Marshall v. Burke
34 A.3d 705
N.H.2011Background
- Beach Lot lies west of Lake Ossipee between the lake and Deer Cove Road; plaintiffs’ property lies further west.
- Chain of title: Lord’s heirs → University of New Hampshire → Florence Banfill → Deer Cove Shorefront Owners’ Association (DCSOA) → defendants receive Beach Lot portions across Deer Cove Road in 1998.
- Plaintiffs allege more than twenty years of open, adverse, continuous use of Blanchard Road and the Beach Lot to access the lake prior to 1987.
- Town obtained Beach Lot by tax deed in 1987 and later conveyed it to Banfill; litigation followed regarding prescriptive rights.
- Trial court granted summary judgment for defendants, holding that any pre-1987 easement was extinguished by the tax deed.
- On appeal, court reviews de novo and reverses, holding Burke does not foreclose Gowen’s rule; tax sales do not extinguish ripened prescriptive easements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a tax deed extinguish ripened prescriptive easements? | Gowen controls; Burke did not overrule Gowen. | Burke overrules Gowen and extinguishes preexisting easements by tax deed. | Burke does not overrule Gowen; tax sale does not extinguish ripened prescriptive easements. |
| Should Gowen be overruled under Kalil factors? | Overruling Gowen would be warranted by public policy and reliance interests. | Kalil factors favor overruling Gowen due to practical and policy developments. | Gowen is not overruled. |
| What is the effect of the tax sale on ripened prescriptive rights for appurtenant easements? | Ripened easements persist despite tax sale because they attach to the dominant estate. | Tax sale extinguishes prior easements and rights. | Tax sale does not extinguish ripened prescriptive easements. |
Key Cases Cited
- Burke v. Fierro, 159 N.H. 504 (2009) (tax deed does not extinguish ripened prescriptive rights; analysis of pre-sale use)
- Gowen v. Swain, 90 N.H.383 (1939) (tax sale does not extinguish easements that exist prior to sale)
- Kellison v. Mclsaac, 131 N.H.675 (1989) (whether municipality’s ownership interrupts or resets adverse possession period)
- Harrison v. Everett, 308 P.2d 216 (1957) (tax deeds and in rem considerations in tax sales)
- Buchholz v. Waterville Estates Assoc., 156 N.H.172 (2007) (tax sale effects on covenants and servitudes; in rem considerations)
- Alvin v. Johnson, 63 N.W.2d 22 (1954) (easement survivability in tax sale context; appurtenant easements)
- Yetev Lev D’Satmar, Inc. v. County of Sullivan, 452 N.E.2d 1207 (1983) (taxation and real property; effect on property interests and easements)
- Hayes v. Gibbs, 169 P.2d 781 (1946) (due process concerns in tax sale consequences)