Although our cases set forth the elements of the nuisance cause of action, none of the cases mentions the plaintiff's burden of proof. See Heston v. Ousler, 119 N.H. 58, 60, 398 A.2d 536, 537 (1979); Piecuch v. Manchester, 114 N.H. 8, 9, 314 A.2d 642, 643 (1974); Robie v. Lillis, 112 N.H. 492, 495-96, 299 A.2d 155, 158-59 (1972); Ferguson v. Keene, 108 N.H. 409, 410, 238 A.2d 1, 2 (1967); True v. McAlpine, 81 N.H. 314, 315, 125 A. 680, 681 (1924). [1, 2] In a civil action the burden of proof is generally on the plaintiff to establish its case by a preponderance of the evidence.
These private rights of littoral owners include but are not necessarily limited to the right to use and occupy the waters adjacent to their shore for a variety of recreational purposes, the right to erect boat houses and to wharf out into the water. Hoban v. Bucklin supra; State v. Stafford Company supra; Heston v. Ousler, 119 N.H. 58, 398 A.2d 536 (1979). We have also held that these private littoral rights are incidental property rights which are severable from the shore property itself and may be conveyed separate from the littoral property.
The application of this rule raises a question of fact to be determined by consideration of all the surrounding circumstances . . . . Sakansky v. Wein, 86 N.H. 337, 339, 169 A. 1, 2 (1933) (citations omitted); see Heston v. Ousler, 119 N.H. 58, 398 A.2d 536 (1979). In deciding what was reasonable use, the trial court heard the testimony of witnesses, had the benefit of a view, and considered that "both parties have engaged in a series of actions designed to harass the other.
In determining riparian rights where the shoreline is angled, as it is in this case, some jurisdictions have used the "angle bisection formula," see Randall v. Ganz, 537 P.2d 65 (1975), other jurisdictions have used the "reasonable use" delineation. See Heston v. Ousler, 398 A.2d 536 (1979). In the absence of any controlling authority concerning the issue of proper allocation of water space between abutting riparian owners where the configuration of the shoreline is essentially a right angle, as here, we believe the "reasonable use" test to be the most equitable method to determine the owner's rights.
What is reasonable is a question of fact, to be determined by weighing a variety of factors.See Braham v. Fuller , 728 P.2d 641, 642 (Alaska 1986) (defining reasonable use rule in context of melting permafrost); see also Heston v. Ousler , 119 N.H. 58, 398 A.2d 536, 538 (1979).See G & A Contractors, Inc. v. Alaska Greenhouses, Inc. , 517 P.2d 1379, 1386 (Alaska 1974) ; see also Weinberg v. N. Alaska Dev. Corp. , 384 P.2d 450, 452-53 (Alaska 1963).
The Town acknowledges that we have rejected the policy of strictly construing restrictive covenants. SeeJoslin, 116 N.H. at 817, 367 A.2d 599 ; Heston v. Ousler, 119 N.H. 58, 63, 398 A.2d 536 (1979). It nonetheless contends that any covenant not expressly labeled as "in gross" must be deemed to be appurtenant, regardless of the true intention of the parties at the time of the servitude's creation.
Merely converting certain submerged wetlands to mud, and lowering the water level of the pond, thereby allegedly compromising, in an undefined way, a littoral owner's access to the water, is insufficient to establish a private nuisance claim. Cf. Heston v. Ousler, 119 N.H. 58, 61, 398 A.2d 536 (1979) (upholding master's finding that defendants' dock constituted a nuisance where the dock completely obscured the plaintiffs' view of the water and “created a safety hazard for the plaintiffs when swimming within their own water space”); Sundell v. Town of New London, 119 N.H. 839, 843, 844, 409 A.2d 1315 (1979) (littoral owners could recover for reduced enjoyment of lake waters resulting from pollution-caused algae blooms which “caused the water to become ‘pea soup’ in color, lose transparency, give off foul odors, leave slime on the shore and kill fish, which then wash[ed] up onto the shore”). Indeed, the petition does not allege that the affected area no longer constitutes wetlands.
1995). Thus, in this case, where Tarbell alleges that the City's actions in creating a private nuisance, see Heston v. Ousler, 119 N.H. 58, 60-61, 398 A.2d 536 (1979), and intentionally trespassing upon the property amount to a physical taking of the property, cf. Gilman, 55 N.H. at 137-38, discretionary function immunity does not bar these claims. To hold otherwise would require an expansion of the scope of immunity, rather than limit such immunity, as Merrill intended.
"We will not substitute our own judgment for that of the trier of fact if it is supported by the evidence, especially when he has been assisted in reaching his conclusions by a view." Heston v. Ousler, 119 N.H. 58, 60, 398 A.2d 536, 537 (1979). Here, evidence showed that Red Hill was cleared in the fall from 1991 to 1993 during club work sessions in preparation for skiing, that people skied on the property for a few days in February 1993, and that current facilities at Red Hill include a rope tow, clubhouse, storage shed, lights, and snow-packing equipment.
[2, 3] We decline to adopt this argument for two reasons. First, we note that "we have rejected the traditional policy of strictly construing [restrictive covenants]," Heston v. Ousler, 119 N.H. 58, 63, 398 A.2d 536, 539 (1979); see also Joslin v. Pine River Dev. Corp., 116 N.H. 814, 817, 367 A.2d 599, 601 (1976), and have observed that "[t]hey are particularly useful devices in planning the development of lake communities," Joslin supra. Second, a reading of the entire Gephart-Reardon deed, based on the principles of construction just stated, convinces this court that the privilege to convey free from restrictions applies only to the restrictions imposed by the right of first refusal. This interpretation is bolstered by the fact that the provisions for first refusal and right to convey free from restrictions do not appear in the deed to the Daigneaults. Presumably, the condition to so convey has been met, as asserted by the Daigneaults, and the right of first refusal, being terminated, is not meant to be included in this deed.