Legal Memorandum: Extinguishment of an Easement

Issue: Whether an easement’s language contemplate the extinguishment of the easement at a particular time under New Hampshire law (or the law of any state). ![TEXT:

Area of Law: Business Organizations & Contracts, Litigation & Procedure, Real Estate Law
Keywords: Extinguishment of an easement; Language used; Parties' intent
Jurisdiction: New Hampshire
Cited Cases: 229 A.2d 183; 559 A.2d 1338; 776 A.2d 131; 846 A.2d 1156; 376 A.2d 1368; 710 So. 2d 711; 406 A.2d 115
Cited Statutes: None
Date: 11/01/2005

In order to determine what rights were reserved by a deed, the court must determine the meaning of the deed, as intended by the parties at the time they wrote it.   Lussier v. New England Power Co., 584 A.2d 179 (N.H. 1990).  The court must examine the deed’s language in order to determine the parties’ intent.  Id.  Clear and unambiguous terms of a deed control how a court construes the parties’ intent.  Arcidi v. Town of Rye, 846 A.2d 535 (N.H. 2004).  When the words are clear and their meaning is unambiguous, there is no need to resort to extrinsic facts and circumstances or to rely on a rule of reason to determine the parties’ intent.  Lussier, 584 A.2d at 181. Thus, in construing an easement reservation, a court should “seek only that intention expressed in the instrument and not some undisclosed intention that the parties may have had in mind.” Thomas v. Ross, 376 A.2d 1368, 1373 (R.I. 1977).

New Hampshire courts have considered the parties’ use of language to determine the parties’ intent.  For example, in Quality Discount Market, 571 A.2d at 275, the court analyzed whether a grant was a personal license or an easement.  Finding a license rather than an easement in the language, the court noted:

Based on the parties’ choice of words in the indenture and the parties’ stated purpose, we hold that Champagne granted the Phelpses a personal license to use its parking facilities, […]


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