The town has been in litigation with the plaintiff for several years over the water level of Lake Wentworth, which is controlled by a dam owned by the town. In 1999, the Court held that the town had acquired, from the previous dam owner, a prescriptive easement to raise water to the top of the dam and, thus, to flow water on the plaintiff's lakeside property during a portion of the year. Sanford v. Town of Wolfeboro, 143 N.H. 481 (1999).
However, issues involving the character and extent of the scope of the easement were remanded to the trial court for further findings because the trial court had incorrectly determined that the scope of the easement was based on “reasonable” use by the town. On remand, the trial court then considered evidence regarding the “historical and customary use of the dam” and concluded, “The great fluctuation in water heights, along with the fact no maximum height was ever set during the prescriptive period, indicates that the prescriptive use was determined by the needs and desires of the dam owner and the weather, and at some point each year, the water flowed to the top of the dam. … The scope of the defendant's easement is use that is consistent with the historical and customary use of the dam.”
A prescriptive easement is one in which the easement holder's use of another's (the servient owner's) land is adverse (without permission), continuous and uninterrupted for 20 years.
The plaintiff appealed the trial court's finding that the town could allow the water level to reach the top of the dam whenever it needed and wanted to and whenever the weather required it to. The plaintiff argued that the town's right to flow water on his land was limited only to certain times of the year as established by historical use. The Court disagreed.
The Court referred to previous rulings in which it established: “The scope of a prescriptive easement is defined by the character and nature of the use that created it. … Because no use can ever be exactly duplicated, some variation between the use by which a prescriptive easement was created and the uses made under it after its creation is inevitable. The problem is to ascertain the limits of permissible variation.”
The scope of a prescriptive right of way is easier to determine than the scope of an easement to flow water onto land of another, the Court noted, because of “obvious differences between crossing property on foot or in a vehicle, and between crossing property for personal use or commercial use. … In cases where the prescriptive right at issue is the right to flow water onto land, however, the scope of the easement is much more difficult to determine.”
The Court cited Winnipiseogee Lake Company v. Young , 40 N.H. 420 (1860) in affirming the decision of the trial court. In that case, the Court held: “Rights of way, and some other easements, are not continuously exercised; but the right is acquired by an uninterrupted use of the right at all times, at the pleasure or convenience of the party claiming the right . On the same principle, if the plaintiffs claimed the right to keep the water in their dam at its full height, whenever they chose, and had water to fill it , and exercised that right for twenty years, agreeably to their claim, it would be conclusive that they possessed the right.” (emphasis added by the Court).
The Court held that the Town of Wolfeboro had established its easement to flow water on the plaintiff's land at a water level that reached the top of the dam, “in keeping with the historical and customary use of the dam, within the obvious parameters of weather variations.”
Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.