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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. 2010-812

ALFRED R. MARSHALL, JR. & a. v. JAMES J. BURKE, JR. & a. Argued: June 16, 2011 Opinion Issued: October 12, 2011 Cooper, Cargill & Chant, P.A. of North Conway (Randall F. Cooper on the brief and orally) for the plaintiffs.

Orr & Reno, P.A. of Concord (Jeremy D. Eggleton on the brief and orally) for the defendants.

LYNN, J. The plaintiffs, Alfred and Susan Marshall, appeal an order of the Superior Court (Houran, J.) granting summary judgment in favor of the defendants1 on the plaintiffs' claim to a prescriptive easement over defendants'

The defendants are James J. Burke and Patricia M. Burke, Thomas E. Williams, G. Thomas Jensen and Beverly Ann Jensen, Joan C. Picard, and the Deer Cove Shorefront Owners Association.

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beach front property (the "Beach Lot") on Lake Ossipee. We reverse and remand. The summary judgment record reveals the following pertinent facts. The Beach Lot is located to the west of Lake Ossipee between the lake and Deer Cove Road. To the west of Deer Cove Road are the properties of the individual defendants. To the west of the lots of these defendants is Benson Road, and to the west of Benson Road is the plaintiffs' property. The plaintiffs' and the defendants' lots were originally part of a parcel acquired by Francis H. Lord in 1871. Lord sold several beachfront lots (but not the Beach Lot) during his lifetime. After Lord's death, his heirs continued to sell parcels from his land, including several non-waterfront back lots. Title to the Beach Lot ultimately passed through Lord's heirs to the University of New Hampshire, which conveyed the Beach Lot to Charles Banfill in 1955. The Town of Ossipee (Town) acquired title to the Beach Lot by a tax collector's deed dated December 13, 1987. The Town conveyed the Beach Lot to Florence Banfill by quitclaim deed dated September 1, 1993. Banfill in turn conveyed the Beach Lot to the Deer Cove Shorefront Owners' Association (DCSOA). In 1998, DCSOA conveyed to each of the individual defendants that portion of the Beach Lot that is located across Deer Cove Road from his or her lot. In June 2010, the plaintiffs filed this action seeking a court determination that they hold prescriptive rights to use Blanchard Road2 and the Beach Lot. The plaintiffs claimed that, prior to the Town's acquisition of the Beach Lot by tax deed in 1987, they and their predecessors had made more than twenty years of open, adverse, continuous and uninterrupted use of the Beach Lot to access Lake Ossipee, thus giving them a prescriptive easement over that lot. The defendants challenged the plaintiffs' claim on five grounds, one being that any prescriptive easement to use the Beach Lot, which may have existed prior to 1987, was extinguished by the Town's acquisition of the property by tax deed in that year. The trial court agreed with the defendants on this point and therefore did not address their other arguments. Without deciding whether the plaintiffs actually had an easement prior to 1987, the court held that even assuming such easement existed, the tax deed cut off even ripened prescriptive rights as a matter of law. This appeal followed. 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 non-moving party. Big League Entm't v. Brox
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Blanchard Road runs from Benson Road to Deer Cove Road over the Burke lot (Lot 68) and provides plaintiffs' means of access to the Beach Lot. Although plaintiffs' suit claimed an easement to use Blanchard Road as well as the Beach Lot, the trial court's summary judgment order did not address the alleged Blanchard Road easement and therefore it is not before this court in the instant appeal.

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Indus., 149 N.H. 480, 482 (2003). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court's application of the law to the facts de novo. Id. On appeal, the plaintiffs argue that the trial court erred in determining that our decision in Burke v. Pierro, 159 N.H. 504 (2009), compelled the conclusion that any easement the plaintiffs might have had prior to the tax deed was extinguished by that deed. The defendants dispute this, arguing that the trial court properly construed Burke. We agree with the plaintiffs. In Burke, we considered a prescriptive easement claim made by different back lot owners (the Pierros) to the same Beach Lot involved in this case. Unlike the plaintiffs here, the Pierros did not claim that they had made adverse use of the Beach Lot for twenty years before the date the Town acquired title to the lot.3 Instead, they argued that the tax deed was invalid and therefore "was irrelevant to their asserted twenty years of uninterrupted beach usage . . . ." Id. at 512. We held that the Pierros' challenge to the tax sale was untimely because it was asserted more than ten years after the tax deed was recorded. See RSA 80:39 (2003). Because the Pierros' total claimed adverse use exceeded twenty years, even if the time during which the Beach Lot was owned by the Town was excluded, we were then required to decide the effect of the Town's ownership; that is, whether it merely interrupted the running of the adverse possession period, as we had held in Kellison v. McIsaac, 131 N.H. 675, 681 (1989), or whether it started that period running anew. We concluded that it had the latter effect, holding that "a municipality's title to land through tax foreclosure proceedings extinguishes the prescriptive period accumulated prior to a tax sale." Burke, 159 N.H. at 512. The trial court recognized that Burke was distinguishable from this case in that it did not involve a claim to a ripened prescriptive easement that existed before the tax sale. The court also acknowledged that in Gowen v. Swain, 90 N.H. 383 (1939), we held that a tax sale did not divest an easement over property that had existed for at least thirty-five years prior to the tax sale. However, relying on language we quoted from an ALR Annotation that "`the title conveyed by a [tax sale] is . . . a new and paramount title to the land in fee simple absolute, . . . free from all equities and encumbrances existing prior to the sale,'" Burke, 159 N.H. at 512-13 (quoting Annotation, Quantum of Estate Acquired by Purchaser at Tax sale of Property Which is Subject to Successive Estates or Different Interests, 75 A.L.R. 416, 417 (1931)), the trial court found that "Burke is wholly inconsistent with Gowen" and "conclude[d], therefore, that Gowen ha[d] been overruled sub silencio . . . ." As additional support for
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To establish an easement by prescription, the claimant must prove, by a preponderance of the evidence, twenty years of adverse, continuous and uninterrupted use of the land. See, e.g., Flanagan v. Prudhomme, 138 N.H. 561, 571-72 (1994).

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this conclusion, the trial court noted that in adopting the majority in rem view of the effect of a tax sale, Burke cited approvingly the decision in Harrison v. Everett, 308 P.2d 216 (1957), a case in which the Colorado Supreme Court held that a tax deed extinguished even a ripened claim of title by adverse possession. See Burke, 159 N.H. at 514. We hold that Burke did not overrule Gowen and that a tax sale does not extinguish prescriptive easements that have ripened into vested property rights prior to recording of the tax deed. Our opinion in Burke did not cite or reference Gowen in any way, and while, like the trial court, we acknowledge the reality that a case may be overruled sub silencio, see Central Virginia Community College v. Katz, 546 U.S. 356, 382 (2006) (Thomas, J., dissenting), such a conclusion should not be reached except on inescapable grounds, as to do otherwise is inconsistent with settled principles of stare decisis. See id. at 363 (opinion for the Court by Stevens, J.) ("we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated"); 20 Am Jur 2d, Courts

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