Real Property Law

Jennifer Codding
Strategic Litigator and Senior Counsel
Massey Law Group Tampa, FL

No. 2018-0094

June 7, 2019


  • Issue: Whether the Town was the owner of a levee pursuant to RSA 482:11-a (2013), and therefore obligated under the statute to maintain and repair a levee.

The petitioner, the Town of Lincoln, appealed an order of the NH Water Council upholding a decision by the respondent, the NH Department of Environmental Services (DES), ordering the Town to repair the Pemigewasset River Levee.

In 1912, Franconia Paper Co. constructed a levee on company property. In 1959, the levee was damaged, and the Town voted to approve restoration by the US Army Corps of Engineers. To facilitate the project the residents authorized the Town to “acquire any real estate interests” necessary for the project. Subsequently, the Town entered into a Right-of-Entry Agreement (REA) with the fee owner. The REA provided that the fee owner and its successors and assigns would retain all rights in the land that would not interfere with those it had granted to the Town and the US. In a 1971 deed, the Town and US retained the right to enter the property to inspect the levee with a view of maintenance and operation.

In 2011, the levee was severely damaged. The DES issued a Letter of Deficiency to the Town. The Town responded that it was not the owner of the levee but was planning to repair the levee none-the-less. After the Town and DES failed to agree on how to proceed, the DES ordered the town to repair the levee, concluding, that the Town owned the levee. The Town appealed to the Water Counsel. The Water Counsel upheld the decision holding that the Town’s easement interest was sufficient under RSA 482:11-a for purposes of imposing maintenance requirements on the Town. This appeal followed.

On appeal, the Town contended that it’s easement interest in the property did not constitute “ownership” and argued the word “owner” means one who has a “legal, rightful, or equitable title” to the property and that its mere right of access was insufficient to render it an owner. DES acknowledged that the Town was not the fee simple owner but argued fee ownership is not required under the statute pursuant to Appeal of Michele.

RSA 482:11-a provides “[t]he owner of the dam shall maintain and repair the dam so that it shall not become a dam in despair.” The DES argued the facts were consistent with Michele. In Michele, easement holders were found to be owners under RSA 482-A:11, II for the purposes of obtaining a permit because the easement at issue provided the easement holders had the right to exclusive use of the easement area for whatever purpose they desired. The Court found Michele did not lend support to the argument that the Town was an owner because the Town’s easement was significantly more narrow — the Town only had a limited right to enter upon the lands to inspect the levee for maintenance and operation. In fact, the REA reserved for the fee owner all property rights not granted to the Town. Further, the Court found that the fact that the Town previously had agreed to take responsibility for the levee’s maintenance and repair or entered into a “series of transactions” regarding the easement did not mean that the Town was imposed with additional obligations of ownership.

In conclusion, the Court held that not all easements are equal and, because the Water Council’s conclusion that the Town was an owner of the levee under the statute was dependent on flawed reasoning, the Town met its burden to show that the order of the Water Council was unreasonable or unlawful.

Justices Lynn and Donovan dissented arguing the statutory purpose of lessening flood damage and enhancing public safety supported a broad construction of the word owner. Further, the dissent contended that Michele controlled and relied on the broad proposition that an easement holder is an owner. The dissent further concluded that it was “eminently fair and reasonable” to impose the obligations of the statute upon the Town because the levee was “restored for the benefit of the public using public monies as a result of the vote of the Town’s residents.”


Upton & Hatfield, of Portsmouth and Concord (Russell F. Hilliard and Brooke Lovett Shilo on the brief, and Mr. Hilliard orally), for the petitioner. Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant attorney general, on the brief and orally), for the respondent