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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2005-003 MICHAEL E. GILL & a. v. STEPHEN G. GERRATO & a. Argued: May 10, 2005 Opinion Issued: August 3, 2006 Backus, Meyer, Solomon & Branch, LLP, of Manchester (Steven Solomon on the brief and orally), for the plaintiffs.

Anthony S. Hartnett, of Dover, by brief and orally, for defendants Stephen G. Gerrato, Phyllis G. Gerrato, Andre M. Birse, Cynthia L. Birse, and John M. Cots.

GALWAY, J. Defendants Stephen G. and Phyllis G. Gerrato, Andrew M. and Cynthia L. Birse, and John M. Cots appeal a decision of the Superior Court (Morrill, J.) ruling that the plaintiffs, Michael E. and David Gill, have an

easement to use a lane that runs through the defendants' properties to the Gills' property. The Gills cross-appeal the superior court's ruling that no public way existed over the lane. We reverse in part and remand. The record supports the following facts. The lane at issue extends almost perpendicularly from Route 151, formerly known as Old Post Road or Post Road, in Greenland. The Cots property, which is the smallest of the three properties owned by the defendants, sits at the corner of the lane and Route 151. The Birse property borders both Route 151 and the lane by wrapping around part of the Cots property. Similarly, the Gerrato property borders both Route 151 and the lane by wrapping around part of the Birse property. In contrast, the Gill property does not border Route 151. The Gill property shares its borders with, among other things, the Gerrato property and the lane. The Gills petitioned for a declaratory judgment that they have an easement to use the lane for vehicular and pedestrian access to Route 151 and the right to run utility lines to their land. They also requested a ruling that the lane was a public way and that buildings located on the Cots property encroached on it. Regarding the easement, the trial court found the following facts. In 1956, the Birses bought a tract of land that included what is now all of the defendants' properties. At that time, the Gill property was owned by the Stearnses, who used it to pasture cows. In 1962, the Birses conveyed a small tract of land to the McGraths. The conveyance was subject to: An easement right of way for all purposes of ingress and egress running from Old Post Road to land of the Birses; the said easement measures approximately 28.81 feet in width along Old Post Road and runs between two stone walls by Parker land on the West and McGrath land on the East. When this action was commenced, Cots owned the McGrath property, and the defendants concede that Cots' deed also contained the same reservation. In 1975, Barbara Birse, then the sole owner of the Birse property, conveyed a large portion of her land to the Fosses. This is now the Gerrato property. The conveyance stated: See Mylar Plan approved by the Town of Greenland Planning Board at hearing dated November 20, 1975 right of access for Stearns [who owned the Gill property at that time], McGrath, Birse, and Henry and Sheila Foss over the so-called Stearns right of way from Post Road on said Mylar Plan, being binding on all

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their respective heirs, executors, administrators and assigns. Also the McGrath house to remain standing covering a small part of this right of way. The subdivision plan referenced in the deed as the Mylar Plan contained language similar to the deed, stating: The Stearns right-of-way on the south end of McGrath, Birse land & south end of land being acquired by H&S Foss from Birse, & land of George Stearns et al as running from Post Road to & including Stearns property is dedicated as a private right-of-way for continuous use of all the property owners named above & is subject to Greenland Zoning Regulations & is binding also on all the administrators, executors, heirs & assigns of the above property owners. The McGrath home to remain standing as presently situate on a small part of this right-of-way without and [sic] charge of hindrance by anybody, free of any charges of any kind. Pursuant to the language in the above documents, the trial court found that all of the defendants' deeds contained references to a right of way benefiting the Stearns property, which the Gills now own. Based primarily upon these facts, the trial court ruled that the Gills had an easement to use the right of way for all reasonable residential and agricultural uses and to install utility services. Regarding the public way, the trial court found the following facts. In 1713, the Commissioners of Portsmouth conveyed to a private landowner what is now the Gills' land. That conveyance used the lane as a boundary line, describing the lane as the road extending from the "high Road," now Route 151, to Weeks Mill. Subsequent conveyances made around that time also used the road between Route 151 and Weeks Mill both as a boundary line and as a means to access the properties. In particular, a deed from 1757 delineated a boundary line as "bounded Westerly on a highway leading to Weeks's old Saw mill So Called." The trial court took a view of the site and found that in a nearly straight line from the terminus of the lane sits the remnants of the former Weeks Mill. Based upon these facts, the trial court concluded that the lane was used as a public road during the 1700s; however, the court did not expressly find how such a road was established. The trial court also found that public use of the road ended some time in the late 1700s or early 1800s and stated that "inconsistent public use is insufficient to create public rights." The court's final conclusion was that, if a public road had ever been established, it no longer existed, stating, "It is unfair, I think, to saddle the Town of Greenland and abutters to the existence of road [sic] that was probably abandoned before New Hampshire's Constitution was written."

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On appeal, the defendants argue that the express easement from the Birses to the McGraths in the 1962 conveyance, and then from the McGraths to Cots, was not intended to benefit the Gill property and should not do so now. The defendants also challenge the right of way that the planning board created in the Mylar Plan. They argue that the planning board's action of creating the private right of way to benefit the Gill and other properties was beyond the scope of the planning board's authority. Finally, the defendants appeal an order issued by the trial court awarding costs to the Gills. The Gills cross-appeal the trial court's ruling that the public way over the lane established in the 1700s no longer exists. The common-law period for prescriptive establishment of a road was twenty years of public use, the Gills argue, which the trial court's findings support. Once the road existed, the Gills conclude, only a formal proceeding to discontinue the road could have ended the road's public use. After the appeal was filed, the defendants notified the court that defendant Cots sold his lot to Andrea R. Gordon, Michael D. Gordon, Richard M. Gordon, Carmen C. Gordon, and Peter R. Gordon. The Gordons have been joined as parties to this appeal. We will continue, however, to refer to their property as the "Cots property." I. Easement We begin our analysis by addressing the trial court's ruling that the Gills have a right of way over the defendants' properties to access Route 151 for all reasonable residential and agricultural uses, and to install utility services. "The interpretation of a deeded right of way is ultimately a question of law for this court to decide by determining the intention of the parties at the time of the deed in light of surrounding circumstances." Flanagan v. Prudhomme, 138 N.H. 561, 573 (1994). If the terms of the deed are clear and unambiguous, those terms control how we construe the parties' intent. Arcidi v. Town of Rye, 150 N.H. 694, 701 (2004). Thus, "[w]hen the language of the deed is clear and unambiguous, we need not consider extrinsic evidence." Heartz v. City of Concord, 148 N.H. 325, 331 (2002). The defendants contest the trial court's finding of an easement, arguing that the easement created in the deed from the Birses to the McGraths in 1962 was not intended to benefit the Gill property. The trial court concluded, based upon our holding in Heartz v. City of Concord, 148 N.H. at 331, that the deed language created an express easement for the Gills' benefit over the defendants' properties.

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In Heartz, an easement existed over the petitioner's property to allow access to a building on an adjacent parcel, located at 66

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