holding that a party failed to demonstrate that a trial court committed reversible error, where the trial court asserted that a "mere casual entry by the record owner for a limited purpose is not necessarily sufficient to destroy adverse possession" (quotation omitted)
How later courts described this case
- holding that a party failed to demonstrate that a trial court committed reversible error, where the trial court asserted that a "mere casual entry by the record owner for a limited purpose is not necessarily sufficient to destroy adverse possession" (quotation omitted)
- holding that the appealing party bears the burden of demonstrating reversible error
- stating that the appealing party has the burden of demonstrating reversible error
- holding that the appealing party has the burden of demonstrating reversible error
Written by the judges who cited it.
The opinion
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
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Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
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page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2013-652
RALPH P. GALLO & a.
v.
SUSAN TRAINA & a.
Argued: June 18, 2014
Opinion Issued: September 12, 2014
Brown and LaPointe, P.A., of Epping (Scott W. LaPointe on the brief and
orally), for the petitioners.
Casassa and Ryan, of Hampton (Daniel R. Hartley on the brief and
orally), for the respondents.
DALIANIS, C.J. The respondents, Susan and Joseph Traina (the
Trainas), appeal an order of the Superior Court (Delker, J.) ruling in favor of
the petitioners, Ralph P. and Ruth L. Gallo (the Gallos), on their petition to
quiet title to land that the Gallos use to access their home on Captain’s Pond in
Salem. We affirm.
The trial court found the following facts after a two-day evidentiary
hearing and a view of the property in question. In 1986, the Gallos purchased
land on Emilio Lane Extension in Salem. They tore down the existing
structures and, in 1987, built their current home. They built a garage in
September 1988.
Since purchasing the property, the Gallos have accessed it by using a
looped driveway that ends on Emilio Lane Extension. They paved the driveway
in May 1989. Before doing so, the Gallos installed a cement retaining wall and
a decorative stone wall, planted a “burning bush” inside the stone wall, and
planted various flowers and other vegetation along one side of the paved
driveway.
In 1997, Susan Traina purchased property on Captain’s Pond. In 2004,
as part of a settlement agreement with her cousin, Ronald Peredna, she
became the owner of a strip of land immediately to the east of the Gallos’
property, which includes a paved area directly in front of the Gallos’ walkway to
their home and garage, a portion of their retaining wall and decorative stone
wall, and the “burning bush.” At some point, Peredna had acquired an
easement to use a strip of land between the Gallos’ property and his own
property. The strip of land is currently owned by Dennis Iannalfo and his wife.
Peredna later conveyed an easement deed to Susan, purporting to convey the
easement to her. The Gallos’ paved driveway and plantings are included on the
Iannalfo strip of land.
The instant lawsuit was prompted by a long-running dispute between the
neighbors that culminated in Susan’s threat to build a fence around her
property to cut off the Gallos’ access to their garage. She also demanded that
the Gallos remove the stone wall and plantings. The Gallos sought a
declaration that they had a prescriptive easement to use their paved driveway
located on the strip of land owned by the Iannalfos and that they had the right,
by adverse possession, to maintain their retaining and decorative stone walls
and plantings on Susan’s land. Susan filed a cross-petition asserting a
superior right to use the Iannalfo strip of land. On the morning of trial, Susan
added her husband as a party. Although she originally purchased the subject
property in her own name, it has since been transferred to her and her
husband as joint tenants.
With regard to the Gallos’ use of the land owned by the Trainas, the trial
court ruled as follows. The court decided that land on which the retaining and
stone walls and the bush sit belongs to the Gallos by adverse possession. The
trial court rejected the Trainas’ assertion that the granite post and fence that
they installed in 2007 on their boundary line, to the south of the Gallos’
retaining wall, and their occasional yard work around the burning bush
interfered with the Gallos’ exclusive use of the property. Specifically, the court
found that “[b]y placing the fence there,” the Trainas “in no way interfered with
the Gallos’ burning bush, retaining wall, or stone wall” and that the fence and
maintenance of the land did not constitute “a co-occuring use of the land.”
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The court explained that “to interrupt the adverse possession, the record
owner must perform some act which constitutes an ouster of the adverse
claimant.” Such conduct, the court observed, “must be such as would put a
reasonably prudent person on notice that he or she actually has been ousted.”
(Quotation omitted.) Accordingly, the court stated, “[a] mere casual entry for a
limited purpose by the record owner is not necessarily sufficient to destroy
adverse possession.” (Quotation omitted.) Based upon the evidence at the
hearing and its view of the property, the court concluded that the Trainas’
actions were insufficient to interrupt the Gallos’ adverse use.
The court also determined that the Gallos have only a prescriptive
easement to use the paved area in front of their driveway and walkway, which
is located on the land in dispute. The court ruled that the easement allowed
the Gallos to access their property over the paved area. The court concluded
that “[c]onsistent with their 20 years of notorious, open, and adverse use of
[the] land, the Gallos may also maintain this paved portion by having it
repaved, refinished, plowed, or other similar actions necessary to maintain the
access in the manner that [they] have been using it since 1989.” Nevertheless,
because the land itself belongs to the Trainas, the court ruled that the Gallos
could not “block the paved area or engage in any other actions that would
restrict the Trainas’ . . . use of their property.”
With regard to the Gallos’ use of the strip of land owned by the Iannalfos,
the court found that “the evidence clearly demonstrates that the Gallos have
used the easement area in an open and notorious manner that is inconsistent
with an easement broader than the paved driveway.” The court observed that
“[t]he Gallos planted trees and other vegetation along the western side of the
driveway 20 years ago at the same time that they paved the dirt path” and that
“[t]hey continue to maintain that area,” including the trees and vegetation.
Based upon the evidence at the hearing and its view of the property, the court
found that “the use of the land immediately to the west of the paved driveway is
inconsistent with any easement access Susan . . . may have obtained.” The
court concluded that “because the Gallos have openly, notoriously, and
adversely used the easement area west of the paved driveway for more than 20
years, their adverse possession of this area, vis-à-vis Susan . . . , has
extinguished any right [she] may have obtained to pass over this area.” The
Trainas unsuccessfully moved for reconsideration of the trial court’s order, and
this appeal followed.
In an action to quiet title, the burden is on each party to prove good title
as against all other parties whose rights may be affected by the court’s decree.
Hersh v. Plonski, 156 N.H. 511, 514 (2007). We will uphold the trial court’s
determination unless it is erroneous as a matter of law or unsupported by the
evidence. Id.
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The Trainas argue that the trial court erred when it determined that the
Gallos owned by adverse possession the land underneath the retaining and
stone walls and the burning bush. They contend that the Gallos’ use of that
property was not exclusive and that they successfully interfered with the
Gallos’ use by, among other things, making “numerous entries onto the land
for landscaping, surveying, and installation of a fence.” The Trainas also argue
that the trial court erred when it found that their easement was extinguished
by the Gallos’ adverse possession of the strip of land owned by the Iannalfos.
As the appealing parties, the Trainas have the burden of demonstrating
reversible error. See Coyle v. Battles, 147 N.H. 98, 100 (2001). Based upon
our review of the trial court’s order, the Trainas’ challenges to it, and the record
submitted on appeal, we conclude that the Trainas have not demonstrated
reversible error.
Affirmed.
HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
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