Glick v. Town of Ossipee, 87-441

• Decision Date: 11 July 1988
• Docket Number: No. 87-441,87-441
• Citation: 547 A.2d 231,130 N.H. 643
• Parties: Michael GLICK v. TOWN OF OSSIPEE.
• Court: New Hampshire Supreme Court

Page 231

547 A.2d 231

130 N.H. 643

Michael GLICK v. TOWN OF OSSIPEE.

No. 87-441.

Supreme Court of New Hampshire.

July 11, 1988.

Law Offices of James J. Kalled, Ossipee (Harvey J. Garod on the brief and orally), for plaintiff.

Patten and Helme, Ossipee (James R. Patten, orally, and Wenda T. Helme on the brief), for defendant.

H. Bernard Waugh, Concord, by brief for New Hampshire Mun. Ass'n, as amicus curiae.

JOHNSON, Justice.

The defendant, the Town of Ossipee (Ossipee), brings an interlocutory appeal pursuant to Supreme Court Rule 8 challenging the conclusion of the Trial Court (O'Neil, J.) that Ossipee Mountain Road, which furnishes access to property owned by the plaintiff, Michael Glick (Glick), is a class V highway that Ossipee has a duty to maintain. We reverse and remand.

The issue presented is whether a class V highway becomes a class VI highway pursuant to RSA 229:5, VII solely because a town does not maintain it for travel for five successive years or more.

On or about November 12, 1974, Glick bought a 43.6-acre tract of land known as the Marble Place, which is located in Ossipee and Moultonborough. In Ossipee, Glick gains access to his property by means of Ossipee Mountain Road. Ossipee has not maintained this road regularly for at least 30 years, yet loggers, hunters and fishermen traveled it long before Glick's purchase and have continued to travel it since his purchase. Ossipee has, however, repaired the roadbed within the past five years, in response to an emergency created by flooding. Although Ossipee Mountain Road is classified in the records of the New Hampshire Department of Transportation as a class VI highway, there is no evidence that Ossipee ever formally designated this road a class VI highway.

Glick, having failed at several town meetings to secure the designation of Ossipee Mountain Road as a class V highway, brought an action for declaratory judgment in the superior court, seeking to compel Ossipee to maintain the road as a class V highway. The trial court concluded that because the road has been: (1) traveled continuously for 30 years; (2) repaired by Ossipee during the past 5 years; and (3) free of gates and bars, it is a class V highway. The court therefore granted Glick's motion for partial summary judgment and denied Ossipee's motion for summary judgment.

Ossipee thereupon filed a motion for reconsideration and a motion for Rule 8 transfer to this court. Glick responded by filing a motion to compel Ossipee to maintain Ossipee Mountain Road pending the outcome of Ossipee's interlocutory appeal. The trial court denied Ossipee's motion for reconsideration, but granted its motion for Rule 8 transfer. The court also granted Glick's motion to compel Ossipee to maintain the highway pending appeal, but this court stayed the order.

Ossipee argues that five successive years or more of non-maintenance are sufficient to downgrade a highway from class V to class VI. Ossipee also argues that the mere fact that Ossipee Mountain Road has long been and is presently "traveled," within the meaning of RSA 229:5, VI, is not sufficient to make it a class V road. Glick contends that RSA 229:5, VI requires a road to be both unmaintained and untraveled in order for it to be downgraded from class V to class VI. We agree with Ossipee.

RSA 229:5, VI states: "Class V highways shall consist of all other traveled highways which the town has the duty to maintain regularly and shall be known as town roads." RSA 229:5, VII states "Class VI highways shall consist of all other existing public ways, and shall include all highways discontinued as open highways and made subject to gates and bars, and all highways which have not been maintained and repaired by the town in suitable condition for travel thereon for five successive years or more." The trial court, in ruling that the .9 mile section of Ossipee Mountain Road that provides access to Glick's property is a class V highway, misconstrued the words "which the town has the duty to maintain regularly" that conclude RSA 229:5, VI. The court apparently treated these words as mere surplusage in disregard of our observation that the legislature is not inclined to "waste its words." Blue Mountain Forest Ass'n v. Town of Croydon, 117 N.H. 365, 372, 373 A.2d 1313, 1317 (1977) (citing 2A Sutherland, Statutes and Statutory Construction § 46.06 (4th ed. 1973)).

In seeking to determine the intent of the legislature regarding a statute, we will consider the language and structure of the statute. Appeal of Public Serv. Co. of N.H., 125 N.H. 46, 52, 480 A.2d 20, 24 (1984) (citation omitted). A widely accepted rule of statutory construction is "... to read, and examine the text of a statute and draw inferences concerning its meaning from its composition and structure." State v. Flynn, 123 N.H. 457, 462, 464 A.2d 268, 271 (1983). "This court ascribes to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise." Id. (quoting Silva v. Botsch, 120 N.H. 600, 601, 420 A.2d 301, 302 (1980)).

The legislature has not defined class V highways as merely "traveled" highways, but rather, as "traveled highways which the town has the duty to maintain regularly." RSA 229:5, VI. Highways are class V, then, because they are both "traveled" and "maintained regularly." Had the drafters intended the statute to be construed as the trial court has construed it, they would have placed a comma between "highways" and "which", indicating that all "traveled" highways are class V and, therefore, that towns must regularly maintain them. Instead, the drafters left the comma out, indicating that class V is limited to those "traveled" highways that towns are obligated to maintain regularly.

The legislature's construction recognizes that many highways that have attained class VI status by virtue of having been formally discontinued subject to gates and bars are nevertheless "traveled," if only occasionally by hunters and fishermen. This construction also recognizes that class VI highways are full public highways that the public has the right to pass over, King v. Lyme, 126 N.H. 279, 283, 490 A.2d 1369, 1372 (1985) (citing Brown v. Brown, 50 N.H. 538, 550-51 (1871)); Proctor v. Andover, 42 N.H. 348, 351 (1861), even though such highways are not "approved public street[s]" for zoning purposes, RSA 231:45. Only a formal discontinuance can legally terminate the public's right to travel on any public way. Marrone v. Town of Hampton, 123 N.H. 729, 734, 466 A.2d 907, 910 (1983) (citing Hartford v. Gilmanton, 101 N.H. 424, 426, 146 A.2d 851, 853 (1958)) (citation omitted). Most importantly, the legislature's construction recognizes that if roads could be designated class V highways solely because they are "traveled," even those roads that have been discontinued subject to gates and bars would be class V highways deserving of regular town maintenance because people continue to travel them. The legislature clearly seeks to avoid this incongruous result by restricting the class V designation to highways that are both "traveled" and "maintained."

It is immaterial that Ossipee Mountain Road is not subject to gates and bars, because RSA 229:5, VII expressly includes under the class VI designation not only highways that are subject to gates and bars, but also "all highways which have not been maintained and repaired by the town in suitable condition for travel thereon for five successive years or more." Ossipee Mountain Road, by virtue of not having been maintained by Ossipee for 30 years, is a class VI highway.

It is also immaterial that Ossipee has repaired this road within the past five years, because the parties agreed that those emergency repairs, which occurred as a result of a severe flood and after this litigation began, would not be used to support a finding at trial that Ossipee has been maintaining this...