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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2017-0151


                           DWIGHT K. STOWELL, JR.

                                         v.

                            JEFFREY ANDREWS & a.

                           Argued: February 7, 2018
                      Opinion Issued: September 14, 2018

      Cook, Little, Rosenblatt & Manson, pllc, of Manchester (Kathleen M.
Mahan on the brief), and Sullivan & Worcester LLP, of Boston, Massachusetts
(Nicholas M. O’Donnell on the brief and orally), for the plaintiff.


      Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the
brief and orally), for the defendants.

      BASSETT, J. This is an appeal and cross-appeal of rulings made by the
Superior Court (McNamara, J.) regarding the claims of the defendants, direct or
beneficial owners of real property on Great Island, to deeded or prescriptive
easements to traverse a footpath (the Circle Trail) over the Great Island lot
owned by the plaintiff, Dwight K. Stowell, Jr. Great Island is on Lake Sunapee
and lies partially in Newbury and partially in Sunapee. Stowell’s lot is
primarily in Newbury, although a small portion of it is in Sunapee. Some of the
defendants have Great Island lots in Newbury (the Newbury defendants), while
others have Great Island lots in Sunapee (the Sunapee defendants). Because
Great Island has no public roads, footpaths are used to get from one place to
another on the island. The Circle Trail goes around the perimeter of the island.

       In ruling on pre-trial cross-motions for summary judgment, the trial
court decided that the Newbury defendants have deeded easements to use the
Circle Trail as it crosses the Newbury portion of Stowell’s lot. The court
rejected the assertion that those easements were extinguished because the
purpose for which they were created — to provide access to steamboats —
became impossible to achieve once the steamboat wharves were destroyed in
the hurricane of 1938. Stowell challenges that ruling in his cross-appeal. We
affirm the trial court’s determination.

      Following a bench trial that included a view, the trial court ruled that: (1)
only those Newbury defendants who testified at trial have prescriptive
easements to use the Circle Trail over the Sunapee portion of Stowell’s lot; (2)
only the single Sunapee defendant who testified at trial has a prescriptive
easement to use the Circle Trail over both the Newbury and Sunapee portions
of Stowell’s lot; and (3) Stowell has the unilateral right to relocate the Newbury
defendants’ deeded easements from the front to the back of his property. The
defendants challenge those rulings in their appeal. We vacate the trial court’s
rulings regarding the defendants’ prescriptive easements and Stowell’s right to
relocate the deeded easements, and we remand for further proceedings
consistent with this opinion.

I. Stowell’s Cross-Appeal of the Trial Court’s Summary Judgment Ruling

       We first address Stowell’s challenge to the trial court’s summary
judgment ruling that the deeded easements of the Newbury defendants were
not extinguished when the steamboat wharves were destroyed. In reviewing
the 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. Granite
State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 282 (2013). If our review
of that evidence discloses no genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law, then we will affirm the grant of
summary judgment. Id. We review the trial court’s application of the law to
the facts de novo. Cloutier v. State, 163 N.H. 445, 451 (2012).

      A. Relevant Facts

      The trial court recited the following facts in its summary judgment order.
In 1890, the original grantors owned the portion of Great Island located in
Newbury. According to the 1890 “Plan of Cottage Lots on Great Island in Lake


                                         2
Sunapee, N.H.,” the original grantors subdivided the Newbury portion of the
island into 45 lots. (Quotation omitted.) The plan did not identify any
footpaths or wharves.

       In the late 1800s and early 1900s, people used steamboats to travel to
and from Great Island. Beginning in October 1892, the original grantors
conveyed lots along the Newbury shore to various individuals through deeds.
The first such deed, conveying Lot 16, contained the following easement clause:

      Hereby conveying to said grantee and his assigns the right of a foot
      path across any of the lots numbered on the before mentioned
      “plan” to reach the wharf or wharves that may be established on
      the shore of said Island, and reserving to ourselves and assigns the
      right of a similar foot path through or over the within named lot
      No. 16.

The first steamboat wharf on the Newbury side of the island, known as Auburn
Landing, was built sometime after March 1893. The second steamboat wharf
on that side of the island, known as Melrose Landing, was built sometime after
October 1902.

       Between 1893 and 1902, the original grantors conveyed 11 additional
shoreline lots; after the Auburn and Melrose Landings were built, the grantors
conveyed the remaining shoreline lots. Most of the deeds thus conveyed
contained an easement clause. Although those clauses differ slightly, their
substance is substantially the same: they convey to the grantee the right to
cross all or some of the lots shown on the plan, by footpath, to reach the
steamboat wharves. The lots to be crossed are variously referred to as the “lots
in this range,” “any of the lots,” “the other lots,” “all the lots north or south of
this lot,” “all the lots,” “all the adjoining lots,” and “all the lots on either side of
these lots.” (Quotations omitted.)

       Steamboat service on Lake Sunapee ended by the 1930s, and the 1938
hurricane destroyed the steamboat wharves. The wharves were never rebuilt.
After the wharves were destroyed and before electricity came to the island in
the mid-1900s, staples such as bread, milk, and ice were delivered to island
residents via boat; the delivery person would use the island’s footpaths. The
properties on Great Island now have individual docks for boats, which are used
to travel to and from the island. The footpaths have been used to: travel to
island gatherings; attend island meetings; visit neighbors; conduct island
business; and access cottages in the case of an emergency. They also have
been used for exercise and/or pleasure.

     Before trial, motions were filed disputing whether the deeded easements
remained viable after the steamboat wharves were destroyed. The trial court,



                                           3
relying upon the plain language of the deeds and agreeing with the defendants,
ruled that the destruction of the wharves did not extinguish the easements.

      B. Analysis

      In his cross-appeal, Stowell argues that the Newbury defendants’ deeds
“established a limited right to cross certain lots around the perimeter of Great
Island . . . for the unique purpose of reaching the steamboat wharves . . . to
gain access to and from the island by steamboat.” Thus, he contends, the
“impossibility of purpose” doctrine extinguished the easements because “the
purpose for the easement grant . . . is no longer possible.” See Restatement
(Third) of Property: Servitudes § 7.10, at 394 (2000) (setting forth the
impossibility of purpose doctrine); see also Boissy v. Chevion, 162 N.H. 388,
393 (2011) (adopting the doctrine).

      Under the impossibility of purpose doctrine, “[w]hen a change has taken
place since the creation of a servitude that makes it impossible as a practical
matter to accomplish the purpose for which the servitude was created,” and
modification of the servitude “is not practicable, or would not be effective, a
court may terminate the servitude.” Restatement (Third) of Property:
Servitudes, supra § 7.10(1), at 394. The impossibility of purpose doctrine is
“designed to eliminate meaningless burdens on land and is based on the notion
that parties that create an easement for a specific purpose intend the servitude
to expire upon cessation of that purpose.” Boissy, 162 N.H. at 394 (quotation
omitted).

       Inquiry in an impossibility of purpose case “begins with determining the
particular purpose of the easement in question.” Id. (quotation omitted). “A
provision in the easement instrument often indicates the parties’ intent in this
regard. When an easement purpose provision is ambiguous, courts examine
the surrounding circumstances to ascertain the parties’ intent and tend to
favor the grantee with a broad interpretation.” Jon W. Bruce & James W. Ely,
Jr., The Law of Easements and Licenses in Land § 10:8, at 10-18 to 10-19
(2016) (footnotes omitted). “Next, one must decide whether the contemplated
purpose still exists. If not, the easement is considered to have expired.”
Boissy, 162 N.H. at 394 (quotation omitted).

      Stowell argues that the trial court incorrectly determined that the
Newbury defendants’ deeded easements were not granted for the limited
purpose of using the footpaths to reach the steamboat wharves so as to access
the steamboats. He contends that the trial court’s interpretation conflicts with
the plain meaning of the easement clauses. Alternatively, he asserts that the
easement clauses were ambiguous and that the trial court erred by failing to
consider extrinsic evidence, which he contends “proved beyond dispute that the
Easement Clauses were for steamship travel.”



                                        4
       “The proper interpretation of a deed is a question of law for this court.”
Lynch v. Town of Pelham, 167 N.H. 14, 20 (2014) (quotation omitted). We
review the trial court’s interpretation of a deed de novo. Id. “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 that time.” Id.
(quotation omitted). “We base our judgment on this question of law upon the
trial court’s findings of fact.” Id. “If the language of the deed is clear and
unambiguous, we will interpret the intended meaning from the deed itself
without resort to extrinsic evidence.” Id. “If, however, the language of the deed
is ambiguous, extrinsic evidence of the parties’ intentions and the
circumstances surrounding the conveyance may be used to clarify its terms.”
Id.

         In effect, Stowell argues that the language of the easement clauses,
granting a right to cross, by footpath, all or some of the lots on the Newbury
side of Great Island to reach the steamboat wharves, are “words of limitation”
rather than “words of description.” Barrett v. Kunz, 604 A.2d 1278, 1280 (Vt.
1992). We agree with the trial court that the easement clauses, by their plain
language, were not intended to limit the grantees’ use of the footpaths for a
particular purpose. See Crabbe v. Veve Associates, 549 A.2d 1045, 1048 (Vt.
1988) (opining that “the rule regarding extinguishment by cessation of purpose
should be applied only where easements are qualified by express limitations”);
see also Lawley v. Abbott, 642 So. 2d 707, 708 (Ala. 1994) (holding that
because the deed “unambiguously granted . . . an easement over the property
. . . , without condition or reference to a specific purpose,” the impossibility of
purpose doctrine did not apply); Brock v. B & M Moster Farms, Inc., 481
N.E.2d 1106, 1107, 1108 (Ind. Ct. App. 1985) (finding that grantor intended
easement for “a right-of-way for wagon, horses and footpassers” was “a general
right of ingress and egress to his property, with no limitation to traffic used for
agricultural purposes” (quotation omitted)), superseded on other grounds by
statute as stated in Consolidated Rail Corp. v. Lewellen, 682 N.E.2d 779, 783
(Ind.), transfer granted and opinion vacated, 683 N.E.2d 595 (Ind. 1997).

       As the trial court correctly observed, the easements do not require
individuals to use a footpath only if they also intend to board a steamboat.
Moreover, as the trial court also observed, “[t]he easement language does not
limit what may be done once an individual reaches the location of a wharf via
footpath or what footpath route must be used to get to a wharf.” Further, given
the lack of public roads on Great Island, and the fact that the footpaths are
used to get from one place to another, we conclude that the easements were
intended to convey to the grantees a right to use the footpaths for multiple
purposes. The easement language, thus, merely describes a location, rather
than limits the grantees’ use of the footpaths to a particular purpose. See
Boissy, 162 N.H. at 398 (petitioners conceded that, in a deed granting a right-
of-way “to the ice pond,” the reference to the ice pond “was a description of the
location of the right-of-way and was not a statement regarding the easement’s


                                         5
purpose” (quotation omitted)). Because the easements are for transit to the
locations of the former steamboat wharves, rather than specifically to access
the steamboats, they were not extinguished once the steamboat wharves
themselves were destroyed. Any issues raised in Stowell’s cross-appeal that he
did not brief are deemed waived. See In re Estate of King, 149 N.H. 226, 230
(2003).

II. The Defendants’ Appeal

       We next address the defendants’ appeal of the trial court’s rulings
following the bench trial. In reviewing a trial court’s decision rendered after a
trial on the merits, we uphold its factual findings and rulings unless they lack
evidentiary support or are legally erroneous. O’Malley v. Little, 170 N.H. 272,
275 (2017). We do not decide whether we would have ruled differently than the
trial court, but rather, whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. Thus, we
defer to the trial court’s judgment on such issues as resolving conflicts in the
testimony, measuring the credibility of witnesses, and determining the weight
to be given evidence. Id. Nevertheless, we review the trial court’s application of
the law to the facts de novo. Id.

       On appeal, the defendants argue that the trial court erred when it: (1)
decided that only those defendants who testified at trial had established that
they had prescriptive easements; and (2) ruled that Stowell has the unilateral
right to relocate the Newbury defendants’ deeded easements.

      A. The Trial Court’s Prescriptive Easement Determination

       A party claiming to have a prescriptive easement must prove by a
balance of probabilities twenty years’ adverse, continuous, uninterrupted use
of the land claimed in such a manner as to give notice to the record owner that
an adverse claim was being made to it. Jesurum v. WBTSCC Ltd. P’ship, 169
N.H. 469, 476 (2016). “The nature of the use must have been such as to show
that the owner knew or ought to have known that the right was being
exercised, not in reliance upon the owner’s toleration or permission, but
without regard to the owner’s consent.” Id. at 477 (quotation omitted). Use is
“adverse” when it is “trespassory,” meaning that “it consists of a wrong which
the fee holder can prevent or for which he can obtain damages by means of
legal action.” Id. (quotations omitted).

       The trial court determined that those Newbury defendants who testified
at trial have prescriptive easements to use the Circle Trail over the Sunapee
portion of Stowell’s lot, and that the sole Sunapee defendant who testified at
trial has a prescriptive easement to use the Circle Trail over both the Newbury
and Sunapee portions of Stowell’s lot. The court ruled that, because
“prescriptive rights are personal . . . , those [defendants] who did not testify


                                        6
regarding their own personal use of the footpaths have failed to establish
prescriptive easements.” The court explained, “Although there was some
testimony at trial that ‘everyone’ used the footpaths, these vague statements
failed to specify when, for how long, or what portions of the footpaths were
used by ‘everyone.’”

       The defendants argue that, by stating that “prescriptive rights are
personal” and deciding that only testifying defendants satisfied their burden of
proof, the trial court incorrectly determined that the easements at issue are “in
gross.” They contend that, in fact, the easements are “appurtenant” to the
testifying defendants’ lots. Stowell counters that the easements are not
appurtenant easements because they are capable “of existence separate and
apart from the dominant estate.” Tanguay v. Biathrow, 156 N.H. 313, 315
(2007) (quotation omitted). He argues that the defendants’ “prescriptive rights
bear no relationship at all to the putative dominant estate[s]” in that “[n]ot a
single [defendant] would be constrained in their ability to reach their own
property without their prescriptive easements.”

       “The most important classification of easements differentiates between
easements appurtenant and easements in gross.” Bruce & Ely, supra § 2:1, at
2-2. Generally speaking, “‘[a]ppurtenant’ means that the rights or obligations
of a servitude are tied to ownership or occupancy of a particular unit or parcel
of land.” Shaff v. Leyland, 154 N.H. 495, 497 (2006) (quoting Restatement
(Third) of Property: Servitudes, supra § 1.5(1), at 31). “‘In gross’ means that the
benefit or burden of a servitude is not tied to ownership or occupancy of a
particular unit or parcel of land.” Id. at 498 (quoting Restatement (Third) of
Property: Servitudes, supra § 1.5(2), at 31).

      An appurtenant easement creates two distinct estates: the dominant
estate, which is the land that benefits from the use of the easement; and the
servient estate, which is the land burdened by the easement. Arcidi v. Town of
Rye, 150 N.H. 694, 698 (2004). “The significance of the ‘appurtenant’ label is
that ownership of the easement appertains, or is linked, to the dominant
estate.” Jacqueline P. Hand & James Charles Smith, Neighboring Property
Owners § 7.07, at 158 (1988). “The easement is owned not by the grantee as
an individual, but by the grantee qua owner of the dominant estate.” Id. at
158-59. “Legally, the easement is one of the rights and privileges of owning the
particular parcel of real estate identified as dominant.” Id. at 159 (footnote
omitted). Thus, “[a]n appurtenant easement is incapable of existence separate
and apart from the dominant estate.” Arcidi, 150 N.H. at 698. “The benefit of
an appurtenant easement can be used only in conjunction with ownership or
occupancy of a particular parcel of land.” Id. (quotation omitted).

      By contrast, “an easement in gross is owned by an individual person,
with ownership of the easement not linked or tied to the ownership of any other
interest in property.” Hand & Smith, supra § 7.08, at 159. For an easement in


                                        7
gross, there is a servient estate, but, “because the easement benefits its holder
whether or not the holder owns or possesses other land,” there is no dominant
estate or benefited land. Arcidi, 150 N.H. at 698 (quotation omitted); see Hand
& Smith, supra § 7.08, at 159. An easement in gross is “personal in the sense
that it [is] not an incident of possession of a dominant tenement.” Bruce & Ely,
supra § 2:2, at 2-5 (quotation, ellipsis, and footnote omitted). An easement in
gross “belongs to its owner independently of his ownership or possession of
other land” and “vests only in the person to whom it is granted.” Burcky v.
Knowles, 120 N.H. 244, 247 (1980) (emphasis added).

      “Whether an easement by prescription is appurtenant or in gross is
determined by the use of the servient estate.” Bruce & Ely, supra § 2:3, at 2-
15. “If the prescriptive use was for the benefit of the possessor of a particular
parcel, the easement is appurtenant.” Id. (footnote omitted). “Otherwise, it is
in gross.” Id. To determine whether a prescriptive easement is appurtenant or
in gross, courts may examine “whether the easement rights logically have ‘free
standing’ value,” meaning whether the rights are of value to anyone other than
the owner of a particular lot. Hand & Smith, supra § 7.07, at 175 (Supp.
2017); see Ammer v. Arizona Water Co., 818 P.2d 190, 194 (Ariz. Ct. App.
1991) (explaining that courts “consider whether the easement would have any
value apart from its use in connection with the land in question”). They may
also examine “whether the adverse use took place in connection with and for
the benefit of a particular parcel of land.” Ammer, 818 P.2d at 194.

       Whether the prescriptive easements at issue are “appurtenant” or “in
gross” may be dispositive in this case. See Burcky, 120 N.H. at 247 (easement
in gross “vests only in the person to whom it is granted” (emphasis added)).
However, the trial court, in its narrative order, did not use the words
“appurtenant” or “in gross.” On the one hand, the court agreed with Stowell
that “prescriptive rights are personal.” This ruling could be consistent with a
determination that the easements are in gross. See id. On the other hand,
quoting case law, the court stated that “prescriptive easements, by their
nature, can be utilized only on a tract-by-tract basis.” Opinion of the Justices
(Public Use of Coastal Beaches), 139 N.H. 82, 92 (1994) (quotation omitted).
This ruling could be consistent with a determination that the easements are
appurtenant to each lot. In light of these conflicting statements, we vacate the
trial court’s determination that the non-testifying defendants failed to establish
that they have prescriptive easements and remand for the trial court to decide,
in the first instance, whether the prescriptive easements are appurtenant or in
gross. Moreover, on remand, in the event that the trial court determines that
the easements are appurtenant, “[i]t is not necessary that every owner of
property . . . testify as to his use.” Shellow v. Hagen, 101 N.W.2d 694, 699
(Wis. 1960).




                                        8
      B. The Trial Court’s Determination that Stowell Had the Right to
      Unilaterally Relocate the Deeded Easements

       The trial court ruled that Stowell had the right to unilaterally relocate the
Newbury defendants’ deeded easements to use the Circle Trail over the
Newbury portion of Stowell’s property. The court concluded that, because their
deeds “are ambiguous as to the location of the footpaths” and “the footpaths
have changed location over time,” the Newbury defendants are entitled only to
a reasonably convenient and suitable way across Stowell’s property, rather
than a right to cross his property at a specific location. See Barton’s Motel,
Inc. v. Saymore Trophy Co., 113 N.H. 333, 335 (1973); see also Seward v.
Loranger, 130 N.H. 570, 577 (1988). The court determined that Stowell was
entitled to relocate the trail because the purpose of the Circle Trail “is not for
aesthetics, but rather for access,” and there was no evidence that the relocated
path “is not adequate for transit from one point to the other.”

       On appeal, the Newbury defendants agree that because “their deeds do
not describe a specific location for their footpath[,] . . . they are entitled only to
‘a reasonably convenient and suitable way.’” However, they maintain that, at
some point, it was agreed that the Circle Trail would pass directly in front of
Stowell’s home and that, therefore, Stowell may not now unilaterally relocate
their deeded easements. See Duxbury-Fox v. Shakhnovich, 159 N.H. 275, 282-
83 (2009) (upholding “the trial court’s implicit determination that . . . the
owners of the dominant and servient estates mutually relocated the easement
granted in the original deeds” based, in part, upon evidence that the subject
right-of-way had been used “for over thirty years without issue” (quotation
omitted)); see also Donaghey v. Croteau, 119 N.H. 320, 324 (1979) (observing
that, where the location of a way was “left uncertain by the original deed,” its
continued use at a particular location was evidence of its intended location).

      Stowell argues that he is entitled to relocate the deeded easements
unilaterally pursuant to Section 4.8(3) of the Restatement (Third) of Property:
Servitudes, which he urges us to adopt. Section 4.83 provides:

             Unless expressly denied by the terms of an easement, as
      defined in § 1.2, the owner of the servient estate is entitled to make
      reasonable changes in the location or dimensions of an easement,
      at the servient owner’s expense, to permit normal use or
      development of the servient estate, but only if the changes do not

          (a) significantly lessen the utility of the easement,

         (b) increase the burdens on the owner of the easement in its
      use and enjoyment, or




                                          9
          (c) frustrate the purpose for which the easement was created.

Restatement (Third) of Property: Servitudes, supra § 4.8(3), at 559.

       “Defining the rights of the parties to an expressly deeded easement
requires determining the parties’ intent in light of circumstances at the time
the easement was granted.” Duxbury-Fox, 159 N.H. at 281 (quotation
omitted). When, as in the instant case, “[t]he location and limits of the
reserved way are not specified” in the deed, Gardner v. Webster, 64 N.H. 520,
522 (1888), “a reasonably convenient and suitable way across the servient land
is presumed to be intended,” Barton’s Motel, Inc., 113 N.H. at 335; see Seward,
130 N.H. at 577.

       The location of a “reasonably convenient and suitable way” presents “a
question of fact to be determined by the trial court considering all the
surrounding circumstances,” which “include the location and uses of both
dominant and servient estates and the advantage to be derived by one and the
disadvantage to be suffered by the other owner.” Barton’s Motel, Inc., 113 N.H.
at 335. “The trial court could also properly consider any information gained
from its view of the premises.” Id. Additionally, “where the location of a deeded
right of way is uncertain, it may be clarified by the agreement of subsequent
owners.” Duxbury-Fox, 159 N.H. at 282.

       The trial court found only that, before Stowell relocated it, the Circle Trail
crossed the front of his property. The court made no findings as to how long
the trail crossed the front of Stowell’s property or whether it did so by mutual
agreement. See id. Had the trial court determined that the Circle Trail crossed
the front of Stowell’s property by agreement, then, under New Hampshire
common law, Stowell would not have the unilateral right to relocate it. See id.
Under New Hampshire law, once the location of a deeded easement has been
established, either by the language of the deed or by the subsequent acts of the
parties, neither the owner of the dominant estate nor the owner of the servient
estate may unilaterally relocate it. See Bruce & Ely, supra § 7:13, at 7-32; see
also Duxbury-Fox, 159 N.H. at 282. “The reason for this rule is that treating
the location as variable would incite litigation and depreciate the value and
discourage the improvement of the land upon which the easement is charged.”
Stamatis v. Johnson, 224 P.2d 201, 203 (Ariz. 1950), modified on rehearing,
231 P.2d 956 (Ariz. 1951).

      The general common law rule, that “once the location of an expressly
deeded easement is established, whether by the language of the instrument
creating the easement or by subsequent acts of the parties fixing on the ground
the location of a general grant of a right of way, the site location may not be
changed thereafter by either the owner of the dominant estate or the owner of
the servient estate,” absent consent or a reservation of rights in the instrument
creating the easement, is the rule “[i]n the great majority of jurisdictions.”


                                         10
Davis v. Bruk, 411 A.2d 660, 664 (Me. 1980); see Herren v. Pettengill, 538
S.E.2d 735, 736 (Ga. 2000). We have previously expressed this common law
rule as follows:

      The use which the [dominant estate owner] may make of the way is
      limited by the bounds of reason, but within those bounds it has
      the unlimited right to travel over the land set apart for a way. [The
      dominant estate owner] has no right to insist upon the use of any
      other land of the [servient estate owner] for a way, regardless of
      how necessary such other land may be to it, and regardless of how
      little damage or inconvenience such use of the [servient estate
      owner’s] land might occasion to [the servient estate owner]. No
      more may the [servient estate owner] compel the [dominant estate
      owner] to detour over other land of theirs.

Sakansky v. Wein, 86 N.H. 337, 340 (1933).

      However, “a handful of courts,” AKG Real Estate, LLC v. Kosterman, 717
N.W.2d 835, 846 (Wis. 2006), have adopted Section 4.8(3) of the Restatement
(Third) of Property: Servitudes, as Stowell urges us to do in this case. See
M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1057 (Mass. 2004)
(concluding “that § 4.8(3) of the Restatement is a sensible development in the
law” and adopting it as the law in Massachusetts). But see Kosterman, 717
N.W.2d at 846-47 (specifically rejecting the Restatement view).

      “[P]roponents of the Restatement position argue that judicial intervention
is necessary to rectify the problem of holdouts, who could otherwise single-
handedly impede economic development.” Id. at 847; see Dwyer, 809 N.E.2d at
1057-59. As a comment to the provision explains:

             [The Restatement provision] is designed to permit
      development of the servient estate to the extent it can be
      accomplished without unduly interfering with the legitimate
      interests of the easement holder. It complements the rule that the
      easement holder may increase use of the easement to permit
      normal development of the dominant estate, if the increase does
      not unduly burden the servient estate. This rule is not reciprocal.
      It permits unilateral relocation only by the owner of the servient
      estate; it does not entitle the owner of the easement to relocate the
      easement. The reasons for the rule are that it will increase overall
      utility because it will increase the value of the servient estate
      without diminishing the value of the dominant estate and it will
      encourage the use of easements and lower their price by
      decreasing the risk the easements will unduly restrict future
      development of the servient estate. In addition, permitting the



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      servient owner to change the location under the enumerated
      circumstances provides a fair trade-off for the vulnerability of the
      servient estate to increased use of the easement to accommodate
      changes in technology and development of the dominant estate.

Restatement (Third) of Property: Servitudes, supra § 4.8, comment f, at 563
(citation omitted).

        “Conversely, opponents of the Restatement position contend that the
uncertainty caused by judicial modification of easements does more to hamper
economic development than does current law because the Restatement
discourages investment by rendering property rights uncertain.” Kosterman,
717 N.W.2d at 847; see MacMeekin v. LIHI, 45 P.3d 570, 578 (Wash. Ct. App.
2002) (observing that the Restatement approach has been criticized “on the
ground that it permits undue interference with property rights”). Courts
rejecting the Restatement view have opined that it is “a threat to the certainty
of property rights and real estate transactions, . . . a catalyst for increased
litigation, and . . . a means for purchasers of servient estates to reap a windfall
at the expense of owners of dominant estates.” Kosterman, 717 N.W.2d at 846;
see Alligood v. LaSaracina, 999 A.2d 836, 839 (Conn. App. Ct. 2010) (deciding
that “the attributes of the majority rule, namely, uniformity, stability,
predictability and judicial economy, outweigh any increased flexibility offered
by the Restatement approach”).

      We decline Stowell’s invitation to adopt Section 4.8(3) because to do so
“would mean altering [our] longstanding default rule” precluding unilateral
relocation of an easement, Kosterman, 717 N.W.2d at 846, and would be
inconsistent with the particular importance that New Hampshire places on
private property rights, see Thomas Tool Servs. v. Town of Croydon, 145 N.H.
218, 220 (2000).

       We are unable to discern whether the trial court relied upon Section
4.8(3) when it decided that Stowell had the unilateral right to relocate the
Circle Trail (and the Newbury defendants’ deeded easements). In explaining its
decision, the trial court found only that relocating the trail to the rear of
Stowell’s lot would not frustrate the trail’s purpose. Such a finding is
consistent with, and might well have been based upon, Section 4.8(3). To the
extent that the trial court relied upon Section 4.8(3), we conclude that it erred.
Because we cannot determine whether the trial court would have reached the
same decision without relying upon Section 4.8(3), we vacate its decision
allowing Stowell to unilaterally relocate the deeded easements, and we remand
for further proceedings. See Turner v. Shared Towers VA, LLC, 167 N.H. 196,
204 (2014).




                                        12
      C. Relocation of the Prescriptive Easements

      Finally, to the extent that the defendants assert that the trial court also
erred when it ruled that Stowell had the unilateral right to relocate the
prescriptive easements, we do not share their interpretation of the trial court’s
order. See Edwards v. RAL Auto. Group, 156 N.H. 700, 705 (2008) (explaining
that we interpret a trial court order de novo). In the section of its narrative
order discussing Stowell’s right to relocate the trail, the court discussed only
the Newbury defendants’ deeded easements and did not address the
defendants’ prescriptive easements. Thus, because the trial court does not
appear to have ruled upon the issue, we express no opinion as to whether
Stowell has the unilateral right to relocate the defendants’ prescriptive
easements.

                                                  Affirmed in part; vacated
                                                  in part; and remanded.

      LYNN, C.J., and HICKS, J., concurred.




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