NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Reporter, Supreme Court of New Hampshire, One Charles
Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that
corrections may be made before the opinion goes to press. Errors may be
reported by E-mail at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.

                    THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________


Rockingham
No. 2016-0491


                               BARBARA F. O’MALLEY & a.

                                              v.

                                   AARON LITTLE & a.

                                Argued: May 18, 2017
                           Opinion Issued: August 31, 2017

       Casassa Law Office, of Hampton (Daniel R. Hartley on the brief and
orally), for the plaintiffs.


       Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for Aaron Little and Maryann Little.

       LYNN, J. Defendants Aaron and Maryann Little (Littles) appeal an order
of the Superior Court (Anderson, J.) quieting title in the plaintiffs, Barbara F.
O’Malley and her daughter Helen T. O’Malley, of a strip of land based upon
adverse possession, as well as a previous order denying the Littles’ motion for
summary judgment.1 We affirm.



1Defendant Wells Fargo Bank, N.A. joined in the Littles’ motion for summary judgment, and
participated in the subsequent bench trial, but it is not participating in this appeal.
                                         I

       The pertinent facts are as follows. Barbara and her husband, Joseph,
acquired the property at 7 McKay Avenue in Hampton (McKay Lot) in 1963 for
use as a summer home. Over the next 50 years, the couple lived there with
their children, including their daughter Helen, during the summer months;
they also used the property for week-long vacations in April and intermittent
weekend trips. The backyard of the McKay Lot abuts the backyard of the
Littles’ property at 6 Francis Street (Francis Lot).

       In October 1993, Barbara contracted for the installation of a chain link
fence between the McKay Lot and the Francis Lot after tenants from the latter
began walking across the yard of the Francis Lot with beach chairs and
scratching Helen’s car. The fence was placed about three to five feet over the
property line between the two lots. Between the fence and the property line
(disputed area), there is a clothesline as well as an outdoor shower and grill, all
of which were used frequently by the O’Malley family. The plaintiffs and their
relatives and friends would occasionally park against the fence.

       In 1996, following the death of her husband, Barbara deeded the McKay
Lot to herself and her daughter Helen. Around this time, Helen planted three
rose bushes in the disputed area against the fence, one of which still exists.
Tenants of the Francis Lot and other individuals occasionally cut through a gap
that existed between the fence and another fence that separated two other
abutting properties, but few individuals walked across the disputed area. The
individuals who did cross the disputed area did so on only a few occasions.

       The Littles purchased the Francis Lot in December 2008. Upon
acquiring the property, the Littles assumed that the actual property line was
represented by the fence between the two properties. However, in the spring of
2010, Scott McCarthy, a prior owner of the Francis Lot, informed the Littles
that the plaintiffs’ fence encroached approximately three to five feet onto the
Francis Lot from the actual property line. The Littles confirmed this statement
by reviewing a survey plan and measuring the property line with a tape
measure. They then called the plaintiffs in April 2010 to inform them of this
discovery, before stating that they needed to move the fence. The plaintiffs
refused. The Littles claimed that, during this conversation, they gave the
plaintiffs permission to continue using the disputed area; the plaintiffs denied
that such permission was given. Aaron testified that, around this time, he
visited the O’Malley property and walked along the fence with Helen, asserting
that the correct boundary between the two properties was represented by
several pins from an earlier surveyor’s plan. However, the location of those
pins did not align with the property line depicted on the surveyor’s plan.

       Nothing more occurred until the fall of 2013, when the Littles once again
e-mailed the plaintiffs and requested that the fence be moved. Although the
Littles offered the plaintiffs a license to use the disputed area, the plaintiffs

                                         2
declined. In November, the Littles contacted the plaintiffs yet again and told
them to remove the fence by the end of the year. The Littles threatened to take
action to move the fence if the plaintiffs refused to relocate it. In December
2013, the plaintiffs instituted this suit to quiet title to the disputed area based
upon adverse possession. The Littles subsequently moved for summary
judgment. The trial court denied the motion. After conducting a two-day
bench trial in June 2016, the court found in favor of the plaintiffs. Specifically,
the trial court found that the plaintiffs did not receive permission to use the
disputed area in 2010, and that the Littles’ statement to the plaintiffs that the
fence needed to be moved “would not put a reasonably prudent person on
notice that they had actually been ousted.” This appeal followed.

                                        II

       On appeal, the Littles assert that they ousted the plaintiffs in 2010
and/or 2013, before the expiration of the 20-year statute of limitations
applicable to adverse possession claims, by asserting their title to the disputed
area and demanding that the fence be moved. The Littles further claim that
they implicitly granted the plaintiffs permission by demanding the removal of
the fence and then refraining from removing it. The Littles also contend that
the trial court erred in denying their pretrial motion for summary judgment.

       Dealing with the last issue first, we decline to entertain the merits of the
Littles’ claim that the trial court erred in denying their motion for summary
judgment because they have failed to brief a fundamental preliminary question
bearing on the issue: whether an erroneous trial court order denying summary
judgment is reviewable on appeal where, as here, the case proceeds to the
entry of a final judgment after trial. We have never addressed this question
and do not do so now. We note, however, that there is substantial authority for
the proposition that in such circumstances the trial record supersedes the
summary judgment record, thereby rendering any error in denial of summary
judgment unreviewable on appeal. See Ortiz v. Jordan, 562 U.S. 180, 184
(2011); Brown v. State Farm Fire & Cas. Co., 90 A.3d 1054, 1057 (Conn. App.
2014); Holloman v. McAllister, 345 S.E. 2d 728, 729 (S.C. 1986) (“A majority of
states considering the question hold that the denial of a motion for summary
judgment is not reviewable on appeal from the trial of a case on its merits.”).

       In reviewing a trial court’s decision rendered after a trial on the merits,
“we uphold the trial court’s factual findings and rulings unless they lack
evidentiary support or are legally erroneous.” Jesurum v. WBTSCC Ltd. P’ship,
169 N.H. 469, 476 (2016). “We do not decide whether we would have ruled
differently than the trial court, but rather, whether a reasonable person could
have reached the same decision as the trial court based upon the same
evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as
resolving conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence.” Id. (quotation omitted).


                                        3
“Nevertheless, we review the trial court’s application of the law to the facts de
novo.” Id.

                                                   A

       The Littles assert that the trial court erred by ruling that they did not
interrupt the plaintiffs’ possession of the disputed area. Specifically, they claim
that a rightful owner, to oust an adverse possessor, need only assert title and
demand that the adverse possessor leave. Consequently, they argue that the
trial court erred by requiring them to demonstrate either a clear intent to
retake possession of the property or actions sufficient to put a reasonably
prudent person on notice that he or she actually has been ousted. The Littles
rely primarily upon our decisions in Locke v. Whitney, 63 N.H. 597 (1885), and
Towle v. Ayer, 8 N.H. 57 (1835), to support their view.

       “To acquire title to real property by adverse possession, the possessor
must show twenty years of adverse, continuous, exclusive and uninterrupted
use of the land claimed so as to give notice to the owner that an adverse claim
is being made.” O’Hearne v. McClammer, 163 N.H. 430, 435 (2012) (quotation
omitted). The adverse possessor must prove these elements by a balance of
probabilities. See Blagbrough Family Realty Trust v. A & T Forest Prods., 155
N.H. 29, 33 (2007).

       A review of our jurisprudence with regard to this question indicates that,
contrary to the Littles’ claim, ouster requires significantly more than mere
verbal demands and assertions of title. In Locke, we held that a dispossessed
owner of a lot retained title against an adverse possessor. In the course of
reaching our decision we stated that the owner’s “entry upon the land” and
“claim of title” interrupted adverse possession. Locke, 63 N.H. at 597-98.
However, this statement was dicta; the decision in favor of the dispossessed
owner was ultimately based upon the fact that the adverse possessor was not
entitled to “avail himself of the possession of [prior possessors of the lot]
because he [did] not claim under them.” Id. Furthermore, we have recognized
that entry upon the land does not necessarily interrupt adverse possession.
See Alukonis v. Kashulines, 97 N.H. 298, 300 (1952) (holding that a survey of a
property did not interrupt the continuity of an adverse possession claim over
that property); Gallo v. Traina, 166 N.H. 737, 739 (2014) (holding that a party
failed to demonstrate that a trial court committed reversible error, where the
trial court asserted that a “mere casual entry by the record owner for a limited
purpose is not necessarily sufficient to destroy adverse possession” (quotation
omitted)).

      Given the conclusions of these decisions, as well as the paucity of facts
in Locke, we decline to find its dicta applicable here.2 See Locke, 63 N.H. at

2 The other case cited by the Littles, Towle, is not directly applicable, insofar as it addressed the
requisite degree of control for an adverse possessor to oust a rightful owner from his or her

                                                   4
598. On the contrary, ouster of an adverse possessor requires conduct that
puts a reasonably prudent person on notice that he or she actually has been
ousted. See Gallo, 166 N.H. at 739; see also Crone v. Nuss, 263 P.3d 809, 818
(Kan. Ct. App. 2011) (“A true owner’s entry will toll the statute of limitations if
his or her acts of dominion are such that they put a reasonably prudent person
on notice that the true owner’s purpose is to resume possession of the land
and that such person actually has been ousted.”).

       The Littles also rely on our decision in Zivic v. Place, 122 N.H. 808
(1982). However, we find that case distinguishable from this one. In Zivic, the
record owner of a road sent a letter to the person claiming an easement by
prescription that both asserted title to the road and gave the claimant explicit
permission to use the road. See Zivic, 122 N.H. at 812. We found that this
letter ended the adversity of the claimant’s use because he took no action after
receiving the letter to put the rightful owner on notice that his use of the road
was still adverse. Id. at 813. Here, the Littles did not grant the plaintiffs
explicit permission to use the area, and the plaintiffs ignored the Littles’
demands to move the fence, plainly indicating that their use was still adverse.
Thus, Zivic does not support the Littles’ position.

       Here, the Littles repeatedly claimed through telephone calls and e-mails
that the fence encroached their property and had to be moved. Yet demands
communicated over the telephone or by e-mail are no more effective at ousting
an adverse possessor in the present day than demands shouted from a nearby
property or delivered by letter would have been at the time of Locke. See Brown
v. Whitcomb, 550 A.2d 1, 4 (Vt. 1988) (“Mere verbal protestations without action
to reassert control or dominion over the disputed land does not interrupt the
adverse possessor’s interest in the property. . . .”). Although Aaron Little visited
the McKay Lot and conducted a walk along the fence with Helen, he did so
merely to reiterate his claim that the fence encroached on his property and had
to be moved, and took no further action against the plaintiffs until repeating his
demands in 2013. That action alone would not put a reasonably prudent
person on notice that he or she has been ousted.3 See Gallo, 166 N.H. at 739;
see also Brown, 550 A.2d at 4 (noting that, where there is “no evidence that
[record owner] took steps to eject [adverse possessors] or to disrupt their open
possession of the disputed parcel,” no interruption of adverse possession
exists). Thus, the trial court did not err in ruling against the Littles.

                                                 B

      The Littles also claim that their assertions of title constituted implied
permission to the plaintiffs to continue using the disputed area. In their view,
“a demand [to move the fence], followed by forbearance, is permission.”

property. See Towle, 8 N.H. at 58-63.
3 The value of the boundary walk as an act of ouster is further diminished by the fact that the

boundary asserted by Aaron at that time was incorrect.

                                                 5
Assuming without deciding that this argument is preserved for our review, we
reject it.

       “A use of land is adverse when made under a claim of right where no
right exists.” Mastroianni v. Wercinski, 158 N.H. 380, 382 (2009) (quotation
omitted). “To establish a prima facie case of adverse use, the [plaintiff] must
first produce evidence of acts of such a character that they create an inference
of non-permissive use.” Bonardi v. Kazmirchuk, 146 N.H. 640, 643 (2001).
“Once the [plaintiff] satisfies this initial burden, the burden shifts to the
[defendant] to produce evidence that the [plaintiff’s] use of the [disputed area]
was permitted.” Id. “The burden of persuasion remains at all times on the
[plaintiff].” Id.

      The determination of whether the use of a property has been adverse or
permissive is a matter of fact to be determined by the trial court. See
Ucietowski v. Novak, 102 N.H. 140, 145 (1959). The nature of the use, whether
adverse or permissive, may be inferred from the manner, character and
frequency of the exercise of the right and the situation of the parties. See id.
“We will reverse the trial court’s findings and rulings only if they are
unsupported by the evidence or are erroneous as a matter of law.” Bonardi,
146 N.H. at 643 (quotation omitted).

       We agree with the Littles that permission in the context of adverse
possession can be either explicit or implied. See Ucietowski, 102 N.H. at 145.
However, implied permission must be evidenced by the use of the property and
the “situation of the parties,” not by the Littles’ failure to oust the plaintiffs
after making a verbal assertion of title. Id. Here, the trial court evaluated the
evidence and concluded that there was insufficient evidence to find that the
plaintiffs’ control of the disputed area was either explicitly or implicitly
permitted. Upon reviewing the record, we find ample evidence that the
plaintiffs disputed the Littles’ assertion of title over the disputed area and
continually defied their demands to move the fence. Consequently, we cannot
say that the trial court’s ruling was unsupported by the evidence or erroneous
as a matter of law.4

                                                            Affirmed.

       DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

4 We note the peculiar outcomes that would be produced by the Littles’ construction of the
concept of implied permission. Under their view, a rightful property owner could undertake two
entirely opposing courses of action –– granting permission to an adverse possessor or demanding
that the adverse possessor vacate the property –– and nevertheless realize the same outcome:
permission. Furthermore, any property owner could end an adverse possession claim merely by
verbally demanding that the adverse possessor leave, because his or her subsequent forbearance
would constitute “implied” permission. Such an outcome would contradict our past cases, where
we have held that verbal protests are insufficient to end an adverse possession claim. See, e.g.,
Gallo, 166 N.H. at 739.

                                                6
