In New Hampshire, property disputes involving easement rights can be complex, particularly when they involve prescriptive easements— the right to use another's land after 20 years of adverse, continuous, and uninterrupted use. When a prescriptive easement is in play, there isn't a written document to reference like a recorded deed and surveyor's plan. A valid prescriptive easement is dependent on evidence of historical use over 20 years.
Evidence of historical use over 20 years presents a challenge of proof in the courtroom. The proponent of the easement will rely on witness testimony, photographs, videos, maps, change in land characteristics, monuments, and other facts needed to show the use of the easement over 20 years. Because no use can ever be exactly duplicated, it is inevitable that there will be some variation between the use by which a prescriptive easement was created and the use after its creation. The challenge lies in ascertaining the limits of permissible variation and producing persuasive evidence of the variation.
Permissible variation in a prescriptive easement is dependent on the nature and character of the use over 20 years. For example, there are inevitable changes in the placement of a seasonal dock because it is moved in and out of the water every year; variations in the storage of a boat; changes in use of a pathway caused by seasonal variations in weather and/or the natural water table; changes in how vehicles may be oriented for parking; variations in the amount of water a house may draw in a shared well, and even changes in the water level held by a dam. These examples show that variation in the scope of a prescriptive easement (e.g., frequency, intensity, placement, location, timing, or specific activities) does not necessarily prevent the establishment of a prescriptive easement. The court will examine the historical use of the easement over 20 years to ascertain the nature and characteristics of the variations.
One of the most significant cases regarding the limits of permissible variation of a prescriptive easement is Sanford v. Town of Wolfeboro, a legal battle that stretched over several years and addressed key issues about water levels in Lake Wentworth, a body of water controlled by a dam owned by the town. The case provides some guidance in assessing the limits of permissible variation in determining the scope of a prescriptive easement.
The Origin of the Dispute
The conflict began when the Town of Wolfeboro was sued by a property owner who claimed that the town’s control over the water level of the lake resulted in water flowing onto his property during part of the year. The dam in question, owned by the town, was used to regulate the water level. The property owner complained that the town had been using the dame in a way that caused extensive shoreline erosion, tree damage, property damage, and damages to the structures on his property.
In 1999, the New Hampshire Supreme Court ruled that the town had acquired a prescriptive easement over the plaintiff’s property. Noted above, a prescriptive easement occurs when someone uses another person’s land openly, continuously, and without permission for at least 20 years. In this case, the court ruled that the town’s actions in raising the water level to the top of the dam, thus flooding the plaintiff’s land during part of the year, were protected by a prescriptive easement.
The Scope of the Prescriptive Easement
While the court initially ruled in favor of the town’s right to raise the water level, it found that the trial court did not define the scope of the easement. The case was remanded for further findings.
On remand, the trial court reviewed evidence related to the “historical and customary use of the dam,” ultimately determining that the town's right to raise the water level was linked to the original, historical usage of the dam, which fluctuated based on weather patterns and the needs of the dam owner. The court concluded that the easement allowed the town to raise the water level to the top of the dam, but only within the bounds of historical practice.
The Plaintiff’s Appeal
The plaintiff disagreed, arguing that the water level should be limited to certain times of the year, based on historical use. The Supreme Court, however, disagreed. It reaffirmed that the scope of a prescriptive easement is defined by the “character and nature of the use” that created it. Since the town had used the dam to raise the water level as needed, and such use had been continuous and uninterrupted for decades, the Court ruled that the town’s right to do so remained intact.
Legal Precedents and Court’s Reasoning
The Court drew on previous rulings, such as the 1860 case Winnipesaukee Lake Company v. Young, which established that prescriptive rights could be exercised at the pleasure of the easement holder, as long as they were uninterrupted. The Court noted that, while the scope of a prescriptive right of way (e.g., crossing land) is usually clear, the scope of an easement to flow water onto land is more complicated due to the fluctuating nature of water and weather conditions.
Sanford v. Town of Wolfeboro, underscores the complexities of determining the scope of prescriptive easements, particularly when they involve the flow of water. It also highlights the importance of historical and customary use in determining the extent of such rights. For property owners and municipalities alike, understanding these nuances is crucial when dealing with prescriptive easement disputes.
Apis Law is presently litigating a complex prescriptive easement dispute involving the right to use a dock and beach on a public body of water. Please contact Apis Law if you believe you need assistance in assessing disputed real estate rights involving easements.
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