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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. 2010-170

APPLETREE MALL ASSOCIATES, LLC v. RAVENNA INVESTMENT ASSOCIATES & a. Argued: June 9, 2011 Opinion Issued: September 15, 2011 Kalil & LaCount, of Rye (Michelle LaCount and Rachael M. Taylor on the brief), and Issadore & Arons, LLP, of Norwell, Massachusetts (Bruce A. Issadore orally), for the petitioner.

D'Amante Couser Pellerin & Assoc., P.A., of Concord (Steven Solomon on the brief and orally), for the respondents.

DALIANIS, C.J. The respondents, Ravenna Investment Associates and its successor-in-interest, Access Road, LLC (collectively referred to as Ravenna), appeal an order of the Superior Court (Nicolosi, J.) following a bench trial, which granted the petition for injunctive and declaratory relief filed by the petitioner, Appletree Mall Associates, LLC (Appletree), ordering Ravenna to restore two fifteen-foot drainage easements allowing water to discharge from Appletree's site to Route 102 in Londonderry. We reverse.

I.

Background

The record reveals the following facts. This appeal concerns whether Appletree's lot, Lot 2, has drainage easements over Ravenna's lots, Lots 6, 7 and 10. At one time, all four lots were owned by the original developers, James Matarozzo and Howard Hirshberg. In July 1976, Matarozzo and Hirshberg received planning board approval to subdivide their Londonderry land into two large lots (Lot 2 and a lot referred to as "the Residue") and several smaller lots (Lots 5, 6, 7, 9 and 10). Their plan, referred to as Plan C-6196, depicted two fifteen-foot drainage easements. Half of one drainage easement was located on Lot 10; the other half was located on Lot 7. Half of the other drainage easement was located on Lot 6. Plan C-6196, which was recorded in August 1976, did not indicate which lots the drainage easements were intended to benefit. In September 1976, Matarozzo and Hirshberg conveyed Lots 2 and 6 to George C. Shaw Company (Shaw's). In 1982, Shaw's corporate successor, which for ease of reference we will also refer to as Shaw's, acquired Lots 7 and 10. Accordingly, as of 1982, all four lots at issue were in common ownership. They remained in common ownership until 1984, when Shaw's conveyed Lot 2 to Appletree's predecessor-in-interest. Ravenna acquired Lots 6, 7 and 10 from Shaw's in 2007. In the 1980's, Lot 2 was developed as the Apple Tree Mall. Lot 2 lies northwest of Orchard View Drive in Londonderry. Historically, water has drained from Lot 2 into the town's drainage basin and then through a pipe under Orchard View Drive, which discharged onto Lots 6, 7 and 10. Ravenna underwent an extensive design and approval process to develop Lots 6, 7 and 10 commercially. As part of the process, the town required Ravenna to grant it an easement to allow water to run off from Orchard View Drive into Ravenna's drainage system. It also required Ravenna to construct a drainage system that treated the water before it discharged onto Route 102. These requirements precluded Ravenna from piping Appletree's water across the alleged easements on Lots 6, 7 and 10 to Route 102. Additionally, Route 102's grade was altered to prevent a direct flow of water into the town's drainage ditch along Route 102. In August 2008, Appletree brought the instant petition seeking a declaration that, as owner of Lot 2, it was entitled to drainage easements over Lots 6, 7 and 10, and an order requiring Ravenna to remove any obstructions to those easements. In its order, the trial court found that Ravenna's development of Lots 6, 7 and 10 unreasonably interfered with Appletree's alleged drainage easements. Specifically, the court found that Ravenna impermissibly relocated the easements unilaterally by routing the water over a

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different part of its land, instead of within the bounds of Appletree's easements. Accordingly, it granted Appletree's petition and ordered Ravenna to restore the drainage easements. This appeal followed. II. Analysis

On appeal, Ravenna first argues that Appletree never had drainage easements on Lots 6, 7 and 10 in the first place. Resolving this issue requires that we interpret the deeds in the conveyances to Appletree and its predecessors-in-interest and to Ravenna and its predecessors-in-interest. The proper interpretation of a deed is a question of law for this court. Motion Motors v. Berwick, 150 N.H. 771, 775 (2004). As a question of law, we review the trial court's interpretation of a deed de novo. Mansur v. Muskopf, 159 N.H. 216, 221 (2009). In interpreting a deed, we give it the meaning intended by the parties at the time they wrote it, taking into account the surrounding circumstances at that time. Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 765 (1986). We base our judgment on this question of law upon the trial court's findings of fact. Arcidi v. Town of Rye, 150 N.H. 694, 701 (2004). If the language of the deed is clear and unambiguous, we will interpret the intended meaning from the deed itself without resort to extrinsic evidence. See Flanagan v. Prudhomme, 138 N.H. 561, 566 (1994). The first deed in the chain of title for Lots 2 and 6 is the 1976 deed conveying both lots to Shaw's. Referring to Plan C-6196, it stated: [Lot 6] is subject to a drainage easement approximately 7 1/2 feet in width and running the entire westerly boundary of the said lot as shown on [Plan C-6196]. Said easement shall benefit [Lot 2] and [the "Residue"] as shown on [Plan C-6196] and shall be for the purpose of collecting surface water run-off and diverting the same to N.H. Rt. 102. Appletree concedes that the 1976 deed did not create an easement on Lot 6 for Lot 2's benefit because it conveyed both the dominant estate (Lot 2) and the servient estate (Lot 6) to the same owner. See Soukup v. Brooks, 159 N.H. 9, 14-15 (2009). As Appletree acknowledges, a landowner cannot have an easement over his or her own property. See id. at 14-15; see also J. W. Bruce & J. W. Ely, Jr., Law of Easements and Licenses in Land

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