News & Thought Leadership from Sulloway & Hollis

September 21, 2016

Boissy v. Chevion: New Method of Extinguishing Easements Recognized by New Hampshire Supreme Court

In New Hampshire, it is well established that easements can be terminated not only by written agreement, but also by abandonment, adverse possession (continuous, open, adverse, and hostile use for a twenty year period), merger (when the same person owns both the benefited and burdened parcel), and, in the case of an easement originally created due to a necessity (such as a right of way providing access to an otherwise landlocked parcel), if the necessity ends. In September 2011, the New Hampshire Supreme Court recognized an additional method of terminating an easement: impossibility of purpose. Under the Court’s ruling, an easement that was granted for a particular purpose expires when it becomes impossible to use the easement for its intended purpose. Boissy v. Chevion, 162 N.H. 388 (2011).

The Boissy case involved a fight between two neighbors. Ms. Chevion claimed to have two easements over the Boissys’ land that gave her (1) the right to pipe water from a well on the Boissys’ land into her home and (2) a right of way over the Boissys’ land to access an ice pond. The Boissys wanted to terminate both easements.

The Supreme Court explained that the application of its newly minted doctrine of impossibility of purpose requires a two-step inquiry. First, a court must determine what the particular purpose of the easement was; second, it must decide whether the particular purpose continues to exist. If the purpose no longer exists, the easement “is considered to have expired.” Boissy at 394.

Applying this test to the facts of the case, the court determined that the purpose of the well easement was to permit Ms. Chevion and her predecessors to draw water from a specific well on the Boissys’ land. However, the well had not been used in nearly three decades and could not be located. Therefore, the Court held that the easement’s purpose could not be accomplished, and that the easement was extinguished.

On the other hand, the Court observed that “the reference to the ice pond” in the second easement was simply a description of the easement’s location “and was not a statement regarding the easement’s purpose.” Therefore, the ice pond easement was not extinguished “merely because the body of water now on the … [Boissys’] property can no longer serve as an ice pond” given its current “marsh-like” nature. Id. at 398.

In Sakansky v. Wein, the New Hampshire Supreme Court stated that “[i]n this state the respective rights of dominant and servient owners are not determined by reference to some technical and more or less arbitrary rule of property law as expressed in some ancient maxim, but are determined by reference to the rule of reason.” 86 N.H. 337, 339 (1933) (internal citation omitted). Nevertheless, in light of the Court’s recent adoption of the doctrine of impossibility of purpose, New Hampshire landowners burdened by easements have one more argument to which they can turn should they wish to remove troublesome easements over their land.

If you need help understanding your rights with respect to easements, please contact a member of our firm’s Real Estate, Development and Environmental Practice Group.