41
THE STATE OF NEW HAMPSHIRE SUPREME COURT
______________________________
DOCKET NO. 2015-0583
______________________________
ROBERT JESURUM
V.
WILLIAM H. BINNIE, TRUSTEE OF THE HARRISON IRREVOCABLE TRUST;
TOWN OF RYE , NEW HAMPSHIRE; AND
STATE OF NEW HAMPSHIRE
RULE 7 MANDATORY APPEAL OF THE DECISION OF ROCKINGHAM COUNTY SUPERIOR COURT
BRIEF OF ROBERT JESURUM, APPELLEE
Paul McEachern, Esq. (1679) Jacob Marvelley, Esq. (20654) Shaines & McEachern, PA, 282 Corporate Drive Portsmouth NH 03801 (603) 436-3110 Jacob Marvelley, Esq. to argue
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii
QUESTIONS PRESENTED ........................................................................................................ 1
STATEMENT OF THE CASE .................................................................................................... 2
STATEMENT OF THE FACTS ................................................................................................. 4
SUMMARY OF THE ARGUMENT .......................................................................................... 8
STANDARD OF REVIEW ........................................................................................................ 10
ARGUMENT ............................................................................................................................... 11
THE TRIAL COURT PROPERLY RULED THAT THE PUBLIC HAS A PRESCRIPTIVE EASEMENT AT SANDERS POYNT. ................................................... 11
A. The Public’s Use of Sanders Poynt Was Adverse.......................................................... 11
B. Trial Evidence Further Proves Adversity. ...................................................................... 18
THE TRIAL COURT PROPERLY DEFINED THE SCOPE OF THE PUBLIC’S EASEMENT AT SANDERS POYNT AS INCLUDING PARKING AND BOAT LAUNCHING .......................................................................................................................... 20
A. Trial Evidence Proved Parking and Access Uses........................................................... 20
B. The Defendants Impermissibly Seek to Control the Public’s Subjective Intent. ........... 22
THE TRIAL COURT PROPERLY CONSIDERED LOCAL LAND USE ORDINANCES AND ENVIRONMENTAL REGULATIONS .......................................... 23
THE TRIAL COURT MADE ALL REQUIRED FINDINGS TO PROPERLY DETERMINE THE SCOPE OF THE EASEMENT ........................................................... 25
THE TRIAL COURT PROPERLY FOUND THE PUBLIC HAS MADE CONTINUOUS AND UNINTERRUPTED USE OF SANDERS POYNT .................................................... 26
THE TRIAL COURT PROPERLY AWARDED JESURUM HIS ATTORNEY’S FEES UNDER THE SUBSTANTIAL BENEFIT DOCTRINE ..................................................... 27
A. The Trial Court Properly Exercised Jurisdiction............................................................ 27
B. The Defendants, As Private Parties, Are Not Immune to the Substantial Public Benefit Fee Shift. ................................................................................................................................ 28
C. The Court Adequately Described Jesurum’s Public Benefit Motivation. ...................... 31
REQUESTED RELIEF .............................................................................................................. 33
ORAL ARGUMENT .................................................................................................................. 34
CERTIFICATE OF SERVICE ................................................................................................. 34
i
TABLE OF AUTHORITIES
CASES
Arcidi v. Town of Rye, 150 N.H. 694, 846 A.2d 535 (2004) ......................................................................................... 10 Arizona Center For Law in the Public Interest v. Hassell, 172 Ariz. 356, 837 P.2d 158 (Ct.App. 1991) ............................................................................ 30 Bedard v. Town of Alexandria, 159 N.H. 740, 992 A.2d 607 (2010) ......................................................................................... 29 Chouinard v. Shaw, 99 N.H. 26, 104 A.2d 522 (1954) ......................................................................................... 2, 19 Cook v. Sullivan, 149 N.H. 774, 829 A.2d 1059 (2003) ............................................................................. 3, 10, 19 Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2d 128 (Del. Ch. 2006) ................................................................................................... 14 Douglas v. Knox, 232 Ga. App. 551, 502 S.E.2d 490 (1998) .......................................................................... 13, 14 Dumont v. Town of Wolfeboro, 137 N.H. 1, 622 A.2d 1238 (1993) ........................................................................................... 10 E. Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., No. 12-CV-517-LM, 2015 WL 4603463 (D.N.H. July 30, 2015) ............................................ 27 Elmer v. Rodgers, 106 N.H. 512, 214 A.2d 750 (1965) .................................................................................. passim Friends of the Trails v. Blasius, 78 Cal. App. 4th 810, 93 Cal. Rptr. 2d 193 (2000) ................................................................... 30 Frost v. Comm’r, New Hampshire Banking Dep’t, 163 N.H. 365 (2012) ................................................................................................................. 33 Harkeem v. Adams, 117 N.H. 687, 377 A.2d 617 (1977) ......................................................................................... 29
ii
Hartford v. Gilmanton, 101 N.H. 424, 146 A.2d 851 (1958) ......................................................................................... 23 In re Estate of Smilie, 135 Vt. 217, 373 A.2d 540 (1997) ............................................................................................ 13 Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 910 A.2d 1262 (2006) ....................................................................................... 10 Lakeside Lodge, Inc. v. Town of New London, 158 N.H. 164, 960 A.2d 1268 (2008) ....................................................................................... 22 Mastin v. Prescott, 122 N.H. 353 (1982) ................................................................................................................. 12 Maui Tomorrow v. BLNR, 110 Haw. 234, 131 P.3d 517 (2006) ......................................................................................... 30 McCabe v. Arcidy, 138 N.H. 20, 635 A.2d 446 (1993) ........................................................................................... 10 Opinion of the Justices, 139 N.H. 82, 649 A.2d 604 (1994) ......................................................................... 12, 14, 17, 32 Price v. Eastham, 128 P.3d 725 (Alaska 2006) ...................................................................................................... 25 Purdie v. Attorney Gen., 143 N.H. 661, 732 A.2d 442 (1999) ......................................................................................... 22 Rautenberg v. Munnis, 107 N.H. 446, 224 A.2d 232 (1966) ......................................................................................... 27 Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Engineers &
Participating Employers, 134 S. Ct. 773, 187 L. Ed. 2d 669 (2014) ........................................ 27 Salminen v. Jacobson, 83 N.H. 219 (1928) ................................................................................................................... 26
iii
Sandford v. Town of Wolfeboro, 143 N.H. 481, 740 A.2d 1019 (1999) ................................................................................. 11, 12 Sierra Club v. Dep't of Transp. of State of Hawai'i, 120 Haw. 181, 202 P.3d 1226 (2009), as amended (May 13, 2009) .................................. 29, 30 Silva v. Botsch, 121 N.H. 1041, 437 A.2d 313 (1981) ....................................................................................... 29 State v. Hess Corp., 161 N.H. 426, 20 A.3d 212 (2011), as modified (Mar. 22, 2011) ............................................ 32 State v. Looney, 154 N.H. 801, 917 A.2d 1258 (2007) ....................................................................................... 27 State v. Sunapee Dam Co., 70 N.H. 458, 50 A. 108 (1900).................................................................................................. 23 State v. Tallman, 139 N.H. 223, 652 A.2d 134 (1994) ......................................................................................... 27 Taber v. Town of Westmoreland, 140 N.H. 613, 670 A.2d 1034 (1996) ....................................................................................... 10 Taylor v. Gerrish, 59 N.H. 569 (1880) ................................................................................................................... 13 Tennessee Gas Pipeline Co. v. Town of Hudson, 145 N.H. 598, 766 A.2d 672 (2000) ......................................................................................... 10 Town of Peterborough v. MacDowell Colony, Inc., 157 N.H. 1, 943 A.2d 768 (2008) ............................................................................................. 10 Town of Warren v. Shortt, 139 N.H. 240, 652 A.2d 140 (1994) ....................................................................... 11, 12, 13, 14 Ucietowski v. Novak, 102 N.H. 140, 152 A.2d 614 (1959) ............................................................................. 12, 13, 18
iv
Vigeant v. Donel Realty Trust, 130 N.H. 406, 540 A.2d 1243 (1988) ........................................................................... 12, 17, 23 Wason v. Nashua, 85 N.H. 192, 155 A. 681 (1931) ................................................................................... 12, 13, 17
STATUTES
Cal. Civ. Proc. Code § 1021.5 (West)........................................................................................... 30 N.H. R.S.A. § 483-B:1 .................................................................................................................. 22 N.H. R.S.A. § 483-C:1 .......................................................................................................... 7, 8, 33 N.H. R.S.A. § 539:6 ...................................................................................................................... 27
OTHER AUTHORITIES
Restatement (Third) of Property –Servitudes § 4.10 cmt. h (2000).............................................. 23
RULES
Fed. R. App. P. 4(a)(2) .................................................................................................................. 28 Supreme Court Rule 18 ................................................................................................................. 34
v
QUESTIONS PRESENTED
1. Whether the trial court properly granted Jesurum’s Motion for Summary
Judgment when he demonstrated his and the public’s use of Sanders Poynt for over twenty
years.
2. Whether the trial court properly set the scope of the public’s prescriptive
easement at Sanders Poynt.
3. Whether the trial court properly awarded Jesurum his attorney’s fees under
the substantial public benefit theory, since he vindicated a longstanding, public right.
4. Whether the trial court properly exercised jurisdiction over the attorney’s
fee issue after the Appellants filed their Rule 7 Notice of Appeal, which was silent on the
issue of attorney’s fees.
1
STATEMENT OF THE CASE
This case involves the public’s decades-long use of a parking and beach access area
known as Sanders Poynt. Robert Jesurum brought his Petition for Declaratory Judgment to
vindicate the public’s rights to the area when, in October 2012, the Defendant and fee owner
WBTSCC Limited Partnership, fenced off the beach access, placed boulders across it, and
planted shrubs to block the public’s access. See Defs. App. at 1-38.1 The State of New
Hampshire refused to litigate the public’s rights, so Jesurum did so. See Pl. App. at 1-6.
At the trial court, the Defendants filed a motion for summary judgment and Jesurum
cross-moved. The Defendants did not file additional affidavits, depositions or similar materials
in response to Jesurum’s cross-motion. The Rockingham County Superior Court (Wageling, J.)
granted Jesurum’s motion for summary judgment, ruling the public has prescriptive easement
rights at Sanders Poynt. Defs. Add. at 9-10. The trial court ordered a bench trial to determine
the scope of the public’s easement. Id. at 10.
The trial included a view, which is evidence in the case. See Chouinard v. Shaw, 99 N.H.
26, 27-28, 104 A.2d 522, 523 (1954) (view constitutes evidence) (citations omitted).At the bench
trial, the Defendants again argued the public had no prescriptive rights and elicited testimony in
support of their theories against a public prescriptive easement. See Tr.1 at 68:16-252 (inquiring
about “friendly interactions” and permission); Id. at 78:6-17 (same); id. at 91:2-13 (same); id. at
102:19-22 (inquiring about WBTSCC LP’s use of Sanders Poynt); Tr.2 at 161:6-11 (inquiring
about neighborliness); id.at 162:7-163:12 (inquiring about interruption of use); id. at 197:1-200:6
1 This Appellee’s Brief cites to the record as follows: A. Defendant-Appellant’s Addendum: “Defs. Add.”; Defendant-Appellant’s Appendix: “Defs. App.”; B. Plaintiff-Appellee’s Appendix: “Pl. App”
2 The trial transcript of the bench trial on June 25-26, 2016, was produced in three files consisting of two volumes and one separate file for the testimony of Edward Clancy. Jesurum cites the trial transcript as follows: Volume 1: “Tr.1” Volume 2: “Tr.2” Clancy’s Transcript: “Clancy Tr.”
2
(same); id. at 214:21-215:5 (inquiring about public’s use of Sanders Poynt); id. at 239 (arguing
extinguishment of easement rights); id.at 243 (Mr. Binnie claiming he authorized the Town of
Rye’s regulatory signs); id. at 248:12-16 (Mr. Binnie arguing he permitted public parking). The
Defendants, in their Requests for Findings and Rulings, asked for rulings that no public
prescriptive easement exists. Defs. App. at 247, ¶¶ 3-7 (requesting findings and rulings that
public’s use was permissive, not adverse).
The trial court, in its Order on the scope of the public’s prescriptive easement rights,
considered the Defendants’ arguments and ruled upon the existence vel non of prescriptive
rights. Defs. Add. at 26, 30-33. By litigating the issue at trial, the Defendants caused the trial
court to rule on the existence of an easement after a bench trial. In doing so, the Defendants
transformed the Court’s standard of review from the review of a grant of summary judgment to
whether the trial court’s findings and rulings are unsupported by the evidence or are erroneous as
a matter of law. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059, 1065 (2003) (explaining
standard of review of orders on bench trials).
The trial court issued an order, granting the public the rights to park and access Little
Harbor Beach, including the right to park with and hand-carry small boats to the water. Defs.
Add. at 25-27. The trial court initially denied Jesurum’s request for attorney’s fees. Jesurum
moved for reconsideration, asking the trial court to grant him his attorney’s fees under the
substantial public benefit theory. Defs. App. at 251-53, 257-262. The Defendants did not object,
but filed a Notice of Appeal that did not mention attorney’s fees. The trial court retained
jurisdiction over the fee issue and granted Jesurum his fees. Defs. Add. at 39. The Defendants
moved for reconsideration, which the trial court denied in a six-page order. Id. at 42-47.
3
STATEMENT OF THE FACTS
Sanders Poynt is a historical beach access point consisting of a gravel parking area and a
pathway leading to Little Harbor Beach. Defs. App. at 120, ¶ 7; id. at 122 (“Detail” depicting
“Gravel Parking Lot” and “Path to Waters Edge”). Until the Defendants blockaded access in
2012, Sanders Poynt was easily discernible from the adjacent golf course also owned by
Defendant WBTSCC Limited Partnership. Id. at 128-132 (photographs depicting Sanders Poynt
before the 2012 closure). Sanders Poynt was separated from the golf course by a split-rail fence
and shrubbery. Id. at 129.
The public’s use of Sanders Poynt goes back to pre-Revolutionary War colonial history.
Use of Sanders Poynt extends to 1623, when John Sanders landed his men there, where
fishermen dried and traded fish. Defs. App. at 113-14. A 1984 governmental study noted,
“[i]nterviews suggest that the public has acquired a prescriptive use at this site by virtue of
uninterrupted use for hundreds of years, primarily in search of shellfish and worms along the
sides of Little Harbor.” Id. at 157.
In 1990, Jesurum joined the public in making use of Sanders Poynt as a parking and
beach access point. Id. at 123-26. Jesurum observed members of the public park at and use
Sanders Poynt to access Little Harbor Beach. Id. at 124, ¶ 5. All the while, the Defendants
made no effort to prevent access or otherwise exercise any control over Sanders Poynt. Id. at
124, ¶¶ 4-6. The Town of Rye exercised control, installing a “BEACH ACCESS” sign, and
signs regulating parking. Id. at 124, ¶ 6. See also id. at 216-17, ¶ 3 (quoting July 31, 1995 Town
of Rye Board of Selectmen Meeting Minutes capturing vote to install beach access signs and
place reclamation fill in the Sanders Poynt parking area).
4
On summary judgment, the Defendants claimed they allowed the public’s use of Sanders
Poynt, but did not establish any manifestations of that permission. The only tangible evidence
the Defendants cite is a 1999 letter from William Binnie to Robert Jesurum. Defs. App. 127.
However, that letter concerned permission to walk across the golf course and did not mention the
Sanders Poynt area, which was distinct from the golf course. See id.
The trial evidence and view proved the scope of the easement included parking and beach
access rights. On parking, Mike Flanigan testified that he started accessing the Little Harbor
mud flats via Sanders Poynt in the early 1950s, including during the winter. Trial Transcript vol.
1 at 122:20-25, 123:7-11. His use was at all times of day, depending on tides. Tr.1 at 125:6-8,
125:14-18. When he visited, he would drive into the Sanders Poynt parking lot and walk down
to the mud flats. Id. at 124:11-14. While rustic and undeveloped at that time, Flanigan
nevertheless recalled the parking area. Id. at 124:15-20. Flanigan saw other members of the
public parking there. Id. at 124:23-125:5. The public included commercial bait workers. Id. at
124:24-25. Flanigan has always known Sanders Poynt as a public access point to Little Harbor.
Id. at 128:15-18.
Other witnesses supported Flanigan’s testimony. Demetrios Yiannacopoulos knew
Sanders Poynt for about 30-35 years as of the August 2015 bench trial. Tr.1 at 93:19-22.
Viewing Trial Exhibit 1, a photograph of Sanders Poynt, Yiannacopoulos testified he does not
recall it changing much, except since the Defendants blockaded access. See id. at 93:1-94:3.
Ritchie White started parking at Sanders Poynt in 1985 or 1986 and began walking his
dog there in 1987. Tr.1 at 72:20-13. White began using the area regularly after 1988. Id. at
73:14-23. During that time, White observed the public launching kayaks, picking up golf balls,
and sunbathing. Id. at 75:18-76:3. Inger Arky began visiting Sanders Poynt in 1975. Id. at
5
176:2-3. Arky parked bicycles in the parking lot, either against a fence or on “something that
differentiated the parking. Id. at 176:7-17. Robert Jesurum parked at Sanders Poynt “at least
several times a year” during his twenty-twenty years regularly using the area for dog walking.3
Id. at 160:1-12.
Attorney Edward Clancy lived across the street from Sanders Poynt from 1976 to 1984.
Clancy. Tr. at 4:4-7. Clancy observed Sanders Poynt to be a public parking lot. Id. at 5:1-4. He
observed the public’s use of the parking at Sanders Poynt to be consistent throughout the year,
with some additional visitors in the summertime. Id. at 5:23-6:4.
The evidence also supported a finding that the public accessed Little Harbor Beach from
Sanders Poynt to launch small boats. Ritchie White observed the public launch aluminum or
fiberglass duck hunting boats and canoes in the 1970s. Those people parked in the Sanders
Poynt gravel parking area. Tr.1 76:7-24. White observed boat launchings in the 1980s. Id. at
78:23-3. Edward Clancy observed windsurfers launching from Sanders Poynt when he lived
across the street, from 1976 to 1984. Clancy Tr. at 4:4-7; id. at 7:10-26 (describing windsurfers).
Clancy observed the activity continue after 1984. Id. at 7:17-21.
Demetrios Yiannacopoulos launched duckboats at Sanders Poynt from 1992-1995. Tr.1
at 96:4-16. When he launched, three trucks would park at Sanders Poynt, some of which were
carrying boats. Id. at 96:17-97:4. The duck hunters would carry the boats down to the water
from the parking lot. Id. at 97:7-8. Yiannacopoulos saw members of the public launching
kayaks in the early 1990s. Id. at 98:16-20, 99:16-22. The public’s use of canoes predated the
use of kayaks. Id. at 99:19-24.
3 Those twenty-two years were from 1990-2012, when Defendant WBTSCC LP blockaded access.
6
Similarly, Ken Jennings sailed small, 13-foot fiberglass dinghies from Sanders Poynt
from 2000-2005. Tr.1 117:8:20. Jennings’ group of three-to-five people transported the boats to
Sanders Poynt with cars using trailers or on pickup trucks. Id. at 117:24-25, 118:10-16.
The evidence supports the trial court’s finding that the public has parked vehicles at
Sanders Poynt and accessed Little Harbor Beach to launch boats at Sanders Poynt for more than
twenty years. As public trust land. Little Harbor Beach may be used for “all useful and lawful
purposes, to include recreational purposes, subject to the provisions of municipal ordinances
relative to the ‘reasonable use’ of the public trust shorelands.” R.S.A. § 483-C:1, III. The public
also parked at Sanders Poynt to look at the scenery. See Tr.1 at 128:4-9.
The trial court properly found, based on the evidence, including a view, that the public
had prescriptive rights to park at Sanders Poynt. Defs. Add. at 26-27. The trial court also found
that the public had the right to park vehicles carrying small vessels, which vessels can be carried
from the parking area to Little Harbor Beach. Id. at 27-28.
The trial court awarded Jesurum his attorneys fees under the substantial public benefit
theory. Jesurum defended the public’s sole access to Little Harbor Beach, which is public trust
land. When Jesurum observed the Defendants installing the fence, he went to the Town of Rye’s
building inspector, who did not withdraw the building permit, but noted the permit issued with a
disclaimer about the possibility of prescriptive rights. Tr.2 156:19-157:6. Jesurum and a group
of the public then went to a Town of Rye meeting to stop construction. Id. at 157:8-15. Jesurum
went to the Town of Rye’s Board of Adjustment, which disclaimed jurisdiction. Id. at 157:17-
23. Jesurum, through counsel, petitioned the New Hampshire Attorney General to litigate the
matter, but the Attorney General declined. Id. at 158:15-159:1. Jesurum was left with no option
but to litigate the public’s claim. Id. at 158:23-159:1.
7
SUMMARY OF THE ARGUMENT
THE TRIAL COURT PROPERLY RULED THAT THE PUBLIC HAS A PRESCRIPTIVE EASEMENT AT SANDERS POYNT.
On summary judgment, the trial court properly ruled the public had prescriptive rights at
Sanders Poynt. Jesurum produced uncontroverted evidence that the public used Sanders Poynt
for parking and beach access for more than twenty years. The Defendants claim they permitted
the use, but offered no evidence they ever communicated that permission to the public. The
nature of the public’s use showed the public used Sanders Poynt in such a manner that the
Defendants knew or ought to have known the right was exercised without regard to permission.
The Defendants litigated the same issue at the trial on the scope of the easement and the
trial court rejected the Defendant’s arguments. Re-litigating the existence of the easement at that
trial broadened the evidence available to the trial court in finding an easement exists. The trial
evidence included a view conducted by the trial court. Re-litigating the issue also triggered a
more deferential standard of review.
THE TRIAL COURT PROPERLY DEFINED THE SCOPE OF THE PUBLIC’S EASEMENT AT SANDERS POYNT TO INCLUDE PARKING AND BEACH ACCESS
The trial court properly defined the scope of the public’s prescriptive easement at Sanders
Poynt. The trial evidence proved parking and access uses in conformity with the trial court’s
orders. The Defendants, through their argument, seek to limit the public’s use of Little Harbor
Beach by controlling which users among the public can use Sanders Poynt. However, Little
Harbor Beach, as public trust land, is open by statute, R.S.A. § 483-C:1, III, to a broad swath of
uses.
8
THE TRIAL COURT PROPERLY AWARDED JESURUM HIS ATTORNEY’S FEES UNDER THE SUBSTANTIAL BENEFIT DOCTRINE
The trial Court properly awarded Jesurum his attorney’s fees under the substantial public
benefit theory. New Hampshire law has not limited the theory to only apply against public entity
defendants. Rather, the theory’s focus is on the benefit the plaintiff confers upon the public.
Courts handling that question in other jurisdictions have similarly focused on the benefit
conferred and awarded fees against private entities. Jesurum, through this litigation, vindicated
the public’s right to access Little Harbor Beach, which is public trust land, and is one of only a
few remaining public beach access points in the Town of Rye. Jesurum vindicated a substantial
public benefit and is entitled to his fees.
9
STANDARD OF REVIEW
As described above, the Defendants presented evidence and litigated the trial court’s
grant of summary judgment at the subsequent bench trial on the scope of the easement. The
standard of review thereby converted from taking the affidavits and evidence in the light most
favorable to the non-moving party to the review of a trial court’s findings and rulings following
an evidentiary hearing. See Town of Peterborough v. MacDowell Colony, Inc., 157 N.H. 1, 5,
943 A.2d 768, 771-72 (2008) (quoting Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248, 910
A.2d 1262 (2006) (stating standard of review of trial court’s grant of summary judgment).
The standard of review applied in an appeal from a bench trial is whether the findings and
rulings are unsupported by the evidence or are erroneous as a matter of law. Cook v. Sullivan,
149 N.H. at 780, 829 A.2d at 1065. This Court gives significant deference to the trial court,
recognizing that the trial court may “accept or reject, in whole or in part, whatever evidence was
presented, including that of expert witnesses.” Id. (citing Tennessee Gas Pipeline Co. v. Town of
Hudson, 145 N.H. 598, 602, 766 A.2d 672 (2000). This Court “defer[s] 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. (citing McCabe v. Arcidy, 138
N.H. 20, 24, 635 A.2d 446 (1993)).
When reviewing a trial court’s award of attorney’s fees, this Court will uphold the trial
court unless its factual findings “are erroneous as a matter of law or unsupported by the
evidence.” Taber v. Town of Westmoreland, 140 N.H. 613, 615, 670 A.2d 1034, 1036 (1996)
(citing Dumont v. Town of Wolfeboro, 137 N.H. 1, 10, 622 A.2d 1238, 1244 (1993)). See also
Arcidi v. Town of Rye, 150 N.H. 694, 704, 846 A.2d 535 (2004) (“We review the trial court’s
10
award of attorney’s fees under an unsustainable exercise of discretion standard, giving deference
to the trial court’s decision.”).
ARGUMENT
THE TRIAL COURT PROPERLY RULED THAT THE PUBLIC HAS A PRESCRIPTIVE EASEMENT AT SANDERS POYNT. The Rockingham County Superior Court correctly ruled that the public has prescriptive
rights at Sanders Poynt. The only issue the appellants raise on appeal is whether the public’s use
was sufficiently adverse to yield prescriptive rights.4 In arguing that issue, the appellants ignore
New Hampshire case law distinguishing adversity from permission. Applying New Hampshire
law to the facts urges affirmance of the trial court’s finding a public prescriptive easement.
A. The Public’s Use of Sanders Poynt Was Adverse.
To prove accrual of a public prescriptive easement, Jesurum must establish that the public
used the premises under a claim of right, without permission, continuously for a period in excess
of twenty years. See Elmer v. Rodgers, 106 N.H. 512, 513, 214 A.2d 750, 751 (1965). Jesurum,
as the claimant, carries the burden of persuasion on the absence of permission element; however,
the burden of production is multi-tiered. First, the claimant carries the burden to prove a prima
facie case of adverse use. To do so, the claimant “must initially produce evidence of acts of such
a character that create an inference that the claimant [here, the public] adversely used the
landowner's property, that is, used it without permission.” Sandford v. Town of Wolfeboro, 143
N.H. 481, 485-86, 740 A.2d 1019, 1022-23 (1999) (citing Town of Warren v. Shortt, 139 N.H.
240, 243, 652 A.2d 140, 142 (1994)) (bracketed language added). Upon such a showing, the
burden of production shifts to the fee owner to produce evidence that the claimant's intrusive acts
4 See Defs. Br. at 15 (“Jesurum’s use and the public’s use of the subject land were permissive, not adverse”); Omnibus Order on the Parties’ Motions for Summary Judgment, Defs. Add. at 9 (“The Wentworth defendants do not dispute the other elements of the prescriptive easement claims.”).
11
were, in fact, permitted.” Sandford, 143 N.H. at 485-86, 740 A.2d at 1022-23 (citing Town of
Warren, 139 N.H. at 243, 652 A.2d at 142). In this matter, Jesurum established the public’s
adverse use of Sanders Poynt and the Defendants failed to show permission.
Legally, the question is what qualifies as adverse in New Hampshire, and what amounts
to permissive use. The Defendants ignore three New Hampshire cases relied upon by the trial
court that explain that the public’s use is adverse for purposes of prescription when an owner
knows of extensive use of land by the public and the public’s use is such that the owners knew or
ought to have known the right was exercised without regard to their consent. See Ucietowski v.
Novak, 102 N.H. 140, 152 A.2d 614 (1959); Elmer, 106 N.H. at 514, 214 A.2d at 751; Opinion
of the Justices, 139 N.H. 82, 649 A.2d 604 (1994).
The public must use the land “in such a manner as to give notice to the record owner that
an adverse claim was being made to it.” Opinion of the Justices, 139 N.H. at 92 (quoting Mastin
v. Prescott, 122 N.H. 353, 356 (1982)). A property owner’s claim of toleration or permission is
irrelevant when the nature of the use is “such as to show the owner knew or ought to have known
that the right was being exercised, not in reliance upon his toleration or permission, but without
regard to his consent.” Id. (quoting Vigeant v. Donel Realty Trust, 130 N.H. 406, 408, 540 A.2d
1243, 1244 (1988)). See also Ucietowski, 102 N.H. at 144-45 (same); Wason v. Nashua, 85 N.H.
192, 155 A. 681, 685 (1931) (same).
When the public makes public use of a beach access without asking permission, they act
adversely. For example, in Elmer v. Rodgers, a church owned a beach and surrounding area,
which was used for bathing and picnicking. 106 N.H. at 513. The public used the area,
accessing it via a driveway near the church’s buildings. Id. The church claimed they had given
consent and permission, but witnesses testified they had used it openly and without obtaining
12
permission. Id. The trial court ruled that “The use of the premises by the general public was of
such a nature and to such an extent that the owners of the land should have known that the right
was being exercised without regard to the consent of the owners.” Id. The Supreme Court
affirmed, noting there was evidence that the owners knew of the extensive use by the general
public. Id. at 514. Further, the Supreme Court explained that the church owners, members and
guests use of the premises for the same uses as the general public “would not prevent the finding
of an adverse use by the general public. Id. (citing Ucietowski, 102 N.H. at 144).
Conversely, the public’s use of a private road may not be sufficiently adverse when that
private road already has a deeded easement allowing for large numbers of travelers who are
indistinguishable from the general public. See Town of Warren, 139 N.H. 240, 652 A.2d 140 .
In Town of Warren, the private road at issue was a private right of way giving access to a mill
company. 139 N.H. at 242, 652 A.2d at 140-41. The mill employed many residents of the town,
so many employees and customers of the mill used the right of way for access. Id. at 244. Since
so many people used the right of with permission, the occasional public use was incidental to use
allowed by the deeded right of way. Id. at 244-45 (citing Wason, 85 N.H. at 199, 155 A. at 685).
The Town of Warren Court rule that when, as in that case, an adverse use is coterminous with a
deeded easement, more evidence is needed to prove adversity. 139 N.H. at 244. In such a
circumstance, there must first be repudiation of the earlier permission. Id. (citing Taylor v.
Gerrish, 59 N.H. 569, 571 (1880); In re Estate of Smilie, 135 Vt. 217, 373 A.2d 540, 543
(1997).5 Town of Warren’s repudiation rule is inapplicable here, since there was no deeded
permission.
5 The Defendants urge this Court to consider secondary authority from Georgia on the same issue. Defs. Br. at 17 (citing Douglas v. Knox, 232 Ga. App. 551, 502 S.E.2d 490, 491 (1998)). However, the Douglas case is analogous to Town of Warren because the facts admit that those plaintiffs, neighbors, originally used a private way with
13
The Defendants identify a similarly inapplicable Delaware case, Dewey Beach Lions
Club, Inc. v. Longanecker, 905 A.2d 128, 129 (Del. Ch. 2006) (hereinafter “Dewey Beach”).
Dewey Beach, a highly fact-specific case, the fee owner owned and maintained a playground
open for public use. 905 A.2d at 130. The playground was surrounded by a fence. Id. The
adjoining “open area,” called a “Strip” in the opinion, was used by the public to access the
playground. Id. It was also used by nearby neighbors to access their parcels. Id. at 131. For
similar reasons as the Town of Warren plaintiffs could not prove prescriptive use when the use
was originally based on permission, so the Dewey Beach plaintiffs failed show adversity when
their use was incidental compared to the public, which was already using the parcel for access
with express permission from the fee owner. See Dewey Beach, 905 A.2d at 135.
Sanders Poynt is like Elmer and unlike Town of Warren or Dewey Beach because the
public used Sanders Poynt without regard to the landowner and without manifest permission.
The Defendants’ factual record on summary judgment was remarkably sparse.6 The Defendants
acknowledge this limitation in their brief. See Defs. Br. at 21 (marshaling evidence in support of
permission).
If the Defendants’ argument prevailed, all a landowner would need to do to defeat a
prescriptive easement is claim the landowner tacitly approved the use. Elmer and Opinion of the
Justices demonstrate that a landowner must take action when the public uses the land without
regard to the landowner’s permission. To agree with the Defendants would be to overrule those
cases and effectively prohibit the accrual of prescriptive rights in New Hampshire.
explicit permission. Douglas, 232 Ga. App. at 551, 502 S.E.2d at 491. This Court does not need to embark on a separate analysis of a second case containing the same fatal distinction from the instant matter. 6 The Defendants first moved for summary judgment, then Jesurum cross-moved. The Defendants opposed Jesurum’s cross-motion without filing any additional affidavits, depositions, or other facts. Their factual universe was therefore limited to their filings in support of summary judgment.
14
Binnie, in his affidavit, claims the Defendants permitted the public’s use of the property.
Defs. App. at 65-66, ¶¶ 2-4. However, Binnie does not allege any outward manifestation of that
permission, aside from the letter written to Jesurum on May 21, 1999. Id., ¶ 4. The claim is
belied by the letter itself, which discusses traversing the golf course, not Sanders Poynt.
Compare Defs. App. at 66, ¶ 4 with id. at 127 (Binnie letter to Jesurum). The golf course is
separate from and adjacent to Sanders Poynt. See Defs. App. at 129-31 (photographs of Sanders
Poynt next to golf course). A split-rail fence separates the golf course from Sanders Poynt. Id.
at 128-29 (photographs depicting fence). A 1984 study noted “[t]he site’s lack of vegetative
cover sets it clearly apart from the golf course,” further demonstrating the distinction. Id. at 154.
The Defendants’ only other salient allegation is that they were neighborly towards
Jesurum and the public, which they claim manifests permission. Defs. Br. at 21. However, there
was only evidence of neighborliness towards Jesurum, not the public. Defs. App. at 78, dep.
pages 29:13-30:6, 32:16-19 (evidence of neighborliness towards Jesurum); id. at 78-79, dep.
pages 32:20-33:14 (no observation of neighborly interactions between public and Defendants).
Also, like the 1999 letter, the neighborliness is irrelevant because the Defendants were acting
neighborly while Jesurum walked past the golf course onto Sanders Poynt, which was separated
from their golf course by a split-rail fence.
Without any material proof of manifested permission, the trial court properly accepted
Jesurum’s facts as uncontested and dispositive on the issue of a public prescriptive easement.
There were two components to that acceptance: 1) accrual of the rights; and 2) finding that the
public acted without regard to the Defendants’ purported permission. On the accrual of
prescriptive rights, the trial court properly found that “[Jesurum] and members of the public have
continuously used the land for over twenty years to access the nearby beach without seeking
15
permission from the Wentworth defendants.” Summary Judgment Order, Defs. Add. at 6 (citing
Clancy Aff., ¶¶ 3-4, Jesurum Aff. ¶ 5). Clancy’s Affidavit establishes that, during the period
1976-1984, the split-rail fence separating Sanders Poynt from the golf course already existed, the
parking area was already rutted with use, the trodden path was already well-beaten from public
foot traffic, and the public used both the parking lot and trodden path without asking permission.
Defs. App. at 213-14, ¶¶ 3-4. Jesurum’s Affidavit establishes that, since 1990, he observed
members of the public use Sanders Poynt without ever asking permission. Id. at 123-24, ¶¶ 2, 5.
The public made its use of Sanders Poynt and the Town of Rye considered Sanders Poynt
to be public space for decades. Summary Judgment Order, Defs. Add. at 6. A historian has
traced the public’s use of Sanders Poynt to 1623. Defs. App. at 112-14. A 1984 Rockingham
Planning Commission Study conducted interviews of local residents and noted “[i]nterviews
suggest that the public has acquired a prescriptive use at this site by virtue of uninterrupted use
for hundreds of years, primarily in search of shellfish and worms along the sides of Little
Harbor.” Id. at 157. The undisputed material facts show the public used Sanders Poynt as its
own. Even an 1889 deed conveying a parcel that included Sanders Poynt excluded rights and
privileges belonging to the public: the deed states it is “intending to convey all the land and
water rights and privileges not belonging to the public [. . . .]” Id. at 217, ¶ 5 (quoting deed from
Odiorne to Richardson).7 The public used Sanders Poynt for well over twenty years without
regard to the Defendants’ alleged tacit permission.
Similarly, during the Defendants’ ownership, the undisputed facts demonstrate the public
used Sanders Poynt without regard for the Defendants’ claimed ‘permission.’ Beyond the split-
rail fence physically separating the Defendants’ golf course and Sanders Poynt, only the Town of
7 The affidavit at Defs. App. 216 references a deed dated August 22, 1989, annexed as Affidavit Exhibit E. The year 1989 was a scrivener’s error. Affidavit Exhibit E, recites that it is dated August 22, 1889. See Defs. App. at 228.
16
Rye regulated Sanders Poynt. The Town of Rye installed a “BEACH ACCESS” sign to alert the
public to the right of access, and signs regulating parking. Defs. App. at 124, ¶ 6; id. at 216-17, ¶
3 (explaining Town of Rye’s 1995 vote to install traffic regulation signs and place reclamation
fill to eliminate a ponding problem in parking lot). There were also concrete parking barriers at
Sanders Poynt. Tr.1 at 146:18-22; Pl. App. at 27 (photograph of barriers post-2012
construction). In 1995, when the Town of Rye asked WBTSCC about its interest, if any, in
Sanders Poynt, WBTSCC disclaimed interest. Defs. App. at 215-16, ¶ 2 (WBTSCC’s Peter
Weeks stated he “did not feel the Wentworth had any interest”).
The Defendants erroneously propose that their silent acceptance of the public’s use of
Sanders Poynt constitutes legal permission. See Defs. Br. at 18. The Defendants’ argument fails
because, in New Hampshire, silent acquiescence without exercising dominion over the subject
land does not constitute legal permission. Under New Hampshire law, absence of permission is
proven when the “evidence warrant[s] a finding that a reasonable man in the place of the owners
would have known that the public was occupying the premises under a claim of right.” Elmer,
106 N.H. at 515, 214 A.2d at 752 (citing Wason, 85 N.H. at 198). See also Opinion of the
Justices, 139 N.H. at 92, 649 A.2d at 610 (quoting Vigeant, 130 N.H. at 408, 540 A.2d at 1244)
(“The nature of the use must be such as to show the owner knew or ought to have known that the
right was being exercised, not in reliance upon his toleration or permission, but without regard to
his consent.”).
Even when a landowner exercises control over the property and denies permission to
certain groups, the public can obtain prescriptive rights. Elmer, 106 N.H. at 516. In Elmer,
undisputed evidence demonstrated that members of the general public, in addition to members of
the landowner church, used a beach and surrounding area for “bathing and picnicking purposes
17
continuously for a period in excess of sixty years.” Id. at 513. At trial, several witnesses
testified to using the property for bathing and picnicking without obtaining the landowner’s
permission. Id.
In the Elmer case, the defendant landowner, a church, argued that the public’s use of the
land was subject to the landowner’s consent and permission. Id. In support of its argument, the
defendant offered evidence that members of the landowner church used the land and granted
permission to certain groups while denying permission to others. Id. at 514. Evidence also
showed that the landowner placed and maintained trash barrels and, for a two-year period, posted
signs “regulating the hours during which the area as to be used.” Id.
Notwithstanding the landowner’s evidence of control and permission, the Court upheld
the trial court’s ruling that the public acquired prescriptive rights. Id. 514-15. The Supreme
Court held that evidence supported a finding that “the owners knew of this extensive use of the
premises by the general public.” Id. at 514. Additionally, the Court held that “for over twenty
years the premises were used for bathing and picnicking in such a manner that the owners knew
or ought to have known that the right was being exercised not in reliance upon their toleration or
permission but without regard to their consent.” Id. at 514 (citing Ucietowski, 102 N.H. at 144).
B. Trial Evidence Further Proves Adversity.
The trial evidence further proves that the public used Sanders Poynt under a claim of
right, without regard to the permission vel non of the Defendants. While a subsequent trial’s
evidence typically does not impact a summary judgment review, the Defendants litigated the
existence of prescriptive rights at the post-summary judgment bench trial on the scope of the
easement. See Defs. App. at 247, ¶¶ 3-7 (arguing use was permissive, not adverse). After
hearing the evidence at the bench trial on the scope of the easement, the trial judge concluded
18
“Nothing that I’ve heard during the last few days changes my opinion with regard to the fact
there will be some public use, you know. There’s nothing new that I’ve heard that changed my
mind on that.” Tr.2 at 271:20-23. This Court employs a more deferential standard of review to a
trial court’s evidentiary findings at trial. Cook, 149 N.H. at 780, 829 A.2d at 1065 (standard of
review in an appeal from bench trial is whether findings and rulings are unsupported by evidence
or are erroneous as a matter of law).
The record evidence further demonstrates that the public used Sanders Poynt without
regard to the Defendants’ so-called permission. The Defendants only owned the property
beginning in 1994. Tr.2 at 228:19-21. At least forty years earlier, the public was already
parking at Sanders Poynt to access Little Harbor Beach. Tr.1 at 122:20-123:11; id. at 124:11-
125:18. Even in the 1950s, Sanders Poynt was thought of as public parking. Id. at 128:15-18.
Further, Attorney Edward Clancy lived across the street from Sanders Poynt from 1976 to 1984,
which he observed to be a public parking lot. Cl. Tr. At 4:4-7, 5:1-4.
Additionally, the trial court conducted a view, which is evidence in the case. See
Chouinard, 99 N.H. at 27-28, 104 A.2d at 523 (views are evidence). The view was not
preserved and is not reasonably subject to review.
By litigating the issue of permission and adversity at the bench trial on the scope of the
easement, the Defendants both allowed Jesurum to present additional evidence and subjected the
issue to a more deferential standard of review. The evidence amply warranted a finding that the
public’s use of Sanders Poynt was adverse.
19
THE TRIAL COURT PROPERLY DEFINED THE SCOPE OF THE PUBLIC’S EASEMENT AT SANDERS POYNT AS INCLUDING PARKING AND BOAT LAUNCHING
The trial court properly defined the scope of the public’s easement at Sanders Poynt. The
public has used Sanders Poynt to park and access the public trust land at Little Harbor Beach.
The Defendants, in their brief, seek to limit the public’s purpose in using Sanders Poynt to
digging for worms, clams or mussels on the public trust land. See Defs. Br. at 25. The
Defendants argue that parking and launching boats at Sanders Poynt constitute a change in the
prescriptive use. See id. at 26. Factually, Jesurum proved that the public has parked at Sanders
Poynt and launched boats for longer than the twenty year prescriptive period. Legally, the
Defendants’ argument fails because it confuses use of Sanders Poynt with the public’s subjective
intent in using Sanders Poynt.
A. Trial Evidence Proved Parking and Access Uses.
Parking and boat launching have been integral to the public’s use of Sanders Poynt for
many years. The trial court ruled that the public has a prescriptive easement to park vehicles
during all seasons of the year. Defs. Add. at 26. The trial court also ruled the public has the
right to park vehicles containing small boats, but the public must carry those vessels from the
vehicles across Sanders Poynt: carts are not allowed. Id. at 27-28.
The evidence established parking. Mike Flanigan, an area resident for 73 years, testified.
Tr.1 at 121:24-25. He started accessing the Little Harbor mud flats via Sanders Poynt in the
early 1950s. Id. at 122:20-25. His use included the wintertime. Id. at 123:7-11. His use was at
all times of day, depending on tides. Id. at 125:6-8, 14-18. When he visited, he would drive into
the Sanders Poynt parking lot and walk down to the mud flats at Little Harbor. Id. at 124:11-14.
While rustic and undeveloped at that time, Flanigan nevertheless recalled the parking area. Id. at
20
124:15-20. Flanigan saw other members of the public parking there. Id. at 124:23-125:5. The
public included commercial bait workers. Id. at 124:24-25. Flanigan has always known Sanders
Poynt as a public access point to Little Harbor. Id. at 128:15-18.
Other witnesses supported Flanigan’s testimony. Demetrios Yiannacopoulos knew
Sanders Poynt for about 30-35 years as of the August 2015 bench trial. Tr.1 93:19-22. Viewing
Trial Exhibit 1, a photograph of Sanders Poynt, Yiannacopoulos testified he does not recall it
changing much, except since the Defendants blockaded access. See id. at 93:1-94:3.
Ritchie White started parking at Sanders Poynt in 1985 or 1986 and began walking his
dog there in 1987. Tr.1 at 72:20-13. White began using the area regularly after 1988. Id. at
73:14-23. During that time, he observed the public launching kayaks, picking up golf balls, and
sunbathing. Id. at 75:18-76:3. Inger Arky began visiting Sanders Poynt in 1975. Id. at 176:2-3.
Arky parked bicycles in the parking lot, either against a fence or on “something that
differentiated the parking. Id. at 176:7-17. Robert Jesurum parked at Sanders Poynt “at least
several times a year” during his twenty-two years living in the area. Id. at 160:1-5.
Attorney Edward Clancy lived across the street from Sanders Poynt from 1976 to 1984.
Cl. Tr. at 4:4-7. Clancy observed Sanders Poynt to be a public parking lot. Id. at 5:1-4. He
observed the public’s use of the parking at Sanders Poynt to be consistent throughout the year,
with some additional visitors in the summertime. Id. at 5:23-6:4.
The evidence also supported a finding that people launched boats at Sanders Poynt.
Ritchie White observed the public launch aluminum or fiberglass duck hunting boats and canoes
in the 1970s. Those people parked in the Sanders Poynt gravel parking area. Tr.1 at 76:7-24.
White observed boat launchings in the 1980s. Id. at 78:23-3. Edward Clancy observed
windsurfers launching from Sanders Poynt when he lived across the street, from 1976 to 1984.
21
Cl. Tr at 4:4-7 (Clancy lived across the street 1976-84), 7:10-26 (describing windsurfers).
Clancy observed the activity continue after 1984. Id. at 7:17-21.
Demetrios Yiannacopoulos launched duckboats at Sanders Poynt from 1992-1995. Tr.1
at 96:4-16. When he launched, three trucks would park at Sanders Poynt, some of which were
carrying boats. Id. at 96:17-97:4. The duck hunters would carry the boats down to the water
from the parking lot. Id. at 97:7-8. Yiannacopoulos saw members of the public launching
kayaks in the early 1990s. Id. at 98:16-20, 99:16-22. The public’s use of canoes predated the
use of kayaks. Id. at 99:19-24.
Similarly, Ken Jennings sailed small, 13-foot fiberglass dinghies from Sanders Poynt
from 2000-2005. Tr.1 117:8:20. Jennings’ group of three-to-five people transported the boats to
Sanders Poynt with cars using trailers or on pickup trucks. Id. at 117:24-25, 118:10-16.
The evidence supports the trial court’s finding that the public has parked vehicles at
Sanders Poynt and launched boats at Sanders Poynt for more than twenty years.
B. The Defendants Impermissibly Seek to Control the Public’s Subjective Intent.
The Defendant’s change-of-use argument falls flat because the public’s use of Sanders
Poynt has consistently been to park and traverse. The Defendants argue that the public should be
limited to searching for shellfish and worms. Defs. Br. at 26. However, those uses were made of
the public trust land, meaning the coastal land below the mean high water mark. See Purdie v.
Attorney Gen., 143 N.H. 661, 665, 732 A.2d 442, 446 (1999). Public trust land is regulated by
the state and consists of a “bundle of ‘all useful and lawful purposes,’” including the right to
recreational boating. Lakeside Lodge, Inc. v. Town of New London, 158 N.H. 164, 168, 960 A.2d
1268, 1271 (2008) (citing, inter alia, R.S.A. § 483-B:1, II; State v. Sunapee Dam Co., 70 N.H.
22
458, 458-60, 50 A. 108 (1900); Hartford v. Gilmanton, 101 N.H. 424, 424-26, 146 A.2d 851
(1958)).
The Defendants argue that, since the public’s use of the public trust coastal lands has
evolved with the times, the trial court should have limited public use to those with the subjective
intent of digging clams or worms. However, the public trust coastal lands are not part of Sanders
Poynt: the public uses Sanders Poynt to access the public trust coastal lands. The public’s use of
Sanders Poynt for parking and access has not changed. The trial court properly focused on the
“definite, certain and particular line of use” the public has made of Sanders Poynt. Defs. Add. at
30 (quoting Vigeant, 130 N.H. at 409).
THE TRIAL COURT PROPERLY CONSIDERED LOCAL LAND USE ORDINANCES AND ENVIRONMENTAL REGULATIONS
The trial court properly considered local land use ordinances and environmental
regulations when it defined the scope of the easement. The Defendants point to the Restatement
(Third) of Property –Servitudes § 4.10 cmt. h (2000), for the proposition that courts should
consider “conservation and neighborhood preservation concerns” in determining the scope of
easements. While that comment in the Restatement is not binding on New Hampshire courts, the
trial court nevertheless considered those concerns.
The trial court did not ignore evidence concerning environmental damage. Rather, at the
bench trial, William Binnie began testifying about wetlands buffers. Tr.2 at 252:15:22. Jesurum
objected to relevance, and Defendants’ counsel argued:
And one of the reasons why we – why we contend that he Court should not find easement rights to park here is because the Court would be finding an easement right to park in a wetland buffer zone where parking would otherwise not be permitted.
Id. at 251:7-11.
23
The trial court explained it would allow evidence on environmental impacts, but only
through a person qualified to submit testimony on the topic. The trial court explained:
THE COURT: As far as I know, Mr. Binnie doesn’t work for the Department of Environmental Services nor is he an environmental lawyer or someone that is qualified to provide an opinion as what is necessary. So if you want to present testimony of that, feel free. If you know, I understand the legal argument you’re making, but you’re not going to get it through Mr. Binnie. MR. KING: Okay. THE COURT: He’s not qualified to provide me with that information even if he’s developed in the area. MR. KING: Okay.
Tr.2 at 251:12-22. The Defendants never disclosed an expert witness and did not present any
further evidence on the issue of wetlands buffers. Further, they did not address it in their
Requests for Findings and Rulings. See generally, Defs. App. at 242-49.
In fact, the only expert testimony on the topic was elicited by the Defendants, who cross-
examined Jesurum’s engineer:
Q Now, the area that you’ve designated as a gravel parking lot is, in fact, within a wetlands buffer; isn’t that true? A I believe that’s the case, yes. Q Construction is not permitted in wetlands buffers, right? A That’s not the case, no. Construction is permissible in a wetlands buffer as long as the appropriate and proper permits to do same are obtained.
Tr.1 at 48:14-22.
Even though the Defendants failed to offer further evidence about environmental
concerns, the trial court still considered their argument. The Court noted:
Finally, though they do not raise this argument in their post-trial brief, the Wentworth defendants suggested at the hearing that the alleged easement’s noncompliance with state and local land use ordinances and environmental regulations bars the public from using the easement. Though these concerns are valid, they do not defeat the public’s prescriptive easement rights in Sanders Poynt.
24
Order on Scope, Defs. Add. at 33. The record proves that the trial court considered the
environmental impacts, even after the Defendants abandoned the argument, and still concluded
the public had established prescriptive rights at Sanders Poynt.
THE TRIAL COURT MADE ALL REQUIRED FINDINGS TO PROPERLY DETERMINE THE SCOPE OF THE EASEMENT
The trial court considered two days of testimony, pleadings, and conducted a view to
develop a lengthy order on the scope of the easement. See Defs. Add. at 17-38 (Order on Scope).
The Defendants urge that an Alaskan case, Price v. Eastham,8 is an analogue demonstrating
when a trial court makes insufficient factual findings concerning the scope of an easement. See
Defs. Br. at 28-29 (quoting Price, 128 P.3d at 728). However, in the Price matter, the trial court
issued “a single sentence stating that the easement was to be sixteen feet wide and containing a
legal description of its general direction including the start and end points.” Price, 128 P.3d at
727. The trial court’s 18-page order in this case is altogether different from the Price case’s one-
sentence order.
The Defendants insist that the trial court should have found the original public
prescriptive easement’s accrual date and set it the use in stone, refusing to allow any new use.
Defs. Br. at 29. That argument’s flaw is twofold. First, the use of Sanders Poynt has always
been for beach access, while the public trust beach land abutting Sanders Poynt is, by law, open
to all lawful uses. See supra at 20-22 (describing public’s use). Second, no matter when the
prescriptive rights accrued—possibly before the American Revolution—more than twenty years
had passed where the public made open and notorious use of Sanders Poynt in the manner
described by the trial court. See supra at 4-5, 20-21 (describing early usage of Sanders Poynt).
8 The Defendants, in one portion of their brief, refer to the case as Price v. Eastman, and cite to 128 P.2d 725 (Alaska 2006). See Defs. Br. at 28. Comparing other citations in the brief, the proper caption and citation appears to be Price v. Eastham, 128 P.3d 725 (Alaska 2006).
25
THE TRIAL COURT PROPERLY FOUND THE PUBLIC HAS MADE CONTINUOUS AND UNINTERRUPTED USE OF SANDERS POYNT
The trial court properly ruled that the public was never excluded from Sanders Poynt.
The Defendants claim that construction projects in 1996 or 1997, 2004 and 2007 must have
proven interruption of use. The Defendants insist that “The Wentworth was engaged in major
construction projects on the occasions in question, filling the area with materials and equipment,
and thereby asserting a paramount right over the area.” Defs. Br. at 31 (citing Salminen v.
Jacobson, 83 N.H. 219, 220 (1928)).
The record belies the Defendants’ gloss. Jesurum testified that he recalled construction
debris at Sanders Poynt, but it never prevented the public from parking at Sanders Poynt. Tr.2 at
163:6-12. Jesurum, who had made use of Sanders Poynt since 1990, never saw the Defendants
restrict access to Sanders Poynt until they built the fence across its entrance. Id. at 162:7-10.
Jesurum observed piles of sand or dirt at Sanders Poynt and understood the Defendants were
using Sanders Poynt like the rest of the public. Jesurum testified “[I]t was joint access.” Id. at
162:17-163:5. Jesurum’s testimony is bolstered by the Defendant’ admission that Sanders Poynt
was used as a parking and staging area for local construction. Id. at 265:21-25. See also id. at
196:10-22 (WBTSCC LP employee testifying about paving company and painters for
surrounding houses using Sanders Poynt). As far as public records, the Town of Rye even
conducted construction at Sanders Poynt, installing a “Beach Access” sign, signs regulating
parking, and placing reclamation fill in the parking area.9 The factual record does not support
any finding that the Defendants acted in a way to oust the public from its easement.
9 The Defendants claim they placed the fill, which conflicts with the Town of Rye Selectmen’s Meeting Minutes. Compare Tr.2 at 255:18-22 with Jesurum Trial Exhibit 15, Pl. App. at 33 (Selectmen discussing placing reclamation fill in the parking area).
26
Had the Defendants performed an ouster in 1996 or later, they would still fail to have
interrupted the twenty-year prescriptive period, since the public has parked at Sanders Poynt to
make lawful use of the coastal public trust land since at least as early as the 1950s, per Mike
Flanigan. See supra at 20-21 (describing Flanigan testimony). Once the public’s prescriptive
rights accrued, they could not be recaptured by a private party. See State v. Tallman, 139 N.H.
223, 226, 652 A.2d 134, 136 (1994) (citing R.S.A. § 539:6 (1992)).
The Defendants’ are without factual basis when they claim interruption. Even if they
could have proved interruption—which they could not—the interruptions they suggest come
after the public’s prescriptive rights accrued at Sanders Poynt.
THE TRIAL COURT PROPERLY AWARDED JESURUM HIS ATTORNEY’S FEES UNDER THE SUBSTANTIAL BENEFIT DOCTRINE
A. The Trial Court Properly Exercised Jurisdiction.
The trial court properly exercised jurisdiction over Jesurum’s claim for attorney’s fees.
The trial court retains jurisdiction over “collateral, subsidiary or independent matters affecting
the case,” even after a perfected appeal. Rautenberg v. Munnis, 107 N.H. 446, 448, 224 A.2d
232, 233 (1966). See also State v. Looney, 154 N.H. 801, 804, 917 A.2d 1258, 1261-62 (2007)
(same). Treating fees and costs as collateral fits the general federal approach. Ray Haluch
Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Engineers & Participating
Employers, 134 S. Ct. 773, 781, 187 L. Ed. 2d 669 (2014) (referencing “the general practice of
treating fees and costs as collateral for finality purposes.”). See also E. Coast Sheet Metal
Fabricating Corp. v. Autodesk, Inc., No. 12-CV-517-LM, 2015 WL 4603463, at note 1 (D.N.H.
July 30, 2015) (handling fee requests before appeal saves judicial resources). In sum, the trial
27
court properly handled Jesurum’s request for fees, since it was collateral to the merits and fees
were not part of the Defendants’ Notice of Appeal.
The Defendants caused this procedural anomaly by filing a Notice of Appeal while the
issue of attorney’s fees was pending. Jesurum submitted his Motion for Reconsideration, asking
for a fee award, on September 8, 2015. The Defendants never objected, but filed their Notice of
Appeal on September 25, 2015. Even if fees were not a collateral issue, since the issue was
pending, federal appellate rules would have deemed the Defendants’ Notice of Appeal filed the
date of and after the entry of final judgment, after the fees were resolved. See Fed. R. App. P.
4(a)(2). Practically, that is what happened in this case. The trial court issued its order granting
the fee award. Defs. Add. at 37-40. The Defendants filed a Motion for Reconsideration of the
fee award. Defs. App. at 263-68. The trial court considered the Defendants’ argument in a
lengthy order. Defs. Add. at 42-47. The Defendants then filed an assented-to motion to amend
their Notice of Appeal. Defs. App. at 269. On appeal, the Defendants argue legal error, not that
the trial court failed to consider their arguments. Since the fee shift was fully litigated at the trial
court, it is appropriate for this Court to hear the issue now.
B. The Defendants, As Private Parties, Are Not Immune to the Substantial Public Benefit Fee Shift.
Jesurum is entitled to a fee shift because he litigated to obtain—and successfully
obtained—a substantial public benefit. The Defendants emphasize they are not public entities,
but that status does not shield them from the fee shift. Trial courts are empowered to shift fees
when appropriate. This Court has explained that power:
[W]hen overriding considerations so indicate, the award of fees lies within the power of the court, and is an appropriate tool in the court’s arsenal to do justice and vindicate rights.
28
Silva v. Botsch, 121 N.H. 1041, 1043-44, 437 A.2d 313, 315 (1981) (quoting Harkeem v. Adams,
117 N.H. 687, 690, 377 A.2d 617, 619 (1977)). The substantial benefit fee shift theory applies
“when a litigant’s action confers a ‘substantial benefit’ upon the general public.” Bedard v.
Town of Alexandria, 159 N.H. 740, 744, 992 A.2d 607, 611 (2010). The Defendants’ good or
bad faith is immaterial to that fee shift. Id. Rather, the fee shift turns on whether the plaintiff
promoted a public interest, regardless of whether the plaintiff is a private party or public official.
Id. at 746 (citing Silva, 121 N.H. at 1043-44, 437 A.2d 313).
The Defendants argue one piece of dicta for the premise that the defendant bearing the
fees must be a public entity. Defs. Br. at 32 (quoting Silva, 121 N.H. at 1044). However, this
Court has never limited the category of defendants susceptible to a fee shift under the substantial
benefit theory. Such an artificial limitation runs contrary to the private attorney general theory,
which the substantial benefit exception embodies. When considering a fee shift, this Court
focuses on “promotion of a public interest by a private party or a public official.” Bedard, 159
N.H. at 746 (citing Silva, 121 N.H. at 1043-44, 437 A.2d 313). The Court properly focuses on
vindication of a public right. The cadre of Defendants who risk a fee shift are consists those who
interfere with public rights, vindication of which amounts to a substantial public benefit.
Courts outside New Hampshire have applied the common law private attorney general
theory to award fees against private defendants. For example, in Hawaii’s Sierra Club decision,
the Supreme Court of Hawaii interpreted its common law private attorney general doctrine to
apply to private parties. Sierra Club v. Dep't of Transp. of State of Hawai'i, 120 Haw. 181, 225,
202 P.3d 1226, 1270 (2009), as amended (May 13, 2009) (“Moreover, we see no reason not to
apply the private attorney general doctrine to a private defendant.”). Similar to New
Hampshire’s substantial public benefit theory, Hawaii’s private attorney general doctrine focuses
29
on the public benefit conferred and on the plaintiff’s efforts to vindicate the public’s rights. The
three-prongs to the Hawaiian private attorney general fee shift are:
(1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, [sic] (3) the number of people standing to benefit from the decision.
Sierra Club, 120 Haw. at 218, 202 P.3 d at 1263 (quoting Maui Tomorrow v. BLNR, 110 Haw.
234, 244, 131 P.3d 517, 527 (2006)). The Sierra Club Court, citing Arizona law, noted that
“[a]warding [attorney's] fees against private defendants in appropriate cases will promote
important public rights to the same extent as awarding fees against governmental defendants.”
Sierra Club, 120 Haw. at 225 (quoting Arizona Center For Law in the Public Interest v. Hassell,
172 Ariz. 356, 837 P.2d 158, 173 (Ct.App. 1991)).
Similarly, A California Appeal’s Court interpreted its statutory private attorney general
statute to shift fees against private parties. Friends of the Trails v. Blasius, 78 Cal. App. 4th 810,
833, 93 Cal. Rptr. 2d 193, 208 (2000) (quoting Cal. Civ. Proc. Code § 1021.5 (West)) (awarding
fees to litigants based on statute that awards fees for “the enforcement of an important right
affecting the public interest….”) (ellipsis in original). Like the common law fee shifts in New
Hampshire and Hawaii, California law interpreting the statutory fee shift focuses on the
importance of the vindicated public right. Blasius, 78 Cal. App. 4th at 833, 93 Cal. Rptr. 2d at
208. The principle to be gleaned from the above examples is that the substantial public benefit
theory focuses on the vindicated public rights, not the private or public nature of the defendant.
Since the substantial public benefit fee shift focuses on the nature of the public benefit
conferred, the trial court properly applied the fee shift against the Defendants.
30
C. The Court Adequately Described Jesurum’s Public Benefit Motivation.
The trial court properly described Jesurum’s motivation to benefit the public. Jesurum
defended the public’s sole access to Little Harbor Beach, which is public trust land. This was
not a case about one man wanting to walk his dog across another’s property, as the Defendants
claim. Defs. Br. at 34. When Jesurum observed the Defendants installing the fence, he went to
the Town of Rye’s building inspector, who did not withdraw the building permit. Tr.2 156:19-
157:6. Jesurum and a group of the public then went to a Town of Rye meeting to stop
construction. Id. at 157:8-15. Jesurum went to the Town of Rye’s Board of Adjustment, which
disclaimed jurisdiction. Id. 157:17-23. Jesurum, through counsel, petitioned the New
Hampshire Attorney General to litigate the matter, but the Attorney General declined. Id. at
158:15-159:1. Jesurum was left with no option but to litigate the claim on his own. Id.
The pleadings and trial court motion practice support Jesurum’s testimony. Jesurum
brought the action “in his individual capacity and on behalf of the public. Defs. App. at 1, ¶ 1.
Jesurum named the State of New Hampshire as a defendant because:
it is the trustee of public trust land and is parens patriae of the public because it is the representative of all the citizens of the State of New Hampshire who enjoy the public prescriptive easement over the land which is the subject of this petition to access the public trust land of Little Harbor Beach.
Id. at 2, ¶ 5. When Jesurum asked the State of New Hampshire to bring the action, the Attorney
General’s Office declined to do so. Id. at 10, ¶ 35; Id. at 38.
The Attorney General’s Office strongly declined to exercise its powers to protect the
public’s rights. In moving to dismiss the claims against it, the State argued:
Petitioner names that State as trustee of public trust land and as parens patriae. The State’s exercise of its powers, however, under either the parens patriae or public trust doctrines is discretionary. As such, the Petitioner cannot force the State to utilize its discretionary power by naming the State as a party to this action.
31
Pl. App. at 3, ¶ 8. The State also argued “There is simply no requirement for the State to
undertake protecting its land, or public land when a private citizen so desires.” Id. at 4, ¶ 12.
Jesurum argued that, under the public trust doctrine, “the government ‘must act as a
fiduciary in its management of the resources which constitute the corpus of the trust.’” Pl. App.
at 9, ¶ 5 (quoting State v. Hess Corp., 161 N.H. 426, 432, 20 A.3d 212, 216 (2011), as modified
on denial of reconsideration (Mar. 22, 2011)). There can be no doubt that Jesurum’s public
prescriptive easement claims—and his efforts to involve the Attorney General as fiduciary of the
public trust—was central to his filing suit.
Even William Binnie, in a conversation with Robert Jesurum, acknowledged that
Jesurum was working in the public’s interest. See Tr.2 at 158:4-6. At trial, Jesurum testified that
Binnie stated the following:
And he asked me why I was doing this, what I was trying to – what was in it for me, why did I care about the little guy and Sanders Poynt. And the little I said was I felt that it was wrong of him to block access, and he added further that I was wasting my time and money. It would be very expensive; that he would keep it in court forever, he would appeal it, and I was wasting my time and money.
Id. at 158:4-11. Mr. Binnie testified after Mr. Jesurum and did not rebut Jesurum’s account of
the conversation.
The trial court appropriately found that Jesurum litigated in the public’s interest. The
trial court, focusing on the substantial public benefit theory, found that:
Plaintiff’s action conferred a substantial benefit on the public. Through this litigation, Plaintiff secured the public’s right to access the public beach at Little Harbor. Such access promotes the public policy in this state that coastal shorelands are held in public trust for the public’s use and enjoyment. See RSA 483-C:1, I-III; see also Opinion of the Justices (Public Use of Coastal Beaches), 139 N.H. 82, 89-90 (1994). Defendants’ obstruction of public access injured the public generally, and this Court’s judgment inures largely to the public’s benefit, rather than to Plaintiff’s benefit alone.
32
Defs. Add. at 39 (citing Frost v. Comm’r, New Hampshire Banking Dep’t, 163 N.H. 365, 379
(2012)).
The Defendants’ claim that Jesurum litigated this case for himself is belied by the record.
Rather than simply prove his twenty years’ use of Sanders Poynt, Jesurum procured affidavits on
the history of Sanders Poynt, called witnesses establishing decades of public use, and hired a
surveyor to identify the public’s parking area and the path to the public trust land. Jesurum has
borne significant cost to vindicate the public’s right to access Sanders Poynt.
The benefit was substantial. The Town of Rye’s coastline accounts for eight of New
Hampshire’s eighteen miles of coastline. Defs. App. at 142. Sanders Poynt is the only public
access to Little Harbor Beach. Id. at 125, ¶ 10. The importance of the public trust lands at
coastal beaches is codified by statute. R.S.A. § 483-C:1, I-III. The legislature has
recognize[d] and confirm[ed] the historical practice and common law right of the public to enjoy the greatest portion of the New Hampshire coastal shoreland, in accordance with the public trust doctrine subject to those littoral rights recognized at common law.
R.S.A. § 483-C:1, I (bracketed language added). As a matter of statutory law, Jesurum
vindicated public rights that the New Hampshire legislature carefully guards.
REQUESTED RELIEF
The Court should affirm the trial court’s findings and rulings because Robert Jesurum
proved a public prescriptive easement for parking and beach access at Sanders Poynt. Jesurum
litigated this case for the public’s benefit, which warrants an attorney’s fee shift under the
substantial public benefit theory. This Court should affirm the trial court and remand to enforce
the order compelling the defendants “to restore Sanders Point to the condition it was in prior to
33
