January 13, 2021
Vacated and Remanded
- Whether the owner of landlocked property has an easement for ingress and egress over a public highway that was discontinued by town vote prior to enactment of the statutory right of access.
- Whether the trial court properly ruled as to the width and permitted use of the easement.
Plaintiff appealed, and Defendants cross-appealed, the trial court’s order finding that Plaintiff had an easement across Defendants’ property to access his landlocked property. Plaintiff appealed portions of the order relating to the width and permitted use of the easement. Defendants’ cross appeal presented an issue of first impression: whether the owner of landlocked property has an easement for ingress and egress over a public highway that was discontinued by town vote prior to the enactment of the statutory right of access.
Plaintiff purchased property in 2004 that lacked frontage on a public highway. Rather, it abuts a discontinued public highway, Bowker Road, laid out in 1766 and discontinued by town vote in 1898. Handwritten records from 1766 indicated the highway was to be three rods wide. Historically, Bowker Road was used to access residential property and farmland.
The Court first addressed Defendants’ argument that the trial court erred in ruling that because Bowker Road was discontinued in 1898, Plaintiff had an easement across Defendants’ property over Bowker Road to access his parcel by operation of common law. Defendants argued that, absent a statutory right of access in effect at the time of discontinuance, there was no easement solely because the public highway was discontinued. The Court found that, despite well established common-law principal relating to public highways, New Hampshire case law was silent as to whether a landowner retains a private right of access for ingress and egress over a highway after it has been discontinued. Bowker Road’s discontinuance occurred before the statutory right of access existed. The Court found, however, that New Hampshire case law demonstrates that right of access to one’s property is fundamental to property ownership. Adopting Defendants’ position would be counter to this right.
The Court held that, absent a statutory right of access, an easement exists over a discontinued highway when it is reasonably necessary for access. Because the trial court did not rule on Plaintiff’s prescriptive easement claim and therefore did not rule on whether the easement was reasonably necessary to access Plaintiff’s land, the Court vacated the trial court’s determination and remanded for the trial court to determine, in the first instance, whether an easement over Bowker Road is reasonably necessary to access Plaintiff’s property.
The Court then addressed Plaintiff argument that the trial court erred in its ruling on the width of the easement. The Plaintiff argued that the trial court relied too much on three historical maps, and should have used the town’s handwritten notes from 1766 or current Department of Transportation guidelines for Rural Subdivision Streets in ascertaining the width. The Court found that the trial court was free to weigh the evidence presented to it, and the handwritten notes were not an express easement and did not constitute a deed, so the trial court was not required to rely upon it. The Court ultimately deferred to the trial court’s weighing of the evidence and affirmed its ruling on the easement’s width.
The Court then addressed Plaintiff’s argument that the trial court erred in limiting the use of the easement residential and agricultural uses, because current zoning regulations provided the same limitations, and if the zoning regulations were changed, the easement would remain limited. The Court noted that the trial court applied the well-established “rule of reason” to ascertain the reasonable use of the easement over a discontinued highway. Because the Plaintiff failed to challenge the trial court’s finding that the historical use of Bowker Road was limited to residential and agricultural purposes, the Court found no error in the trial court’s ruling.
Lauren Shearer, pro-se, on the brief, for the plaintiff. Getman, Schulthess, Steere & Poulin, Manchester (Clara E. Lyons, on the brief), for the defendants.