This case presents cross appeals from the determination by a Master {Mayland H. Morse, Jr., Esq.), approved by the Superior Court (O’Neil, J.), of the parties’ rights and duties in an easement. For the reasons that follow, we affirm in part, vacate in part, and modify in part.
Thurston Enterprises, Inc. (“Thurston”) petitioned to enjoin Lawrence Baldi (“Baldi”) frоm blocking the easement and to compel Baldi to remove or alter certain permanent obstacles. Baldi counterclaimed for $500,000 damages and for permanent revocation of the easement. The trial court severed the claims for damages. Thе master heard testimony and made his own observation of the site. He made the following findings of fact, which the parties do not dispute.
Thurston operated a marina. On adjoining property, Baldi operated a drive-in movie theater. In 1978, Baldi sold part of his land to Thurston. The transferrеd land was rocky, steep, and covered with slash. Baldi knew Thurston planned to develop the land into parking and boat storage facilities for the marina. Although there is now an alternative access, the only way vehicles could reach it at the time Baldi sold the land was tо travel over Baldi’s drive-in theater. Consequently, Baldi deeded Thurston an easement across the theater.
The easement is a fifty-foot-wide specified course. It begins at the theater entrance on Route 3, passes under the theater marquee, continues past the ticket booth, which sits roughly in the center of the right of way, and crosses the theater lot to Thurston’s parcel. The ticket booth and the marquee, which was less than ten feet high, were preexisting and, of course, openly visible structures, but they were neither mentioned in the deed nor drаwn on the subdivision map. At the time of the easement grant, most of the right of way, along with much of the rest of the patron parking area, was paved with a light asphalt “farm mix” on a three inch sand base. Although this farm mix was beginning to deteriorate after several years of use, it was adequаte for the theater traffic. The deed subjected the easement to three limitations, only the first of which is significant in the present controversy. Limitation A reads: “The easement granted herein shall not interfere with the Grantor’s use of the property subject to the easement.”
In thе spring of 1979, Thurston began using the easement to truck fill into his parcel. The light paving was not designed for heavy truck traffic. Furthermore, the paving was especially vulnerable in the spring, when frost melt destabilized the sand bed and water puddled deeply on the surface. The ten-wheel trucks wеre too high to pass under the marquee and too wide to stay on the right of way as it deflected around the ticket booth. Consequently, Thurston’s
The master concluded that, at the time of the conveyance, neither party contemplated such extensive use of heavy trucks. He found that Thurston had caused the destruction of the surface and subsurface of the right of way by using the easement unreasonably and by enlarging upon the granted easement. Accordingly, he ordered Thurston to repave the right of way. Specifically, he recommended that Baldi was not entitled to a revocation of the easement, nor could Baldi insist that Thurston use the new, alternative access. On the other hand, the master found that Baldi had no duty to relocate the preexisting marquee and ticket booth. Thurston was ordered to repair the speaker aisles, limit his trucks to no more than five per day, and to rebuild the ruttеd right of way. The master recommended the rebuilt right of way have a sub-base of one foot of bank-run gravel and a base of six to nine inches of crushed gravel compacted to receive a surface layer of three to six inches of asphalt concrete paving mixed with different sized aggregates. This construction is approximately equal to the paving specifications for federal highways. Since the master believed the new paving would be an improvement constituting a betterment for Baldi, he recommended that two-thirds of the reconstruction be paid for by Thurs-ton and one-third by Baldi.
On appeal, Baldi contends he has no duty to share the cost of reconstruction. Additionally, in oral argument, we asked Baldi’s attorney to discuss the alternative access, although he had not briefed a claim that the easement should be revoked. Thurston makes seven arguments, which can be grouped into four classes: that he is entitled to removal of the marquee and ticket booth; that restoring the speaker lanes and the right of way is an assessment of damages beyond the scope of equity jurisdiсtion; that the restriction to five trucks per day was arbitrary and an abuse of discretion; and that he cannot be required to put the right of way into a better condition than it was when it was conveyed to him, either by upgrading the paved portions or by paving the unpaved portions.
We affirm in part, and modify in part, but vacate rulings on several issues that should properly be resolved by the trial for
Thus, because the orders to repair look to remedy the effects of past conduct, we vacate them. Those issues involve legal questions of damage. In the present circumstances, reparation is not the same as restitution. We respectfully advise the superior court to allow the parties to litigate these damage issues in the severed action, with leave to amend their pleadings if necessary. We emphаsize, however, that our decision to vacate these rulings does not mean Thurs-ton has no prospective duty to maintain the right of way.
Thus, our inquiry focuses on three remaining issues. First, may Thurston still use the easement, in light of the alternative access? Second, if he may, do Baldi’s marquee and ticket booth improperly restrict Thurston’s reasonable use? Third, were the master’s recommendations concerning future truck traffic and right of way improvement erroneous as to what constitutes reasonable use?
When Thurston purchased the back acreage from Baldi, it was inaccessible to vehicles except through Baldi’s land. Had Thurs-ton not paid for an easement, equity would have implied one by necessity, although the implied easement might have been over a different course. Kimball v. Cochecho Railroad Co.,
The deed also controls the remaining questions. The meaning of a deed is ultimately a matter of law for this court to decide. Robbins v. Lake Ossipee Village, Inc.,
These circumstances distinguish the case from White v. Hotel Co.,
We turn now to the issue of traffic limits and right of way construction. We begin by repeating that an easement created by deed is always limited to a reasonable use. Here the legal implication of reasоnableness is reinforced by the express limitation restricting Thurston to non-interfering use. Thurston points us to several cases which he claims hold that the grantee of an easement may use the easement as is necessary to develop his own estate; e.g., Sakansky,
The master found, upon ample evidence, that Thurston’s truck traffic had severely damaged the right of way and other areas of Baldi’s property. There was evidence that Baldi was unable to oрerate his theater with the property in its damaged condition, and on at least one occasion delayed opening his theater until he repaired the paving. We have previously held that “[t]he owner of an easement cannot materially increase the burdеn of it upon the servient estate[.]” Crocker,
While this might leave the right of way better than when Baldi granted the easement, it is not a betterment which Baldi must pay for. He receives no benefit from the improvement. In effect, to require Baldi to contribute to the cost of Thurston’s improvements would be to require Baldi to subsidize Thurston’s enterprise. This the grantor of an easement has no obligation to do. In Maddock v. Chase,
Affirmed in part; modified in part; vacated in part; remanded.
