The issue in this declaratory judgment action to determine the location of and rights in a right-of-way and a wharf on Lake Sunapee is whether the trial court’s decree to defendants of title to the wharf and certain rights in the land of plaintiffs is supported by the evidence and the law. We hold with slight modifications that it is.
In 1925, John A. Stevens owned a large tract of land on the eastern shore of Lаke Sunapee in the town of Newbury. He subdivided his shoreline property into seventeen separate lots. By deed and plan, he established a common passageway or right-of-way leading to the shore and separating lots #13 and #14 along the southern boundary of lot # 14. Stevens retained title to lot #14 until his death in 1927. The plaintiffs currently own lot # 14 as well as the fee under the common passageway.
Defendant Walter Croteau’s father, Joseph Croteau, purchased an inland lot from Stevens in 1923. By deed dated July 21,1925, Stevens granted Croteau a right-of-way leading to the lake. The dеed reads as follows: “A right-of-way over land of said grantor [Stevens] to a certain boathouse to be erected by said grantee [Croteau] on the shore of Lake Sunapee and on the shore of Lot # 14.” This right-of-way and the wharf which Joseph Croteau constructed instead of a boathouse are the subjects of the present dispute. In particular what is disputed is whether the right-of-way is over the southerly sixteen feet of lot #14 or over the common passageway between lots #13 and #14.
At his death in 1927, Stevens left his realty to his only daughter, Irene, who in turn conveyed lot #14 to Herbert D. Stevens (no relation to John A. Stevens) by deed dated January 18,1933. Herbert Stevens soon thereafter entered into, and later recorded, a written agreement with Joseph Croteau concerning the right-of-way in question. The agreement states in pertinent part:
That whereas said Croteau has a certain right-of-way by the conveyance of John A. Stevens . . . affecting tо some extent Lot #14 .... Now therefore, for the purpose of defining and establishing what right-of-way shall be over said Lot #14, the two parties hereto . . . agree that [it] shall be the width of 16 feet and shall еxtend over said Lot #14 as follows: on the Southerly side of said Lot #14.
Joseph Croteau used the right-of-way and wharf he had constructed on the shore of lot #14 for the next twenty-nine years for recrеational purposes such as boating, swimming and picnicking. Title in lot #14 changed hands several times during the period. Atone point, an owner of lot #14 built a small shed on part of the southern sixteen fеet of lot #14, but Croteau registered no complaint because he was able to use a part of the common right-of-way between lots #13 and #14 to get past the obstruction and thus to the whаrf. In May 1962, Joseph Croteau sold his interest in his right-of-way and wharf to his son, defendant Walter Croteau. The plaintiffs purchased lot #14 in 1967.
The record indicates that for a time the plaintiffs and defendants were close friends. By agreement between them, the wharf was rebuilt and extended with their combined efforts. It is undisputed that the plaintiffs built some stone steps leading down to the water and that they imprоved the area generally, but as to the rest of the work, the parties are in dispute regarding who supplied what materials and did what work. Pleasant relations existed until the plaintiffs became concerned with the number of people using the wharf and with the defendants’ parking their car on the sixteen-foot-wide strip between the shed and the shore in such a fashion as to block the plaintiffs’ driveway.
The plaintiffs sought a declaratory judgment that defendants’ right-of-way was confined to the common passageway between lots #13 and #14 and not over lot #14 and a declarаtion of the parties’ respective interests in the way and wharf. Trial was before a Master {Robert A. Carignan, Esq.), who found the wharf to be owned wholly by the defendants. He found also that the defendants’ right-of-way ran over lot #14, but that a portion of it running between the main road and the shed had been abandoned through lack of use and obstruction. The remaining portion of the way, between the shed and the shore, was found to have been retained as originally granted. The master concluded that defendants’ right-of-way was an easement appurtenant to their nearby property, and that thеir rights in it were exclusive. The Superior Court {Johnson, J.) entered a decree in accordance with the master’s findings and recommendation, and reserved and transferred plaintiffs’ exceptions.
Littoral rights are incidental property rights associated with ownership of lakeshore property. 5 R. Powell, LAW OF Real PROPERTY § 710 (1979). In New Hampshire, the right to wharf out to navigable depth ias long been recognized as a common-law littoral right.
See Heston v.
Ousler,
Turning to the decree of ownership issued by the trial court, we find it supрorted by the evidence.
Dove v. Knox Mt. Corp.,
The master’s location of the defendants’ right-of-way also finds support in the record.
Cragin v. Woollett,
The finding that the defendants have an exclusive right to the way is questionable, however, if it was intеnded to preclude use of the way by the plaintiffs or any other owner of lot #14. Nevertheless, during oral argument, the parties agreed that the owners of the underlying fee cannot be exсluded from a reasonable use of the land over which the easement runs so long as that use does not interfere with the defendants’ reasonable use of it. The defendants’ right is exclusive only tо the extent that plaintiffs and future owners of lot # 14 may not grant other persons rights in the way. A reasonable construction of the 1925 deed and 1933 agreement, coupled with the parties’ conduсt for some fifty years, supports the conclusion that as to persons other than the owners of the servient estate (lot #14), defendants have an exclusive right in the unabandoned portion of their right-of-way.
See Cragin v. Woollett,
The defendants’ use of the right-of-way and wharf must, of course, be reasonable and must take into consideration both the contemplated use and changed circumstances.
See Sakansky v. Wein,
Exceptions overruled.