Marrone v. Town of Hampton

• Decision Date: 31 August 1983
• Docket Number: No. 82-331,82-331
• Citation: 123 N.H. 729,466 A.2d 907
• Parties: Michael MARRONE et al. v. The TOWN OF HAMPTON et al.
• Court: New Hampshire Supreme Court

Page 907

466 A.2d 907

123 N.H. 729

Michael MARRONE et al. v. The TOWN OF HAMPTON et al.

No. 82-331.

Supreme Court of New Hampshire.

Aug. 31, 1983.

Tetler & Holmes, Hampton (Wynn E. Arnold, Hampton, on brief and orally), for plaintiffs.

Shaines, Madrigan & McEachern, Portsmouth (John H. McEachern, Portsmouth, on brief and Charles W. Cross, Portsmouth, on brief and orally), for defendants.

BATCHELDER, Justice.

This case involves the private use by an abutter of a forty-foot-wide unpaved extension of a public street leading to Hampton Beach. The plaintiff property owners contend that they made "improvements" to the extension of James Street pursuant to an agreement with the town selectmen. The selectmen later ordered the plaintiffs to abate these "improvements." The plaintiffs, in turn, sought a permanent injunction against the enforcement of the town's order. The injunction was granted after a hearing before a Master (R. Peter Shapiro, Esq.) whose report was approved by the Superior Court (Contas, J.). The town appealed. For the reasons which follow, we reverse and remand.

The record below reveals that James Street, is used by the public and vehicles for access to Hampton Beach. The street runs in a general east-west direction. The portion of James Street closest to the beach is unpaved. On the north side of this unpaved section is property of one O'Shaughnessy which is protected by a seawall along its property line fronting the beach. Originally, there was no seawall either at the beach end of James Street where it runs to the high-water mark or on the south side of the street where the town-owned property borders the beach.

In July 1980, the plaintiffs entered into an agreement to purchase from the estate of Hazel Scribner a house known as 15 James Street. The house was built on land leased from the town of Hampton which was located on the south side of James Street across from the O'Shaughnessy property. Because assignment of town leases required approval of the board of selectmen, the plaintiffs and the selectmen entered into a series of negotiations extending from July through September 22, 1980, concerning the use and occupancy of 15 James Street.

The master made certain findings with respect to these negotiations. First, he found that although the plaintiffs originally planned to construct a seawall only on the beach side of their property, the selectmen suggested that the proposed seawall be extended across James Street so as to connect with the seawall of the O'Shaughnessy property on the other side. The selectmen also suggested that the seawall be backfilled to the west for stability and that stairs be installed so that the public would have access over the wall to the beach. The plaintiffs agreed to these proposals, and in turn, requested that they be permitted to landscape the area behind the seawall within the unpaved section of James Street. The master specifically found in this regard that

"[p]ermission was granted to landscape that area, provided a walkway was maintained to the beach. The Selectmen's counterproposal was made to afford greater protection to the property owners in the vicinity of James Street from the ravages of the sea."

At the September 22, 1980, meeting with the selectmen, a twenty-five-year lease was signed between the town and the plaintiffs for the property located at 15 James Street. The plaintiffs proceeded to make the various improvements in question. Besides the construction of the seawall across James Street where it ended at the beach, these improvements included the filling-in of the street behind the seawall, the planting of shrubs and trees, the addition of a paved pedestrian path along the northern side of James Street next to the O'Shaughnessy property, and the installation of a park bench in the vicinity of the paved path.

Photographic exhibits, which were part of the record, show that the effect of the "improvements" made by the plaintiffs was to reduce the forty-foot-wide extension of James Street into a pedestrian way and to divert foot travel to only that remaining portion of James Street closest to the O'Shaughnessy property. Furthermore, the plaintiffs constructed a deck as an addition to the former Scribner house which the town has alleged violates applicable zoning ordinances and extends into the portion of James Street in question.

In the spring of 1981, after having received complaints from persons in the neighborhood, the selectmen ordered the plaintiffs to remove the trees that had been planted in James Street, and otherwise to restore the right-of-way to its original condition except for the newly constructed seawall and attached stairs leading to the beach. The plaintiffs sought injunctive relief against the town from the enforcement of the order.

The master, however, found, after a view of the property, that the landscaping in the right-of-way was "tastefully done," the planting of trees for privacy was consistent with plantings on the other side of the right-of-way, and that the landscaping and other improvement were consistent with what the parties had negotiated and agreed upon. The master determined that these negotiations resulted in two contracts between the parties: one for the lease of land and the second for the construction of the seawall and landscaping of the public way.

The master further found that the defendant selectmen "knew that plaintiffs did not own the ... [Scribner house] at the time the application to construct a seawall ... was made, and knew or should have known that the construction of the seawall and appurtenances thereto was a major consideration for the plaintiffs' purchase of the leasehold interest and their improvement of the property." The master recommended that the town be permanently enjoined from clearing or causing to be cleared the improvements in the public right-of-way which were made by the plaintiffs. This recommendation was approved by the superior court and the injunction issued.

The town contends that the master's report disregarded the law concerning the selectmen's authority to curtail the use of a public highway or street. The town also disputes the master's finding that a deck constructed as an addition to the plaintiffs' house was properly authorized.

Generally, the law throughout the United States regarding encroachments on public streets is clear:

"A municipality cannot authorize a permanent encroachment, i.e., cannot confer power on abutters or others to occupy permanently a part of the street for a private use, unless such power has been expressly delegated by the legislature, and even then the property rights of abutters and nearby owners of adjoining property must not be infringed upon. If the municipality has no power to permit a particular use of the streets, such a use is unlawful and constitutes a nuisance."

10 E. McQuillin, Municipal Corporations § 30.73, at 765 (3d rev. ed. 1981) (footnotes omitted). Selectmen in New Hampshire are given broad statutory authority to regulate the use of public highways and sidewalks. RSA 41:11 and 47:17, VII. However, the discontinuance of an established town highway is not favored, and may be accomplished only by vote of the town. Davenhall v. Cameron, 116 N.H. 695, 697, 366 A.2d 499, 500 (1976); RSA 231:43; see Williams v. Babcock, 121 N.H. 185, 194, 428 A.2d 108, 113 (1981).

Once a public highway is established, absent a valid discontinuation, travelers over it have the right to do all acts reasonably incident to a "viatic use" of the road. Hartford v. Gilmanton, 101 N.H. 424, 426, 146 A.2d 851, 853 (1958) (citation omitted). Review of the record indicates that the entire length of James Street has been laid out by the town for public use, and such a road is considered a highway. See RSA 229:1. There was also...