Appletree Mall Associates, LLC v. Ravenna Investment Associates, 162 N.H. 344

Appletree seeks declarations and an injunction to enforce drainage easements on Lots 6, 7, and 10 for the benefit of Lot 2 (Appletree’s Lot 2).
Plan C-6196 (1976) depicted two fifteen-foot drainage easements with half on Lot 10 and half on Lot 7, and half on Lot 6, but did not specify which lots benefited the easements.
All four lots were in common ownership initially; Lot 2 was later conveyed to Appletree’s predecessor, while Ravenna acquired Lots 6, 7, and 10 in 2007.
Historically, Lot 2 drained into a town drainage basin and through a pipe under Orchard View Drive to the shared Lots 6, 7, and 10.
Ravenna’s development required the town to secure drainage easements and to modify Route 102’s grade, affecting the path of Appletree’s water.
The trial court found Ravenna interfered with Appletree’s alleged easements by routing water across Ravenna’s land rather than within Appletree’s easements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Appletree has drainage easements on Lots 6, 7, 10 for Lot 2.	Appletree relies on 1984 deed and earlier deeds to establish easements.	Merger and lack of express creation mean no easements survived for Appletree.	No, the language and context do not create surviving or new easements for Appletree.
Whether the 1984 deed revived or created new easements on Lots 7 and 10 for Lot 2.	1984 deed references and preserves easements from 1976 for Lot 2’s benefit.	Merger extinguished prior easements; mere reference cannot revive them.	The 1984 deed did not create or revive drainage easements on Lots 7 and 10.
Whether the 1984 deed’s language is sufficient to grant new drainage easements on Lots 7 and 10.	Language should be read to create easements for Lot 2.	Language is insufficient to express affirmative intent to create new easements.	Insufficient to create new drainage easements; merely notes rights of record.

Soukup v. Brooks, 159 N.H. 9 (N.H. 2009) (landowner cannot have an easement over own property; merger extinguishes easements)
Stevens v. Dennett, 51 N.H. 324 (N.H. 1872) (dominant and servient estates must be separate to create an easement)
Capital Candy Company v. Savard, 369 A.2d 1363 (Vt. 1976) (mere reference to extinguished easement does not revive it)
Faulconer v. Williams, 964 P.2d 246 (Or. 1988) (mere reference to prior easements cannot revive or create new ones)
Davis v. Henning, 462 S.E.2d 106 (Va. 1995) (language specifying subject to easement not sufficient to create new easement)
Radovich v. Nuzhat, 16 P.3d 687 (Wash. Ct. App. 2001) (specific reference to easement terms in exhibit can recreate an easement)