Blagbrough v. Town of Wilton
| Decision Date | 05 July 2000 |
| Docket Number | No. 99–015.,99–015. |
| Citation | 145 N.H. 118,755 A.2d 1141 |
| Court | New Hampshire Supreme Court |
| Parties | Corinne BLAGBROUGH and another v. TOWN OF WILTON. |
Cook & Molan, P.A., of Concord (John S. Krupski, on the brief, and Shawn J. Sullivan orally), for the plaintiffs.
Devine, Millimet & Branch, P.A., of Manchester (John P. Sherman, on the brief and orally), for the defendant.
The defendant, Town of Wilton, appeals from an order of the Superior Court (Dalianis , J.) finding a bridge on land of the plaintiffs, Corinne Blagbrough and the Blagbrough Family Trust, to be public. The plaintiffs cross-appeal an earlier order granting the defendant partial summary judgment finding the same bridge and a driveway crossing the bridge to be private. We affirm the granting of summary judgment and reverse the finding that the bridge is public.
William and Corinne Blagbrough purchased a residence on Burton Highway in Wilton in 1963. The property is accessed by a driveway consisting of two paths which enter from Burton Highway, converge at the entrance to the bridge, and create a "Y" pattern. Bounded by Burton Highway, the bridge, and the two paths, is a triangular tract of land consisting of approximately 1300 square feet. After crossing the bridge, the driveway provides access solely to the plaintiffs' property.
Neither the Blagbroughs' deed nor a title search conducted when they purchased the property indicates that the driveway or bridge are public. In 1989, however, the town strengthened the bridge in accordance with State guidelines. The town also listed the driveway and bridge in 1990 with the New Hampshire Department of Transportation as a class V public highway. See RSA 229:5, VI (Supp.1999).
During the 1960s and 1970s, the town plowed and sanded the driveway and bridge. At some point in the 1970s, however, the town ceased plowing the driveway from the bridge to the residence, informing the Blagbroughs that it no longer maintained private driveways. The town, nevertheless, continued to sand the bridge and the driveway from Burton Highway to the bridge, and occasionally plowed those portions, frequently at the Blagbroughs' request.
Because the portion of the driveway approaching the bridge from Burton Highway was curved, and because the entrance to the bridge was narrow, the plowing blade on the front of the town's truck prevented the truck from entering the bridge. Thus, to sand and plow the bridge and driveway, the town was required to back into the driveway and bridge from Burton Highway, a maneuver that was both difficult and dangerous. In 1996, the town's road agent informed Corinne Blagbrough that he intended to straighten the approach to the bridge to make the approach safer, and in October 1996 the town removed maple saplings and brush from the triangle and spread asphalt in their place.
The Blagbroughs filed suit against the town. They alleged that the bridge was public, but that the driveway was private. They asserted that the town's action in removing the vegetation from the triangle constituted willful trespass (count I), and violated the timber trespass statute, RSA 227–J:8 (Supp.1999) (count II). They also asserted that the town intentionally listed their private driveway as a class V highway, received federal funding to maintain the driveway, and failed to expend the money on the driveway, thereby committing fraud and a temporary taking of their property (count III). Finally, they alleged that the town breached its duty to maintain the bridge (count IV), and sought injunctive relief requiring the town to maintain the bridge (count V).
Prior to trial, William Blagbrough died and the Blagbrough Family Trust was added as a plaintiff.
The town moved for summary judgment on counts III, IV, and V, submitting the deed to the property and the abstract of title created when the Blagbroughs purchased the property, which revealed no encumbrances for public use. The town also submitted the pleadings and deposition testimony of Corinne Blagbrough indicating the Blagbroughs' position that the driveway was private. The trial court granted the motion as to counts IV and V, finding under RSA 229:1 (1993) "no genuine issue of material fact indicating that plaintiffs' driveway and bridge were ever classified as a public highway." The court also granted the motion as to count III on grounds not challenged on appeal.
More than four months later, the plaintiffs moved to reconsider or alternatively for a new trial, arguing that newly discovered evidence indicated that the town's highway layout of 1765 included the bridge and the portion of the driveway from Burton Highway to the bridge. In support of the motion, the plaintiffs submitted a report drafted by a witness they retained as an expert land surveyor and forester. They also submitted what is purported to be part of a town meeting record from 1765 that the expert construed to support his conclusion. The trial court denied the motion without opinion.
After a bench trial on counts I and II, the trial court concluded that the town had committed a trespass by removing the vegetation from the triangle, but found that the damages were de minimis . Although the trial court recognized that "the history of this driveway and bridge is now irrelevant to the instant proceeding," the court also found that the bridge is a public bridge that the town has a duty to maintain. This appeal and cross-appeal followed.
The town argues that the trial court erred by finding, in its order on the merits of the trespass claims, that the bridge servicing the plaintiffs' private driveway was public. The plaintiffs cross-appeal the grant of partial summary judgment finding that the bridge and driveway were private.
We address first the plaintiffs' contention that the trial court erred by granting partial summary judgment.
In reviewing a grant of summary judgment, we look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party. If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. We consider a disputed fact "material" for purposes of summary judgment if it affects the outcome of the litigation under the applicable substantive law.
Sandford v. Town of Wolfeboro , 143 N.H. 481, 484, 740 A.2d 1019, 1021 (1999) (quotations, citations, and brackets omitted); see RSA 491:8–a (1997). Once the moving party has shown the absence of a genuine issue of material fact, the opposing party Omiya v. Castor , 130 N.H. 234, 237, 536 A.2d 194, 196 (1987) (quotation and citations omitted).
(Emphasis added.) The legislature has delegated to towns a duty to maintain and repair bridges located on class IV or V public highways. See RSA 231:90 –: 92 (1993); RSA 234:20 (1993).
When construed together, see Rye Beach Country Club v. Town of Rye , 143 N.H. 122, 126, 719 A.2d 623, 625 (1998), these statutes indicate that a bridge is public if the road it services is public. Cf. The Town of Troy v. Cheshire Railroad Company , 23 N.H. 83, 95 (1851) ().
Because the statutes do not on their face obligate towns to maintain bridges that are on private roads, and because such a construction would lead to the absurd result of obligating towns to maintain bridges to which the public has no right of access, see Atwood v. Owens , 142 N.H. 396, 398, 702 A.2d 333, 335 (1997) (), we conclude that a bridge is likewise private if the road it services is private.
In its motion for summary judgment, the town argued that because the plaintiffs could not prove the driveway had become public pursuant to RSA 229:1, the town had no duty to maintain either the driveway or the bridge. In their objection, the plaintiffs alleged they would "show that the portion of driveway crossing the bridge ... is public through dedication and use for public travel for twenty years prior to January 1, 1968 since around 1834 and thereafter." On appeal, the plaintiffs contend the evidence, viewed in their favor, supports a finding that the driveway had become public through twenty years of public use. We disagree.
We have construed the "public use" provision of RSA 229:1 as describing the establishment of a public highway through prescription. See Town of Warren v. Shortt , 139 N.H. 240, 243, 652 A.2d 140, 141 (1994). "[A] party claiming an easement by prescription must demonstrate more than a showing of public use for twenty years; the public use additionally must be shown to have been adverse." Id . In this case,...
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