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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 ___________________________ Carroll No. 2008-750 JAMES BURKE & a. v. ARTHUR PIERRO & a. Argued: September 10, 2009 Opinion Issued: December 16, 2009 Orr & Reno, P.A., of Concord (Emily G. Rice and Jeremy D. Eggleton on the brief, and Mr. Eggleton orally), for the plaintiffs. Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the brief and orally), for the defendants. CONBOY, J. The defendants, Arthur and Rose Pierro and Carmine and Maureen Pierro (Pierros), appeal an order of the Superior Court (Fitzgerald, J.) finding that the Pierros trespassed upon land owned by the plaintiffs, James and Patricia Burke (Burkes), and enjoining them from using the Burkes' beach for their recreational use. We affirm. The record evidences the following facts. The Burkes own a home on Deer Cove Road in Ossipee, which overlooks Lake Ossipee. Their property includes a narrow strip of beach in front of their home on the other side of Deer

Cove Road bordering the lake. The Burkes' chain of title originates with Francis H. Lord (Francis Lord), who acquired title in 1871 to 120 acres of property in Ossipee bounded on the east by Lake Ossipee (known as "Deer Cove"). Between 1900 and 1909, Francis Lord conveyed thirteen parcels of land, including the Burkes' parcel, fronting the lake. The deed from Francis Lord to William Cowan, the Burkes' predecessor in title, specified conveyance of the property with "equal rights with others buying land of said grantor to the shore and shore road, to the spring point for water, and to use the roads to the Main road, not obstructing the view of said Lake nor the passage on said shore or road." All deeds to the Deer Cove lots fronting the lake contain similar "equal rights" language. In addition, Francis Lord conveyed two back lots from his remaining property, the deed to one of which contained similar "equal rights" language. The deeds to the Pierros' lots, which are near, but not on, the lake, do not include the above-quoted "equal rights" language. The Pierros' lots are among a number of "back lots," located behind the beachfront lots, and originally conveyed by Francis Lord's son, Francis S. Lord (Frank Lord), who inherited his father's remaining interest in Deer Cove in 1912. Since 1967, when they purchased one of the back lots containing a cottage, Arthur and Rose Pierro have used the beach in front of the Burkes' home. In 1980, they purchased two nearby back lots. In 1985, they conveyed one of those lots to Carmine and Maureen Pierro. In 1983, the Town of Ossipee created a tax map, which designated the beach running along Deer Cove Road as Lot 49, a parcel distinct from the beachfront lots. Unable to identify the owner of the lot, the Town taxed Lot 49 to "owners unknown" for two years. In 1987, the Town's tax collector conveyed the parcel to the Town. The beachfront lot owners disputed the Town's ownership because they believed their deeds conveyed "equal rights" to use the beach. However, rather than challenge the Town's taking of Lot 49, the beachfront owners formed the Deer Cove Shorefront Owners' Association (DCSOA) for the purpose of taking title to the beach lot. In 1993, the Town conveyed the property to Florence Banfill, who immediately quitclaimed her interest in the beach lot to the DCSOA. Certain back lot owners disputed Banfill's ownership of Lot 49, and brought a quiet title action against the DCSOA in 1996. The Pierros declined to participate in the lawsuit. In that action, the trial court found that: Banfill's deceased husband obtained title to Lot 49 in 1955; the Town properly acquired Lot 49 through tax deed in 1987; and the lot was properly conveyed to Banfill in 1993 and thereafter to the DCSOA.

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In 1998, the DCSOA "surveyed" Lot 49 and quitclaimed to each beachfront property owner the beach area in front of the owner's property. As a result, Donald Meader, the Burkes' predecessor in title, obtained ownership of the section of beach in front of his home. In 2002, Meader commenced this action for trespass, and to permanently enjoin the Pierros from entering his property. He subsequently sold his property to the Burkes, who assumed Meader's position in this litigation. After a three-day bench trial, the trial court found there was no equitable servitude on the Burke property that permitted the Pierros to use the beach in front of the Burkes' home. The court also found that the Pierros failed to prove that they were entitled to a prescriptive easement. Accordingly, the trial court ruled that the Pierros had trespassed upon the Burkes' land and enjoined them from using the beach. The Pierros filed a motion to reconsider, which was denied. This appeal followed. We will uphold a trial court's equitable order unless it constitutes an unsustainable exercise of discretion. Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 46 (2007). Under this standard, we review only whether "the record establishes an objective basis sufficient to sustain the discretionary judgment made." State v. Lambert, 147 N.H. 295, 296 (2001). Unless a party establishes that such a ruling was clearly untenable or unreasonable to the prejudice of the party's case, it will not be disturbed. Id. "We review a trial court's application of law to facts de novo." Blagbrough Trust, 155 N.H. at 33. "We accord deference to the trial court's findings of historical fact, where those findings are supported by evidence in the record." Id. The Pierros assert several theories in support of their claim that the beach lot is subject to an implied servitude that would allow them use of the beach for recreational purposes. They argue that Francis Lord and Frank Lord created a common scheme of development with access to a common beach lot for the benefit of all beachfront and back lot owners. They also argue that a servitude should be implied from prior use and based on necessity. Finally, in addition to their implied servitude arguments, the Pierros assert that they obtained a prescriptive right to use the beach. We first turn to the Pierros' assertion of entitlement to an equitable servitude implied from a common scheme of development. "[A]n equitable servitude is a property interest in a burdened land, appurtenant to the benefited land," which rests on a determination that the original promisor and promisee intended to benefit a particular lot. Traficante v. Pope, 115 N.H. 356, 359 (1975). An equitable servitude may arise when a "general scheme of development . . . binds an owner who acquired the land with notice of a restriction on it." Arnold v. Chandler, 121 N.H. 130, 134 (1981) (quotation

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omitted). "If an original owner has adopted a general scheme for development or subdivision of a certain tract or parcel of land and has inserted in his deeds of lots therefrom uniform restrictions intended by him and by the purchasers to be imposed on each lot for the benefit of all other lots included in the general plan, reciprocal servitudes are thereby created on all the lots in the development." Bouley v. City of Nashua, 106 N.H. 74, 77-78 (1964). Such intent to create a general scheme of development can be "ascertained from the language of the instruments, the conduct of the parties, and the surrounding circumstances." Id. at 78. Here, the trial court found that Frank Lord, as successor to Francis Lord, did not continue a common scheme establishing a lake community with a common beach lot. It found, rather, that Frank Lord's conveyances constituted a separate development scheme that did not include beach access for the back lot owners. The trial court therefore concluded that the appurtenant easement benefits only the beachfront owners who purchased land from Francis Lord, not those whose lots were conveyed by his son, Frank Lord. We agree. We begin our analysis by examining the language of the deeds. "The interpretation of deeds is ultimately for this court; however, our determination of the terms of a deed is based on the parties' intentions as properly found by the trial court." Robbins v. Lake Ossipee Village, Inc., 118 N.H. 534, 536 (1978). "In construing the language of a deed, the finder of facts must place himself as nearly as possible in the position of the parties at the time of the conveyance and gather their intention in light of the surrounding circumstances." Id. at 536 (quotation omitted). The trial court's finding that Francis Lord intended to create a servitude for the sole benefit of beachfront lot owners who purchased from him is amply supported by the record. The language in the deeds from Francis Lord referred only to "others buying land" from him. The deeds gave these specific lot owners "equal rights with others buying land of said grantor to the shore and shore road." Nothing in this language indicates that Francis Lord intended to benefit anyone other than those to whom he conveyed property, which includes the beachfront lot owners and one back lot owner. Nor does the evidence in the record compel a finding that, absent such language in the deeds, Francis Lord intended to create a servitude to benefit any lot owners other than those who bought land from him. To support their assertion that Francis Lord intended to create a servitude for the benefit of the back lots, the Pierros rely, in part, upon the fact that in the deed to one such lot, he included the same "equal rights" language as was contained in the beachfront lot deeds. The language in one back lot deed is insufficient to establish that Francis Lord intended all of the back lots to have the same rights as the beachfront lots. See Sun Valley etc., Co. v.

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Watts, 98 N.H. 428, 433 (1954); Carroll v. Schechter, 112 N.H. 216, 219 (1972) ("[T]he mere fact that a grantor imposes restrictions in part of a tract of land which he is selling does not necessarily lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land."); cf. Varney v. Fletcher, 106 N.H. 464, 466-67 (1965) (implying an equitable servitude where 100 lots were laid out on a series of recorded plans and all but the fifteen or eighteen lots still owned by the real estate developer were conveyed with the same restrictions). Although the Pierros argue that the deeds from Frank Lord demonstrate his intent to expand his father's scheme for the benefit of the back lots, the deeds themselves contain no such language. Nor do the deeds from Frank Lord incorporate by reference his father's common scheme of development. See Regan v. Hovanian, 115 N.H. 40, 42-43 (1975) (holding that implied easement arose because each deed in chain of title referenced community plan); McCleary v. Lourie, 80 N.H. 389, 392 (1922) (where each deed specifically referenced plan, plan became essential part of each conveyance). Further, the Pierros fail to point to any surrounding circumstances or any conduct by Frank Lord or by those to whom he conveyed lots to demonstrate any intent that the back lots were subject to the same equitable servitude as the beachfront lots. The Pierros next argue that they obtained an implied servitude under theories of prior use and necessity. See Restatement (Third) of Property (Servitudes)

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