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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 ___________________________ Sullivan No. 2011-227 MICHAEL O'HEARNE & a. v. JAMES MCCLAMMER, JR. JAMES U. MCCLAMMER, JR., TRUSTEE OF THE PROFIT SHARING PLAN OF CONNECTICUT VALLEY ENVIRONMENTAL SERVICES, INC. v. MICHAEL W. O'HEARNE & a. Submitted: March 13, 2012 Opinion Issued: March 23, 2012 Buckley and Zopf, of Claremont (Anthony F. DiPadova, Jr. on the brief), for Michael W. O'Hearne and Marie E. O'Hearne. Clauson & Atwood, of Hanover (Bradford T. Atwood on the brief), for James U. McClammer, Jr., individually and as Trustee of the Profit Sharing Plan of Connecticut Valley Environmental Services, Inc.

HICKS, J. James U. McClammer, Jr., Trustee of the Profit Sharing Plan of the Connecticut Valley Environmental Services, Inc., appeals an order of the Superior Court (Wageling, J.), following a bench trial on the merits, ruling in favor of Michael W. O'Hearne and Marie E. O'Hearne on the parties' crosspetitions to quiet title and for injunctive relief. We affirm. The parties own adjoining lots in the vicinity of the Little Sugar River in North Charlestown; McClammer owns the southerly lot, while the O'Hearnes own the lot to the north. Historically, both lots were part of a larger parcel bisected by the river, which generally runs in an east-west direction at that point. In 1790, the larger parcel was subdivided by a deed conveying "all that part or parcel of land being and lying on the North side of Little Sugar River . . . [e]xcept three quarters of an acre of land that will best accommodate a Mill Spot." Title to the O'Hearne lot is, ultimately, derived from this conveyance, while the McClammer lot was included in the land retained by the grantor of the 1790 deed. Prior to 1929, deeds within McClammer's chain of title referenced the river in describing the northern bound of his parcel. For instance, an 1872 deed contained the following legal description of the McClammer lot: beginning near the south end of the South Bridge on Little Sugar River and running southwesterly on the highway . . . to land of said P & M Howard thence northerly on land of said Howard to the south bank of said river, thence easterly on said river to the place of beginning . . . . A 1907 deed within the McClammer chain, however, described the parcel's northern bound as running "Easterly on said river and land of one Woodward." (Emphasis added.) "[L]and of one Woodward" included the O'Hearne lot. In 1929, a deed to the McClammer parcel did not reference the river at all in describing the boundaries, and for the first time described the parcel by courses and distances between artificial monuments. Three of the monuments were located south of the river, at what McClammer described as "the edge of the river's flood plain" along the northern portion of the parcel. Two of the monuments currently exist, while the easternmost monument, described in the deed as "ten (10) feet eight (8) inches from the southwesterly end of" the same bridge referenced in the 1872 deed, was removed by the New Hampshire Department of Transportation (DOT) when it replaced the bridge in the early 1980s. Although early deeds within the O'Hearne chain of title also appear to have referenced the river in describing the property, an 1882 deed described the

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southern boundary as running "Easterly on . . . land [owned by McClammer's predecessors] to the Highway" without mentioning the river at all. Since 1936, the deeds within the O'Hearne chain describe the southern boundary of the parcel as running "on land now or formerly of [McClammer's predecessor] to the highway (easterly)," also without mentioning the river. McClammer acquired title to his lot in 1999 from the estate of Louise Hinchliffe, who had acquired her title upon the intestate deaths, in 1944 and 1957, of the grantees of the 1929 deed. The property description in McClammer's deed was identical to the description in the 1929 deed. The present dispute arose when McClammer began removing trees from the strip of land lying to the north of the monuments and to the south of the river. The O'Hearnes filed a petition to enjoin McClammer from trespassing on their land, asserting that the parties' common boundary was established by the monuments. McClammer, in turn, filed his own petition to quiet title, claiming that his title ran either to the "so-called thread or center of the river," or to its low water mark on "the south side of [its] main northerly channel." Thereafter, McClammer amended his petition, asserting that his title extended to the high water mark on the northern bank of the river, and included a 0.15 acre piece of land to the north of the river where, he claimed, the "mill spot" referenced in the 1790 deed was located. In their answers to McClammer's petition and amended petition, the O'Hearnes claimed not only that they had record title to the areas in dispute, but that they had also acquired title by adverse possession and the doctrine of boundary by acquiescence. The trial court consolidated the matters, and following a trial on the merits, ruled in favor of the O'Hearnes. In its narrative order, the trial court declined to interpret the parties' deeds, but instead ruled that McClammer's claims were barred by the twenty-year statute of limitations set forth in RSA 508:2 (2010), which the court determined had been triggered either by the legal description of the O'Hearne lot in the 1882 deed, or by the description in the 1929 deed to McClammer's predecessors. Alternatively, the trial court ruled that the O'Hearnes had acquired title to the disputed areas through adverse possession. With respect to adverse possession, the trial court found that "two very important factors speak in [the] O'Hearne[s'] favor." First, the trial court noted that the O'Hearnes asserted ownership pursuant to "a long-standing sequence of recorded deeds, which support [their] position that the boundary is defined by markers." Both the O'Hearne and McClammer chains of title, according to the trial court, had described the parties' boundary with reference to the monuments since 1936. Second, the trial court found that McClammer's predecessor-in-title had actual notice that the disputed property was possessed by the O'Hearnes.

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Specifically, the trial court noted: (1) McClammer's predecessor, Louise Hinchliffe, repeatedly walked the boundary claimed by the O'Hearnes with Michael O'Hearne (Michael), and otherwise "acted in a way consistent with [the] O'Hearne[s'] assertion that she did not consider the thread of the river to be the boundary"; (2) Hinchliffe wrote a letter to the DOT in 1983 in connection with its replacement of the bridge that was consistent with the O'Hearnes' claims concerning the boundary; and (3) Michael had, at Hinchliffe's request, maintained "No Trespassing" signs on the portion of land under dispute, and cut down a tree in the disputed area that was overhanging Hinchliffe's property. These facts, according to the trial court, established that "McClammer's predecessor in interest abided by the exclusive boundary, as defined by the markers, and did so for over 20 years." As to the so-called "mill spot," the trial court found no evidence that McClammer or Hinchliffe ever used it, and that the O'Hearnes in fact used and improved it over a period exceeding twenty years. In addition to its narrative order, the trial court ruled on the parties' detailed requests for findings of fact and rulings of law. Relying upon Mastroianni v. Wercinski, 158 N.H. 380, 383 (2009), and Rautenberg v. Munnis, 108 N.H. 20, 23 (1967), the trial court ruled that a boundary may be established by acquiescence and prevail over contrary descriptions in deeds to the extent that the parties recognize the boundary as true for twenty years, and occupy their lots accordingly. The trial court then found and ruled that: (1) "Hinchliffe clearly acquiesced, for a period in excess of 20 years, that the boundary line separating the parties' property is the line claimed by the [O'Hearnes]"; and (2) the O'Hearnes had established title "by adverse possession both due to the acquiescence of the claimed boundary by Louise Hinchliffe and by their continuous use and possession of the land in question." McClammer moved for reconsideration, arguing that the trial court had improperly raised the statute of limitations sua sponte. Additionally, he challenged the trial court's rulings on the merits, arguing that it had erroneously found that the O'Hearne chain of title referenced the monuments, that it improperly construed the relevant deeds, and that it ignored other evidence inconsistent with a finding of adverse possession. The trial court denied the motion, concluding that the O'Hearnes had sufficiently raised the statute of limitations by pleading adverse possession, and that, because McClammer's claim was time-barred, he "lack[ed] standing to challenge [its] findings with respect to [the O'Hearnes'] ownership of the disputed strip." This appeal followed. On appeal, McClammer argues that the trial court erred by: (1) ruling that his petition to quiet title was time-barred under RSA 508:2, and not allowing him a rehearing to submit evidence rebutting the ruling;

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(2) finding that the O'Hearnes acquired title to the property in dispute by adverse possession or acquiescence; (3) relying upon the 1929 deed, which McClammer claims is ambiguous, to support its finding as to the location of the boundary; and (4) not finding that he had title to the "thread," or center, of the river. At the outset, we note that the trial court relied upon RSA 508:2, adverse possession, and boundary by acquiescence as alternative grounds for ruling in favor of the O'Hearnes. While McClammer claims he "was prejudiced by the trial court's sua sponte ruling [that he was time-barred] as he was not provided an opportunity to present evidence on adverse possession," the record reflects that the O'Hearnes raised adverse possession and boundary by acquiescence in their pleadings, that the parties presented evidence at trial relative to those theories, and that McClammer himself, in his request for rulings of law, sought a ruling that the O'Hearnes had "fail[ed] to satisfy the legal elements . . . [of] either adverse possession or boundary by acquiescence." Even if the trial court erred by applying RSA 508:2, and by ruling, on reconsideration, that McClammer lacked standing to challenge its findings on adverse possession and boundary by acquiescence, we conclude that the evidence supports the trial court's ruling that the O'Hearnes acquired title through Hinchliffe's acquiescence in the boundary. Accordingly, we need not address whether the trial court erred by applying RSA 508:2 or ruling that McClammer lacked standing to challenge its findings. See Kessler v. Gleich, 156 N.H. 488, 494 (2007) (trial court will be upheld where error does not affect outcome, or where we can determine that no injury occurred). We also note that the parties in their briefs, and the trial court in ruling that the O'Hearnes acquired title "by adverse possession . . . due to the acquiescence of the claimed boundary by Louise Hinchliffe," appear to conflate the theories of adverse possession and boundary by acquiescence. "To acquire title to real property by adverse possession, the possessor must show twenty years of adverse, continuous, exclusive and uninterrupted use of the land claimed so as to give notice to the owner that an adverse claim is being made." Mastroianni, 158 N.H. at 382. Absent actual notice by the dispossessed party of the adverse possession of his or her land, "[t]he law requires more than occasional, trespassory maintenance [of another's property] in order to perfect adverse title; the use must be sufficiently notorious to justify a presumption that the owner was notified of [the claim]." Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 34 (2007); see Mastroianni, 158 N.H. at 383-84. By contrast, "[a]cquiescence may establish a boundary where the parties for twenty years or more have recognized a certain boundary as being the true one and have occupied their respective lots accordingly." Rautenberg, 108 N.H. at 23; see Mastroianni, 158 N.H. at 383. "The bound thus acquiesced in will prevail even over the description in the deeds." Rautenberg, 108 N.H. at 23. To

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establish a boundary by acquiescence, a party generally must prove that: (1) the parties are adjoining landowners; (2) who have occupied their respective lots up to a certain boundary; (3) which they have recognized as the true boundary separating the lots; and (4) have done so for at least twenty years. See id.; 9 R. Powell, Powell on Real Property

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