New Hampshire Bar Journal
2011 Winter, Pg. 50.
Nullum Tempus Occurrit Regi: An Antidemocratic Anachronism Survives in New Hampshire
New Hampshire Bar JournalVolume 51, No. 2Winter 2011Nullum Tempus Occurrit Regi: An Antidemocratic Anachronism Survives in New HampshireBy Michael J. Malaguti(fn1)I. INTRODUCTION
At common law, the doctrine of sovereign immunity shielded the monarch from all legal liability.(fn2) This followed logically from the generally accepted proposition that "the king can do no wrong."(fn3 )A corollary to the doctrine of sovereign immunity exempted the monarch from generally applicable statutes of limitations.(fn4) This doctrine is known as nullum tempus occurrit regi-"time does not run against the king."(fn5) Historically, sovereign immunity and nullum tempus have allowed the monarch to "enjoy [ ] complete immunity from suit"(fn6) and to institute suit himself for an infinite time after a cause of action accrues.(fn7)
Surprisingly, both doctrines survived and prospered even after the American Revolution.(fn8 )During the twentieth century, sovereign immunity came under attack and has been largely abolished or limited. But even where sovereign immunity has been completely abrogated, nullum tempus often survives.(fn9) Such is the case in New Hampshire, where the Supreme Court recently breathed new life into nullum tempus in State v. Lake Winnipesaukee Resort despite a legislative waiver of sovereign immunity.(fn10)
The Lake Winnipesaukee decision is flawed because the Court erroneously distinguishes nullum tempus and sovereign immunity and mistakenly reasons that a legislative prohibition on adverse possession against the state is functionally a codification of nullum tempus. In so reasoning, the Court neglects the essential differences between tort and contract law on one hand, and property law on the other, and glosses over substantial authority recognizing that nullum tempus is merely an aspect of sovereign immunity. In Part I, I will briefly chronicle the Court's unanimous decision before outlining the problems with that decision in Parts II, III, and IV. In part V, I call for the New Hampshire legislature to abolish nullum tempus since the doctrine is little more than a vestige of feudalism State v. Lake Winnipesaukee Resort.
In May 2001, Lake Winnipesaukee Resort ("LWR") retained Peerless Golf, Inc. ("Peerless") to build a golf course.(fn11) During construction, the New Hampshire Department of Environmental Services ("DES") became aware of environmental problems stemming from the construction.(fn12) DES issued an order in August 2001 "requiring LWR to mitigate environmental damage and to cease disturbing soil."(fn13) Peerless completed construction after DES lifted the order.(fn14)
In August 2006, the state filed suit in New Hampshire Superior Court seeking civil monetary penalties for the alleged violation of two New Hampshire statutes:(fn15) "Fill and Dredge in Wetlands"(fn16) and "Water Pollution and Waste Disposal."(fn17) Given that the alleged violations took place more than four years before(fn18) and the general statute of limitations in New Hampshire is three years,(fn19) Peerless asserted the statute of limitations as an affirmative defense and moved to dismiss.(fn20) The Superior Court denied Peerless' motion, but allowed an interlocutory appeal to the Supreme Court.(fn21) On appeal, the Supreme Court addressed squarely the issue of" [w]hether the state has an unlimited period of time within which to bring suit under [the] civil enforcement statutes [at issue in this case] which do not contain specific limitations periods."(fn22)
The New Hampshire Supreme Court handed down a unanimous Lake Winnipesaukee decision in June 2009.(fn23) The Court held that, "although [nullum tempus] seldom surfaces within [its] jurisprudence, [the doctrine] endures as a recognized doctrine of law in New Hampshire."(fn24) in so holding, the Court addressed two broad issues: whether, and to what extent, nullum tempus is a vital part of the state's common law, and if the doctrine survives, whether to abolish it in Lake Winnipesaukee.
The Court began its decision by examining the line of New Hampshire cases which deal, directly or indirectly, with nullum tempus. The first of these was Weber v. Chapman, an 1861 case that held "[a] grant will be presumed from lapse of time, against the state or sovereign, as well as against individuals. And the same doctrine applies with equal force, and should be applied for the same reasons, to the case of public highways."(fn25) Weber stood for the proposition that individuals could obtain title to public lands by adverse possession.(fn26 )But the decision was quickly abrogated by statute and reversed by the Court.(fn27) in two twentieth century decisions-In reDockham Estate(fn28) and Reconstruction Finance Corporation v. Faulkner(fn29) -the Court applied nullum tempus and reaffirmed its continuing vitality under New Hampshire common law. The Lake Winnipesaukee Court also noted that...