UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John and Brenda Galloway

v. Case N o . 11-cv-272-PB Opinion N o .

Stephen M . Brox

MEMORANDUM AND ORDER

This case involves a dispute over a right of way easement

that John and Brenda Galloway granted to Stephen Brox in 1988.

The Galloways argue that Brox breached a 2003 agreement

obligating him to pay for the cost of expanding the right-of-way

to accommodate his proposed use. They also seek an injunction

barring Brox from using the easement to access a concrete plant

that he proposes to build on an adjacent property. Brox

challenged the complaint with a motion for summary judgment.

For the reasons set forth below, I grant Brox’s motion.

I. BACKGROUND

The Galloways own a parcel of land straddling the border

between Kingston and Plaistow, New Hampshire, with rights of

frontage on Route 125. Brox owns an abutting thirty-acre parcel of land in Kingston that did not have access to Route 125 in

1988.

On March 1 , 1988, Brox obtained approval from the Town of

Kingston to build asphalt and cement plants on his land and he

recorded the approval later that month. He then began to

negotiate with the Galloways for a right of way over their land

to allow vehicles to access the proposed plants. The

negotiations culminated in an agreement executed on August 1 2 ,

1988 (the “1988 Agreement”) granting Brox a permanent right of

way easement (the “Easement”) over the Galloways’ land. Def.’s

Ex. B (Doc. N o . 6 - 4 ) . The agreement provides that Brox may use

the Easement solely “for the purpose of access to cement and

asphalt plants on [his] land.”

¶ 2 .

The Easement was recorded later that month. The deed

grants a “sixty foot right of way” to Brox and includes a single

attachment detailing the location of the Easement. Def.’s Ex. A

(Doc. N o . 6 - 3 ) . No other restriction is stated in the deed, and

no other document is incorporated by reference. See

The Galloways subsequently obtained a permit from the Town

of Kingston allowing them to construct an asphalt plant on their

land. Def.’s Ex. E at 2 (Doc. N o . 6 - 7 ) . While the Galloways

2 were constructing their plant, Brox became concerned that the

proposed location of the plant would invade his easement.

Brox hired a surveyor, and alerted the Galloways to his

discovery that the proposed plant would, in fact, invade the

Easement.

The Galloways disputed the location of the

Easement and challenged Brox’s rights to i t .

In response,

Brox filed suit against the Galloways to quiet title to the

Easement.

On August 5 , 2003, the parties entered into a

settlement agreement (the “2003 Agreement”) that revised the

location of the Easement. Def.’s Ex. D (Doc. N o . 6 - 6 ) . The

parties also agreed that Brox “shall bear the cost and expense

of expanding Galloways’ 10’ wide internal road . . . as needed

for Brox’s use and operations.”

¶ 1 . Lastly, the 2003

Agreement declared “all prior agreements between the parties,

including any letters of intent, . . . null and void.”

¶ 2 .

When the Galloways failed to sign or record the 2003

Agreement, and instead proposed an alternative plan that moved

the Easement approximately thirty feet from the location

described in the 2003 Agreement, Brox brought an action in

Rockingham Superior Court to enforce the terms of the agreement.

(Doc. 6-7 at 3 ) . The court concluded that the 2003 Agreement

3 was based on a mutual mistake as to the location of the

Easement. Id. at 6. Accordingly, the court reformed the 2003

Agreement to adopt the Galloways’ alternative location. Id.

The order was subsequently recorded at the Rockingham County

Registry of Deeds. See id. at 1 .

Shortly thereafter, the Galloways paved Roadstone Drive, a

private road on their property that includes a portion of the

Easement. They currently use Roadstone Drive to allow

commercial vehicles to access their asphalt plant.

In 2010, Brox submitted a new application to the Kingstown

Planning Board (the “Planning Board”) seeking site plan approval

for a concrete plant on his property. Brox listed the Easement

on his application as a means of accessing his land. The

Planning Board approved his application on August 1 6 , 2011. The

Galloways have challenged the Planning Board’s decision in New

Hampshire State Court, but their appeal was denied on March 1 4 ,

2012. Their motion for reconsideration is pending.

The parties do not dispute that Brox has never constructed

a concrete plant on his land, nor has he used the Easement to

access his land.

4 II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .

Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v . Catrett,

1 7 , 323 (1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v . One Parcel of Real Property with

Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson v .

Liberty Lobby, Inc.,

4 2 , 248 (1986)). If the moving

party satisfies this burden, the burden shifts to the nonmoving

party to “produce evidence on which a reasonable finder of fact,

under the appropriate proof burden, could base a verdict for i t ;

if that party cannot produce such evidence, the motion must be

granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 ,

94 (1st Cir. 1996); see Celotex,

.

5 III. ANALYSIS

The Galloways seek damages for breach of the 2003 Agreement

and an injunction barring Brox from using the Easement to access

his proposed concrete plant. I address Brox’s challenge to each

claim in turn.

A. Breach of Contract

The Galloways contend that Brox breached the 2003 Agreement

by listing the Easement on his site plan application without

paying for the paving that the Galloways had done over the

easement area. Brox counters that the agreement only obligates

him to pay for the expansion of the road once he has used the

Easement to access his land. The parties agree that listing the

Easement on the site plan application was the only use Brox has

made of the Easement. Def.’s Ex. F ¶¶ 2 ( a ) , 3 ( a ) , 4(c) (Doc.

No. 6-8).

Contract interpretation, “including whether a contract

term is ambiguous, is ultimately a question of law” for the

court. Daniel v . Hawkeye Funding, Ltd. P’ship,

8 1 ,

582 (2004) (quoting In re Reid,

(1998)

(internal quotation marks omitted)). When the parties dispute

the meaning of a contract’s language, the court will find that

6 the language is unambiguous if the parties could not reasonably

disagree as to its meaning. Sherman v . Graciano,

(2005). The court will “not perform amazing feats of

linguistic gymnastics to find a purported ambiguity.” Hudson v .

Farm Family Mut. Ins. Co.,

4 4 , 147 (1997). If the

language is unambiguous, the court will assign meaning to the

terms based on the plain meaning of the language used in the

contract. Ryan James Realty, LLC v . Vills. at Chester Condo.

Ass’n,

9 4 , 197 (2006); Baker v . McCarthy,

(1982).

The 2003 Agreement provides that Brox “shall bear the cost

and expense of expanding Galloways’ 10’ wide internal road for

two-way traffic as needed for [his] use and operations.” (Doc.

6-6 ¶ 1 ) . Apart from the agreement, neither party has presented

any evidence about the meaning of this language.

Although the parties disagree as to whether listing the

Easement on a site plan application constitutes “use,” I need

not reach that argument. The contract provides that Brox will

only bear the cost of expanding the Galloways’ internal road “as

needed for [his] use.” (Doc. N o . 6-6 ¶ 1 ) (emphasis added).

The Galloways do not claim that Brox needed to expand or

7 otherwise improve the Easement to list it on his site plan

application. Therefore, Brox did not obligate himself to expand

the road merely by listing the Easement in an application for

site plan approval.

B. Quiet Title Claim

The Galloways also seek an injunction to prevent Brox from

using the Easement to access his proposed concrete plant.1 In

support of this claim, the Galloways argue that the proposed use

should be enjoined both because the parties did not intend for

Brox to use the Easement to access a concrete plant and because

his proposed use is unreasonable even if it was an intended use.

1. Scope of the Easement

The Galloways’ first argument turns on the proper

interpretation of the Easement deed, which is a question of law.

Boissy v . Chevion,

8 8 , 391 (2011); Appletree Mall

Assocs., LLC v . Ravenna Inv. Assocs.,

4 4 , 347 (2011);

Lussier v . New England Power Co.,

(1990).

As a general rule, deed restrictions must be interpreted to

carry out the parties’ intentions. See Heartz v . City of

1 The Galloways alternatively request termination of the Easement, but provide no precedent to support this extreme remedy.

8 Concord,

(2002). When a deed’s language is

ambiguous, New Hampshire courts will apply a rule of reason to

“give reasonable meaning to general or unclear terms in the deed

language.”

When the deed’s language is “clear and

controlling,” however, that marks the end of the inquiry.

Lussier,

; see Heartz,

.

The Easement does not contain any restriction on the uses

to which it may be put. Moreover, the 1988 Agreement specifies

that the Easement may be used “for the purpose of access to

cement and asphalt plants on [Brox’s] land.” (Doc. N o . 6-4 ¶

2). To rebut this evidence, the Galloways offer only a sworn

affidavit in which John Galloway avers that “the parties

understood the easement would allow Brox to access his real

estate to build a garage which would be used to repair and

maintain his trucks.” Pl.’s Ex. A ¶ 3 (Doc. 8 - 2 ) . The

Galloways, however, provide no evidence to support their

conclusory assertion.

A conclusory statement unsupported by other evidence is

insufficient to satisfy the nonmoving party’s burden in opposing

a motion for summary judgment. Heartz,

; see

Lujan v . Nat’l Wildlife Fed’n,

7 1 , 888 (1990)

9 (acknowledging that object of summary judgment “is not to

replace conclusory allegations of the complaint or answer with

conclusory allegations of an affidavit.”); Sanchez v . Triple-S

Mgmt., Corp.,

, 12 n.11 (1st Cir. 2007). This is

especially true here, where the Galloways not only fail to

support their statement that the Easement was to be used to

access a garage, but also fail to explain how this proposed use

can be reconciled with a completely contradictory statement in

the 1988 Agreement.2

2. Unreasonable Burden

The Galloways further argue that Brox’s current proposed

use of the Easement is unreasonable even if the Easement was

intended to grant Brox access to his proposed cement and asphalt

plants. Even if a deed explicitly allows an easement to be used

for all purposes, “the parties involved must still act

reasonably under the terms of the grant so as not to interfere

with the use and enjoyment of each others’ estates.” Heartz,

(quoting Lussier,

5 8 ) . When the

2 The Galloways also argue that the 1988 Agreement is unenforceable because it was voided by the 2003 Agreement. Whether the 1988 Agreement is enforceable, however, is beside the point because here it is only used as evidence of “the position of the parties at the time of the conveyance.” Boissy,

. 10 rule of reason is applied “to determine whether a particular use

of the easement would be unreasonably burdensome,” the issue is

treated as “a question of fact that is determined by considering

the surrounding circumstances, such as location and the use of

the parties’ properties, and the advantages and disadvantages to

each party.”

at 3 3 1 , 332. “[I]f [, however,] the

complaining party fails to make sufficient factual allegations

of unreasonable use or burden, [the court] need only consider

the unambiguous language in the deed.” Id. at 332.

In the present case, the only evidence the Galloways cite

in support of their claim is their conclusory assertion that

Brox is proposing to use the Easement for “non-stop, heavy

construction traffic” over the Easement that “will result in

more maintenance and necessary upkeep to [the Galloways’]

private road.” (Doc. N o . 8-2 ¶¶ 5 , 7 ) . Just as the plaintiff’s

bare assertion in Heartz “that his property will be damaged” was

insufficient, so too is the Galloways’ unsupported statement

that Brox’s use will require “more maintenance and necessary

upkeep.” See

.

Because the Galloways have failed to produce sufficient

evidence to permit a reasonable fact finder to find in their

11 favor, I grant Brox’s motion for summary judgment on their claim

for injunctive relief.3

IV. CONCLUSION

For the reasons stated above, I grant Brox’s motion for

summary judgment on both claims (Doc. N o . 6 ) . The clerk is

directed to enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 2 3 , 2012

cc: Francis X . Quinn, J r . Charles P. Bauer, Esq.

3 Nothing precludes the Galloways from suing Brox again should evidence arise that his actual use of the Easement is unreasonable under the circumstances.

12