Thurston Enterprises, Inc. v. Baldi

128 N.H. 760 (1986)

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Nature of the Case

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Facts

P operated a marina. D operated a drive-in movie theater. In 1978, D sold part of his land to P. The transferred land was rocky, steep, and covered with slash. D was well aware that P wanted to develop the purchased land into parking and boat storage. The only way vehicles could reach it at the time D sold the land was to travel over D's drive-in theater. Consequently, D deeded P an easement across the theater. The easement is a fifty-foot-wide specified course. The easement passed under the theater marquee, past the ticket booth, and crossed into P’s parcel. 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. It was more than adequate for the theater traffic. In 1979, P used the easement to truck fill into his parcel. The paving was not meant for such use. Also, the ten-wheel trucks were too high to pass under the marquee and too wide to stay on the right of way as it deflected around the ticket booth. P's trucks deviated from the right of way into speaker aisles 1-3. The trucks destroyed the pavement and caused deep ruts in the earth, both in the right of way and in the speaker aisles. A repeat performance was given in the spring of 1980 and again in the spring of 1984. In 1984, D had had enough, and after P refused to cease, D blocked the entrance to the right of way with a pickup truck. P sued and D countersued. The master ordered P to repave the right of way. D was not entitled to a revocation of the easement, nor could D insist that P use the new, alternative access. The master found that D had no duty to relocate the preexisting marquee and ticket booth. P was ordered to repair the speaker aisles, limit his trucks to no more than five per day, and to rebuild the rutted right of way. Since the master believed the new paving would be an improvement constituting a betterment for D, he recommended that two-thirds of the reconstruction be paid for by P and one-third by D. P and D appealed. D contends he has no duty to share the cost of reconstruction and that now that P has an alternative access point, the easement should be revoked. P claims 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 jurisdiction; 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.