Marshall & Burke
Annotate this CasePlaintiffs Alfred and Susan Marshall appealed a superior court's order that granted summary judgment in favor of the defendants on Plaintiffs' claim to a prescriptive easement over defendants' beach front property (the “Beach Lot”) Plaintiffs' and defendants' lots were originally part of a parcel acquired by Francis Lord in 1871. Lord sold several beachfront lots (but not the Beach Lot) during his lifetime. After Lord’s death, his heirs continued to sell parcels from his land, including several non-waterfront back lots. The Town of Ossipee (Town) acquired title to the Beach Lot by a tax collector’s deed in 1987. The Town conveyed the Beach Lot by quitclaim deed in 1993. In June 2010, Plaintiffs filed this action for the court's determination that they held prescriptive rights to use the Beach Lot. Plaintiffs claimed that, prior to the Town’s acquisition of the Beach Lot by tax deed in 1987, they and their predecessors had made more than twenty years of open, adverse, continuous and uninterrupted use of the Beach Lot to access Lake Ossipee, thus giving them a prescriptive easement over that lot. The defendants challenged Plaintiffs’ claim on five grounds, one being that any prescriptive easement to use the Beach Lot, which may have existed prior to 1987, was extinguished by the Town’s acquisition of the property by tax deed in that year. Without deciding whether Plaintiffs actually had an easement prior to 1987, the court held that even assuming such easement existed, the tax deed cut off even ripened prescriptive rights as a matter of law. On appeal, Plaintiffs argued that that the trial court erred in determining any easement they might have had prior to the tax deed was extinguished by that deed. Upon review, the Supreme Court agreed with Plaintiffs, and reversed the superior court's decision. The case was remanded for further proceedings.
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