NH Supreme Court Reverses Adverse Possession Ruling Over Right-of-Way Dispute in Rumney

Background

Yvonne Downes owns property on Route 25 in Rumney. Her deed reserves a 20-foot-wide right-of-way (ROW) known as Risley Road, which provides access to six other properties in the subdivision. The ROW lies entirely on Downes’ land and runs along her northern boundary. The deed states the ROW benefits all lots in the subdivision and each owner must pay one-sixth of the maintenance costs.

Kenneth and Donna Sarpi own the abutting lot. In 2021, they built a fence that enclosed a six- to eight-foot-wide “hump” or “bulge” within the ROW and pushed the traveled portion of the roadway further onto Downes’ land. Downes sued, alleging trespass and nuisance, and sought damages and an order requiring the Sarpis to remove the fence.

The Sarpis counterclaimed, asserting they and their predecessors had used the disputed area openly and continuously since at least 1996. They argued their use met the requirements for adverse possession.

Superior Court Decision

The court found that since 1996, the Sarpis and prior owners had maintained the disputed area as a lawn, planted flowers and mulch beds, and occasionally parked or played there. The court emphasized Ms. Sarpi’s testimony about various improvements, including fences, gravel walkways, and curbing beams, as well as aerial photographs showing the ROW curving away from the Sarpi home.

The court rejected Downes’ argument that these activities were too occasional to qualify as adverse possession. It found the use sufficiently open and notorious to put Downes and prior owners “on guard” and quieted title to the disputed area in favor of the Sarpis.  Downes appealed to the New Hampshire Supreme Court.

Supreme Court Decision and Reasoning

The Supreme Court reversed. To succeed on an adverse possession claim, a party must prove twenty years of continuous, exclusive, and notorious use that alerts the true owner to the adverse claim. The Court emphasized that New Hampshire courts strictly construe the evidence in adverse possession claims: “[I]n this case the record demonstrates that, prior to the installation of fencing [in 2021] and berms [sometime after 2009], the defendants and the prior owners of their property maintained the disputed area by occasionally mowing it, planting flowers and allowing a child to play on it, and occasionally using it for parking.  Consistent with our caselaw, we cannot conclude that these uses are sufficiently notorious to support an adverse possession claim.”

The Court also found the superior court failed to fully consider the legal significance of the area being part of a shared ROW. All lot owners had a deeded right to use and maintain the ROW, including the Sarpis. That permissive right undermined the Sarpis’ claim of exclusive use.

Although fencing off a ROW can become adverse under some circumstances, the Court concluded the Sarpis’ more aggressive changes occurred within the statutory period and did not support a valid adverse possession claim. As a result, the Court reversed the superior court’s ruling and remanded the case.

Downes v. Sarpi, No. 2024-0204 (June 3, 2025).  (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority, but it may provide guidance on how a New Hampshire court might rule if presented with similar facts.)

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