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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 ___________________________ Grafton No. 2008-749 WILLIAM SOUKUP & a. v. ROBERT BROOKS & a. Argued: February 19, 2009 Opinion Issued: June 12, 2009 Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P. Spinella, Jr. on the brief and orally), for the petitioners. Stan B. Brinkman, of Woodsville, by brief and orally, for the respondents. HICKS, J. The respondents, Robert and Kristine Brooks, appeal orders of the Superior Court (Bornstein and Burling, JJ.) granting summary judgment to the petitioners, William and Kathy Soukup, and denying summary judgment to the respondents, in this action to quiet title to property of the petitioners over which the respondents claim an easement. We reverse and remand. The following facts were recited in the trial court's orders or appear in the record. This case involves three contiguous properties, two in Lisbon and the third in Lyman (the Lyman lot). The first two properties have direct road access, but the Lyman lot is landlocked. All three properties were at one time owned by Andrew S. Dibner. On January 21, 1992, Dibner conveyed the then-

undivided parcel containing the three lots to himself as trustee of the Rock Cliff Realty Trust (Rock Cliff). Although later conveyances of the lots to the parties were technically made by Rock Cliff and executed by Dibner as trustee thereof, the parties and the trial court refer to these conveyances as having been made by Dibner and, for consistency, we will do the same. Rock Cliff filed a subdivision plat (the plan) dividing the property into several lots, and later subdivided one of those lots into two along the Lyman/Lisbon town line. The plan was approved by the Lisbon Planning Board and recorded. It depicts an "EXISTING EASEMENT" running through the three lots at issue. On September 15, 1995, Dibner conveyed the middle lot to the Brookses (the Brooks lot), reserving the following easement (the Dibner right of way): EXCEPTING, SAVING and RESERVING, as an appurtenance to the remaining land of the grantor situate in said Town of Lyman, the perpetual RIGHT and EASEMENT for all purposes, including but not limited to the passage of motor vehicle, pedestrian and animal traffic to and from said remaining land of the grantor situate in said Town of Lyman, and the construction, grading, maintenance and repair of a road, drainage, culverts, ditches, slopes and embankments, and the installation, maintenance and repair of electrical and telephone utilities above and under the ground, all upon (1) that strip of land approximately sixty (60) feet in width shown on the aforesaid plan [(the plan)] as "Existing Easement" running from the Brooks Road across Lot No. R4-5 shown on said plan through the within-described premises and through said remaining land of the grantor situate in said Town of Lyman . . . . The lot referred to as Lot No. R4-5 is the lot now owned by the Soukups (the Soukup lot), which was at that time still owned by Dibner. Thus, as noted by the Trial Court (Bornstein, J.), the Dibner right of way "is described as extending across both the Soukup and [Brooks] lots, even though as the owner of the Soukup lot, Mr. Dibner did not need a right of way to cross over it." On June 12, 1996, Dibner conveyed the Lyman lot to the Brookses, "together with" the Dibner right of way. The Brookses conveyed the Lyman lot to Robert Brooks' parents in 2002, but reacquired it after this suit was filed. Thus, the Brookses currently own both the Brooks and Lyman lots. On June 18, 1999, Dibner conveyed the Soukup lot to the Soukups. The deed to the Soukups contains no reference to the Dibner right of way.

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The Soukups filed a petition to quiet title and for declaratory and injunctive relief against the Brookses, asserting that the Brookses are not entitled to make use of the alleged right of way over their property. The Brookses raised defenses of equitable estoppel and unclean hands and asked the court to declare that they "have claim of right and right to use the `Dibner Right-of-Way' over the Soukup Lot within the scope of the original Dibner Lot language." Both parties moved for summary judgment, which the Trial Court (Burling, J.) denied, finding that genuine issues of material fact existed. The parties moved for reconsideration, asserting their agreement on the relevant facts, except those related to the Brookses' affirmative defenses, and claiming that only a legal question remained at issue. The Trial Court (Burling, J.) then granted summary judgment in favor of the Soukups, ruling: (1) "to the extent Mr. Dibner may have attempted to create an easement over the Soukup lot for his own benefit as the owner of the Lyman lot," such an easement was unnecessary because he owned the Soukup lot and, thus, any purported easement was "extinguished through merger with his ownership interest"; and (2) "to the extent the Lyman lot, as the dominant estate, has easement rights over the [Brooks] lot, the servient estate, that easement has extinguished as well[]" because the Brookses own both lots. The Brookses filed a motion for further hearing to address their defenses of unclean hands, unjust enrichment and various theories of estoppel. The Trial Court (Bornstein, J.) granted summary judgment in favor of the Soukups on each of these defenses. The Brookses now appeal. In reviewing the trial court's . . . grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the nonmoving party. If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. We review the trial court's application of the law to the facts de novo. Bel Air Assocs. v. N.H. Dep't of Health & Human Servs., 158 N.H. 104, 107 (2008) (quotation omitted). On appeal, the Brookses argue that the trial court "erred in finding that Dibner could not create or reserve an easement over his own property as [it] completely ignored the subdivision plan creating the lots and easements in contention." The Brookses assert that "this is a clear case of the exception to the Doctrine of Merger" that applies "when land is properly subdivided according to a recorded plan."

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The Brookses acknowledge the general rule of merger, but assert an exception to the rule "[w]hen an easement is created in accordance with a common, general plan or subdivision plan . . . . Under such circumstances, a valid easement is created but held in abeyance pending an out conveyance. Such an easement does not merge, nor is it invalid due to merger." They cite Allen v. Nickerson, 155 P.3d 595 (Colo. Ct. App. 2006), in which the court concluded that "a property owner who subdivides property with a common plan may create servitudes, including easements, burdening or benefiting the subdivision that arise upon the conveyance of individual parcels, and those servitudes are binding upon the subdivider owner and inure to purchasers with notice." Allen v. Nickerson, 155 P.3d at 600. The Soukups challenge this argument on a number of grounds, including: (1) that it was not argued before the trial court; (2) that "nothing in [New Hampshire] jurisprudence supports such a `springing' interest;" (3) that in order to have a common plan there must be reciprocal servitudes, benefiting and burdening all of the lots, which is not the case here; (4) that there is no injustice here that would justify the imposition of an implied servitude under Restatement (Third) of Prop.: Servitudes

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