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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. 2008-776 RICHARD MANSUR & a. v. DAVID MUSKOPF & a. DAVID MUSKOPF & a. v. SWALLOW POINT ASSOCIATION Argued: June 16, 2009 Opinion Issued: August 5, 2009 Normandin, Cheney & O'Neil, PLLC, of Laconia (Philip P. Bonafide on the brief and orally), for the petitioners, Richard Mansur, Susan Mansur and Clark Mansur. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris and Coleen M. Penacho on the brief, and Mr. Harris orally), for the respondents, David Muskopf and Mary Allain. Third-party defendant, Swallow Point Association, filed no brief.

BRODERICK, C.J. The respondents, David Muskopf and Mary Allain, appeal an order of the Superior Court (Houran, J.) ruling that an easement, benefiting non-waterfront property owned by petitioners Richard and Susan Mansur, extends onto the shoreline of their property along Lake Winnipesaukee. We affirm. The following facts were recited in the trial court's orders or appear in the record. This appeal involves three lots in the Swallow Point subdivision in Moultonborough, two of which are contiguous. Swallow Point Corporation was the developer of the subdivision, and, thus, at one time was the common owner of the three lots at issue. The petitioners own lot 20, the respondents own lot 18, and Swallow Point Association (Association), the third-party defendant, owns a parcel known as the Reserved Lot. The eastern boundary of lot 18 abuts the western boundary of the Reserved Lot, and the southern boundary of both lots constitutes shoreline of Lake Winnipesaukee. Lot 20 is a nonwaterfront parcel and does not abut either the Reserved Lot or lot 18. Rather, it is located in the inland portion of the subdivision, along a subdivision road that leads to the Reserved Lot. The controversy before us centers upon the scope of an easement affording lot 20 access to the lakeshore via the Reserved Lot. The subdivision was created in the 1950s, and the present dispute is caused by a history of discrepancies regarding boundary lines set forth in a subdivision plan, subdivision deeds, and actual physical monuments and markers of various subdivision lots. For purposes of this litigation, the chain of title for lot 20 begins with a deed dated July 30, 1958, from the developer to Joseph and Helen Ceriello. The Ceriello deed specifically includes an easement right providing access to the lake: Together with the right and privilege of using said Swallow Point Drive to approach the Reserved Lot, so-called, as shown on said plan, as well as the right and privilege to cross and re-cross said Reserved Lot in order to gain access to the shore of Lake Winnipesaukee and the right to use the said shore, in common with others; said shore frontage of said Reserved Lot being 75.00 in width, more or less, as shown on said plan. The "plan" referenced in the Ceriello deed is the 1956 "Plan of Subdivision of Swallow Point" prepared by H.D. Trojano and recorded at the Carroll County Registry of Deeds on July 20, 1957 (the Trojano plan). This plan shows the Reserved Lot as having "75' +/-" of frontage on the lake, from a concrete monument at the southeast corner of the lot. Lot 20 was later conveyed to the petitioners in 1997, by deed containing the same easement language.

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For purposes of this litigation, the chain of title for lot 18 begins with a deed dated December 15, 1958, from the developer to Howard and Mary Andrews. The Andrews deed conveys the lot by metes and bounds description only, without reference to the Trojano plan. The same metes and bounds description was used in lot 18's chain of title through the 2005 deed that conveyed the property to the respondents. Unfortunately, the metes and bounds measurement of 219.1 feet for the easterly boundary abutting the Reserved Lot does not conform to the measurement of 238.78 feet for the same boundary line as shown in the Trojano plan. The chain of title for the Reserved Lot for purposes of this litigation begins with a deed dated August 31, 1961, from the developer to all of the individuals who owned subdivision lots at that time. The Reserved Lot deed describes the parcel by referring to the Trojano Plan. That plan describes the Reserved Lot as having seventy-five feet more or less of lake frontage and having a westerly boundary, abutting lot 18, that measures 238.78 feet. The lot description remains the same in the deed that conveyed the Reserved Lot to the Association in 1997. In sum, in 1957, the developer subdivided the Swallow Point property. In July 1958, the developer conveyed lot 20, the lot now owned by the petitioners, with an easement right to cross and recross the Reserved Lot to access the lake and to use the Reserved Lot lake shore. The deed described the lot by referring to the Trojano plan, with the shoreline measuring seventy-five feet, more or less. At this point, the developer still owned the Reserved Lot, as well as abutting lot 18, which is the lot now owned by the respondents. In December 1958, the developer conveyed lot 18 to the Andrews by deed solely describing the land by metes and bounds and without reference to the Trojano plan. At this point, the developer still owned the Reserved Lot and had not conveyed any ownership interest in the Reserved Lot to individual members of the Association. Finally, in August 1961, the developer conveyed the Reserved Lot, the lot now owned by the Association, by deed specifically referencing the Trojano plan. The trial court found, and no one disputes, that "[a]ll deeds at issue are of record, and no question is presented as to the validity of any deed or the status of any person or entity in any relevant chain of title as a bona fide purchaser." Precipitating the present dispute, some of the shoreline lots in the subdivision located west of lot 18 were actually developed inconsistently with the shoreline boundary markers outlined in the Trojano plan. The Trojano plan was recorded in 1957, and at some later point, the developer placed "white stake" boundary markers along a portion of the shoreline that were located substantially east of the shoreline boundaries identified in the recorded plan. Prior to 1960, certain properties were developed with reference to the white stake monuments and not with reference to the Trojano plan. Consequently, if

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the boundary lines identified in the Trojano plan were enforced in this area of the subdivision, property lines would run through the middle of dwellings and would isolate other dwellings from the utilities appurtenant to them. As a result of litigation, a court-approved consent decree was entered in 1991, and the boundary lines for certain lots in the subdivision were reestablished, including the boundaries between lots 17 and 18. The reestablished boundaries reflected the actual location of shoreline monuments that had been in place for more than twenty-five years at that point. After the respondents purchased lot 18 in 2005, they began constructing a new house. The petitioners filed suit, alleging that the new building encroached on the Reserved Lot. The respondents, however, claimed ownership of the disputed land. They also sought a declaratory judgment against the Association to determine the status of the boundary line between their abutting lots. The trial court consolidated the cases. It ruled that under the easement clause in the 1958 Ceriello deed, the petitioners owned an easement to cross and recross the Reserved Lot and access seventy-five feet more or less of the lake shore, as measured from the concrete monument at the southeast corner of the Reserved Lot. The trial court also resolved the location of the shared boundary line between lot 18 and the Reserved Lot, which reduced the seventy-five-foot shoreline of the Reserved Lot as described in the Trojano plan by approximately forty-one feet. Thus, according to the trial court's order, while the respondents indeed own the land they had claimed to own, forty-one feet of their shoreline is subject to the seventy-five-foot easement owned by the petitioners. The respondents filed a motion to reconsider, which the trial court denied. The respondents appealed. The trial court's conclusion about the location of the boundary line between the Reserved Lot and lot 18 is not challenged. Additionally, while the trial court issued a ruling regarding petitioner Clark Mansur, who owns a non-waterfront lot in the subdivision, this ruling is not challenged and plays no part in this opinion. The respondents argue that the trial court erred in ruling that the petitioners' easement extends beyond the thirty-four-foot shoreline of the Reserved Lot to include forty-one feet of their lake frontage. They contend that once the trial court determined that the actual monuments controlled the shoreline boundary line between their lot and the Reserved Lot, the scope of the petitioners' easement must likewise be limited. According to the respondents, confining the easement to the shoreline of the Reserved Lot comports with the intent of the parties who created the easement and with the rule that when discrepancies arise, actual monuments prevail over measurements described in a deed. We disagree. "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

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time of the deed in light of surrounding circumstances." Soukup v. Brooks, 158 N.H. __, __ (decided June 12, 2009) (quotation omitted). "If the terms of the deed are clear and unambiguous, those terms control how we construe the parties' intent." Id. (quotation omitted). As a question of law, we review the trial court's interpretation of a deed de novo. See Tanguay v. Biathrow, 156 N.H. 313, 314 (2007). The easement language in the Ceriello deed is clear. It grants a right to cross and recross the Reserved Lot, including the right to "gain access to the shore of Lake Winnipesaukee and the right to use the said shore, in common with others." It identifies the Reserved Lot as that parcel shown on the Trojano plan. Both the recorded deed and the recorded plan explicitly identify the shoreline as measuring seventy-five feet in width, more or less, and the plan shows the seventy-five feet as beginning at a concrete monument that marks the southeast boundary of the Reserved Lot. At the time the easement was created, the developer owned both the Reserved Lot and abutting lot 18. Therefore, we conclude that the parties creating the easement plainly intended for the scope of the easement to include the seventy-five-foot shoreline of the Reserved Lot as it existed at that time. The respondents contend that the seventy-five-foot shoreline measurement for the Reserved Lot identified in both the Ceriello deed and the Trojano plan conflicts with the actual monuments that separate their lot from the Reserved Lot. They argue that although the Trojano plan describes the distance between the southeast and southwest monuments for the Reserved Lot as measuring seventy-five feet, in reality the monuments in the ground established a thirty-four foot shoreline for the Reserved Lot, and those monuments control the intended scope of the easement. This position lacks merit. The actual monuments relied upon by the respondents did not have any legal import until the developer conveyed lot 18 in December 1958. In July 1958, when the developer first conveyed the easement in the Ceriello deed, the developer still owned both the Reserved Lot and lot 18, and, thus, at that time, the boundary line between them was established by the Trojano Plan. It was not until six months later, when the developer conveyed lot 18 to the Andrews by metes and bounds, rather than by referring to the boundaries established in the Trojano plan, that the boundary line separating the two lots effectively changed. In conveying lot 18 to the Andrews, the developer deeded a portion of the Reserved Lot as identified on the recorded Trojano plan. While this conveyance altered the boundary line between the Reserved Lot and lot 18 as identified on the Trojano plan, it did not alter the established recorded easement benefiting lot 20, the Ceriellos' lot. As the trial court correctly ruled, the developer could only convey the property to which it had title at the time. See 17 C. Szypszak, New Hampshire Practice, Real Estate

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