226 (emphasis added). Thus, contrary to Carlson’s assertion, Mansur provides
no authority for the view that an easement holder can maintain a declaratory
judgment action against a trespasser in the absence of interference.
Accordingly, because none of the factual circumstances that Carlson relies
upon establish either adversity or interference, she lacks standing to pursue
her declaratory judgment action.

       Therefore, for the foregoing reasons, we vacate the trial court’s grant of a
declaratory judgment to Carlson and remand with instructions to dismiss the
petition for lack of subject matter jurisdiction. See Duncan, 166 N.H. at 640



                                         6
(holding that the lack of standing deprives a court of subject matter jurisdiction
to adjudicate a controversy).

                                          III

      In her cross-appeal, Carlson contends that the trial court erred in
denying her petition to quiet title. In its order, the trial court ruled that the
Schweizers were necessary parties to Carlson’s quiet title action because they
owned the fee to the driveway. Carlson argues that this ruling is erroneous
because: (1) the Schweizers were not necessary parties under RSA 498:5-a
(2010) for Carlson’s quiet title action; and (2) even if the Schweizers were
necessary parties, they were bound by the trial court’s decision because they
had actual notice of the litigation, affirmatively elected not to participate, and
acquired the property subject to the pending litigation. However, we need not
address her argument because we find that Carlson lacked standing to pursue
her quiet title action. See Duncan, 166 N.H. at 640 (“[B]ecause standing is a
question of subject matter jurisdiction, we may raise the issue of a party’s
standing sua sponte.”).

      The quiet title statute provides, in relevant part:

      An action may be brought in the superior court by any person
      claiming . . . any interest in . . . real or personal property, or both,
      against any person who may claim . . . to have any interest in the
      same . . . adverse to the plaintiff . . . , whether or not the plaintiff is
      entitled to the immediate or exclusive possession of such property,
      for the purpose of determining such adverse . . . claim, and to clear
      up all doubts and disputes and to quiet and settle the title to the
      same . . . .

RSA 498:5-a (emphasis added). It is clear from the language of RSA 498:5-a
that a person may only bring a quiet title action against another person who
may claim to have an adverse interest. Id. As discussed above, Carlson’s
interest in the driveway is not adverse to Patrons’ claimed interest in the
driveway. Moreover, Carlson does not assert that Patrons (or anyone else)
contests Carlson’s own easement rights to use the driveway. Accordingly,
because Carlson lacks standing to maintain a quiet title action against Patrons,
we affirm the trial court’s dismissal of her quiet title action.

                                                     Affirmed in part; vacated
                                                     in part; and remanded.

      DALIANIS, C.J., and HICKS, J., concurred.




                                          7
