2005 Fall, 56. ROADS REVISITED Creation and Termination of Highways in New Hampshire - An Update.

AuthorBar Journal Author - Attorney Paul J. Alfano

New Hampshire Bar Journal


2005 Fall, 56.

ROADS REVISITED Creation and Termination of Highways in New Hampshire - An Update

New Hampshire Bar Journal Volume 46, No. 3, Pg. 56 Fall 2005 ROADS REVISITED Creation and Termination of Highways in New Hampshire - An Update Bar Journal Author - Attorney Paul J. Alfano

I. Introduction

"Go south on Grandview for .3 miles, right onto Ridgewood, sharp left after .2 miles, go straight another .3 miles, right onto Heidi for 1.1 miles, right onto Knox for .2 miles, last building on the left." It is tempting to describe navigation through New Hampshire highway law in terms equally as lurching as the directions between the Bow Municipal Building and the fire station. After all, it is a subject where a road not having the status of a "publicly approved street" still can mean the public at large has the full right to use the road, where a road "discontinued subject to gates and bars" does not mean the road is discontinued, and where a "dedication" sometimes means an acceptance has occurred and sometimes not.

Yet, at the same time, one finds consistency. The passage of 20 years has had a remarkable hold on both the General Court and Supreme Court. Public use of a road for 20 years may prove the creation of a highway under no less than four distinct theories, all of which still may be viable today.

This article updates a version previously published in the March 1990 issue of the New Hampshire Bar Journal. Much has changed since then. The Supreme Court has issued several important decisions and a few municipalities are, or soon will be, without any large tracts of developable land. One result of this continued development is the increased interest in so-called back lots, lots accessed only by paper streets.

Determining the legal status of a road, how it was created, and whether it was discontinued can have enormous consequences on property owners. Yet, while the outside landscape changes at a frenetic pace, the answer to a difficult problem may lie quietly inside a municipal file that has not been viewed for a hundred years.

A. Scope

As with the 1990 version, this article will define the various words used to identify highways. It then will describe the methods by which municipal highways may be created and discontinued. Finally, the article will describe the consequences of discontinuing highways, and will discuss the often-misunderstood maxim that abutters of discontinued highways take title to the "middle of the road."

Many related topics are beyond the scope of this article. Those topics include Class I, II, III and III-a highways (state highways), damages upon the laying-out or discontinuance of highways, scenic roads, emergency lanes, utilities, boating access highways, and rights of way for lumber removal.(fn1)

B. Definitions

What distinguishes a "way" from a "road," a "road" from a "street," a "street" from a "highway?" While only approximate and sometimes overlapping definitions exist, the following have the support of treatises and case law. These terms sometimes will be used interchangeably in this article to reflect the usage employed by the New Hampshire Supreme Court and the New Hampshire General Court.

1. Way

A way represents the broadest term used to describe a strip of land over which one or more individuals may pass. All highways are ways, but not all ways are highways. The term "way" is generic, "referring to many things besides roads."(fn2) A way may be either public or private.(fn3) Under the New Hampshire motor vehicle laws, "way" includes a wide array of public and privately owned areas available for public use, including parking lots maintained primarily for the benefit of paying customers.(fn4)

2. Road

The term "road" is "of greater significance than the term `way.'"(fn5) A road may be public or private. "If a road is free and common to all citizens, then it is a public road."(fn6) The New Hampshire Supreme Court once interpreted the word road in a deed reservation to mean a public highway.(fn7) A "town road" is defined by statute as a Class V highway.(fn8) A class V highway is a municipally maintained public road.(fn9)

3. Street

A street often is characterized as a public road located in a town or city.(fn10) A public road located outside a town or city would simply be labelled a road. In other words, a street is a town or city road.(fn11) While a road may be public or private, the term street should only apply to public roads located in cities or towns.

4. Highway

In lay terms, "highway" describes a multi-lane thoroughfare. In the law, the definition is more humble: "[i]f a way is one over which the public has a general right of passage, it is, in legal contemplation, a highway . . . ."(fn12) Once established, travelers have the right to do all acts reasonably incident to the viatic use of a highway, absent a valid discontinuance.(fn13)

A road can become a highway by four methods: being laid out according to statute (RSA 230 for state highways, RSA 231 for municipal highways), conveyance as such to a municipality, dedication and acceptance, and use for public travel for 20 years prior to January 1, 1968.(fn14) Once established, only a formal discontinuance can terminate the public's right to travel on a highway.15 If a bridge is serviced by a highway (versus a private road), then the bridge is considered part of the highway.(fn16) If a bridge services a private road, then the bridge is private.(fn17)

5. Legislative Body vs. Governing Body

Municipalities have the power to enact laws, often known as ordinances, and to enforce laws. Sometimes the same body does both, sometimes not. In many towns the legislative body is the town meeting. Zoning ordinances are adopted and amended at town meeting and budgets are approved at town meeting. The board of selectmen, on the other hand, handles the day-to-day operations of the town, and some of that responsibility is delegated further to a town manager. In cities, both the legislative and enforcement (or "executive") functions are vested in the city council. There are variations to both forms of government - some cities operate under a board of mayor and aldermen - but the principal is the same.(fn18)

The distinction between the legislative and governing functions in municipalities is important in road matters, and sometimes the line shifts. For example, until June 22, 1993, dedicated roads in towns could be accepted only at town meeting. Now that power may be delegated to the board of selectmen.(fn19)

Many cases dealing with road issues come before the Supreme Court from towns, so they refer to "town meeting" when addressing the legislative function. Except where directly relating to the facts of a specific case or where there is a quote from a case, the terms "legislative body" and "governing body" will be used to make clear the reference applies both to cities and towns.(fn20)

6. Definitions Contained in Zoning Ordinances

Sometimes the Supreme Court is asked to review cases interpreting definitions contained in zoning ordinances. The definitions found in these cases should be viewed in the context of what was before the Court.

For example, in one case the Court held that a road discontinued subject to gates and bars did not constitute a "public right of way" in an ordinance requiring buildings to border a public right of way for at least 200 feet.(fn21) On its face, this would seem to contradict the Court's long-standing position that the public has the right to travel over roads discontinued subject to gates and bars.(fn22) (The phrase "subject to gates and bars" is not defined by statute, but generally means the owner of the affected land may erect a gate or bar across the discontinued road. The public still has the right to use the road, but they must open and close as they pass.) However, the Court looked to another section of the ordinance defining a right of way as including all "town. . . highways."(fn23) The Court then looked to the predecessor to RSA 231:45 which provided (and still provides) that "[s]uch a discontinued highway shall not have the status of a publicly approved street." The Court finally concluded the road in question was not a "public right of way" under the town's zoning ordinance.

Similarly, in another case the zoning ordinance in question defined "right of way" as including "all city, state, and federal highways and the land on either side of same as covered by statutes to determine the width of the right of way."(fn24) The ordinance did not define "highway," so the Court looked to RSA 229:1 which defines a highway as including a "road which has been 'dedicated to the public use and accepted by the city or town' in which the road is located."(fn25) The Court therefore concluded "right of way" in the town's zoning ordinance essentially meant a Class V road, a definition far more restrictive than the common legal definition of right of way.(fn26)

"Street" in a zoning ordinance requiring lots to front on a street before a building permit may issue may mean a road suitable for travel by emergency vehicles.(fn27) This requirement probably means the road is either Class V (town maintained) or privately maintained but built to town specifications.(fn28) Class IV, V or VI highways which are discontinued and made subject to gates and bars are not publicly approved streets for zoning purposes.(fn29)

II. Highway Classifications

New Hampshire highways fall into seven...

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