Catalano v. Town of Windham, 89-480

• Decision Date: 03 August 1990
• Docket Number: No. 89-480,89-480
• Citation: 578 A.2d 858,133 N.H. 504
• Parties: David P. CATALANO, et al. v. TOWN OF WINDHAM.
• Court: New Hampshire Supreme Court

Page 858

578 A.2d 858

133 N.H. 504

David P. CATALANO, et al. v. TOWN OF WINDHAM.

No. 89-480.

Supreme Court of New Hampshire.

Aug. 3, 1990.

Carpenito & Rogers P.A., Salem (James W. Carpenito on the brief and orally), for plaintiffs.

Beaumont, Mason & Campbell P.A., Salem (Bernard H. Campbell on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant, the Town of Windham (Town), appeals the decision of the Superior Court (Gray, J.) requiring the Town to maintain two Windham roads, Doiron and Cole, as Class V public highways. For the reasons stated below, we affirm.

Doiron Road begins at Route 111 in Salem and extends northerly into Windham along the west shore of Shadow Pond. Approximately .22 miles from the Windham/Salem border, Doiron Road forks. The east branch, called Cole Road, briefly follows the pond's shoreline before looping back to Doiron. Doiron then continues for less than a mile alongside Shadow Pond and dead-ends. The portion of Doiron Road north of the fork, and all of Cole Road, are the subject of this lawsuit. Hereinafter, "Doiron Road" will refer only to that portion of the road in dispute.

The earliest references to these roads and the lots abutting them are found on two subdivision plans, one entitled "Lot Division of Land on [Shadow Pond], Windham, New Hampshire, Owned by W.W. Cole; Scale 40 ft. = 1 inch; June 1908," and the other entitled "Plan of Lakeview on West Shore Shadow Lake; Windham, N.H.; Marie E. McCarthy; Scale 1 inch = 40 feet; 1919." The lots abutting Cole and Doiron Roads were individually sold, and most of the deeds to these lots include rights-of-way over the roads. There is no evidence, however, that the land over which the roads themselves passed was ever sold by the original developers of the subdivision to the lot owners or others or dedicated to the town. Hence, this land does not appear to belong to the lot owners, the plaintiffs in this suit.

This litigation began in 1988, when the Town informed the plaintiffs that it would no longer plow snow from Doiron and Cole Roads or otherwise maintain them. The plaintiffs responded by filing a petition for declaratory judgment and a request for injunctive relief. The Superior Court (Gray, J.) ordered the Town to continue winter maintenance of the roads pending a hearing on the merits, and indicated that it would then take a view of Doiron and Cole Roads when a hearing was scheduled on the merits.

At trial, the Town admitted that it had plowed snow on Doiron and Cole Roads since the early 1940's. Witnesses for the plaintiffs testified that the Town had repaired the roads in the summer and plowed snow in the winter from the 1930's until 1988. Evidence in the form of minutes from town meetings was also presented, revealing that the Town had twice before considered cutting off maintenance to Doiron and Cole Roads. Each time, however, town selectmen decided to continue the maintenance, noting at one time that "the Town has maintained this road for so many years that we must continue to do so." The trial court specially found that the Town "maintained the roads as a full part of its general summer and winter maintenance program."

Out of the thirty residences abutting Doiron and Cole Roads, twenty-three are year-round residences. The record does not reveal the number of school-age children living in these homes. The last census figures indicate that sixty-seven residents of Windham live on these roads. Aside from the plaintiffs' regular use of the roads, the evidence shows that members of the general public have used the roads frequently in the winter and in the summer to reach Shadow Pond for recreational purposes and to patronize a grocery store once located on Doiron Road.

At the close of the hearing on the merits, the trial judge stated he would take a view of the roads if he thought it would aid him as the trier of fact. The Town urged him to do so, but the court eventually made its rulings without a view.

The trial court ruled in favor of the plaintiffs and found, "based on a strong preponderance of the evidence that the roads are highways as defined in RSA 229:1 by reason of their being used for public travel for more than 20 years prior to January 1, 1968." In addition, the court stated,

"Since the Court has found that the roads are public highways and further finds that they are not state highways but rather Town roads not subject to gates and bars; not discontinued and have been maintained ... by the Town, the Court finds the roads to be Class V highways which the Town has the duty to maintain regularly."

(Emphasis in the original.)

On appeal, the Town first argues that the trial court applied an incorrect legal standard in determining that Doiron and Cole Roads are public highways. The Town therefore urges us to reverse this ruling. Second, the Town asserts that there was insufficient evidence presented at trial to support the court's finding that the Town "maintained" Doiron and Cole Roads or to support its ruling that the roads qualify as Class V highways. Third, the Town argues that the trial court's failure to take a view was plainly wrong and constitutes reversible error.

The issue in this case is whether the roads, already constructed and in use for decades, will be maintained by the town as public highways or will be maintained as private roads by the lot owners. Regardless of the outcome in this case, the town or the lot owners will continue to have only an easement of passage over the land, the fee title remaining in the original owners of the land or their heirs or legatees. 39 Am.Jur.2d Highways Streets and Bridges, § 158 I. Public Highways by Prescription

We agree with the Town's assertion that the trial court used an incorrect legal standard in determining that Doiron and Cole Roads are public highways. However, because the trial court reached the correct result, we will not disturb its ruling. See LeMay v. Rouse, 122 N.H. 349, 352, 444 A.2d 553, 555 (1982). Generally, "[w]hen a trial court reaches the correct result, but on mistaken grounds, this court will sustain the decision if there are valid alternative grounds to support it." Id.

"Public highways" are defined in RSA 229:1. There are four ways in which a roadway may become a public highway:

"Highways are only such as are laid out in the mode prescribed therefor by statute or roads which have been constructed for public travel over land which has been conveyed to a city or town or to the state by deed of a fee or easement interest, or roads which have been dedicated to the public use and accepted by the city or town in which roads are located, or roads which have been used as such for public travel, other than travel to and from a toll bridge or ferry, for 20 years prior to January 1, 1968, and shall include the bridges thereon."

The trial court based its ruling on the fourth alternative definition of "highway," that is "roads which have been used as such for public travel ... for 20 years prior to January 1, 1968...." We note that this fourth alternative is only applicable to roadways in use, at this time, for over forty years.

In Wason v. Nashua, 85 N.H. 192, 155 A. 681 (1931), this last alternative definition of a public highway was interpreted as describing the establishment of a highway by prescription:

"To establish a highway by prescription it must appear that the way was used by the general public continuously without interruption for a period of twenty years (P.L., c. 74, s. 1), under a claim of right without the permission of the owner. These facts, when found, give rise to a conclusive presumption that the highway has at some previous time been established pursuant to law by the proper authority."

Id. at 198, 155 A. at 685 (citations omitted). This interpretation of RSA 229:1 has not substantially changed. See, e.g., Leo Foundation v. State, 117 N.H. 209, 211-13, 372 A.2d 1311, 1313, cert. denied, 434 U.S. 890, 98 S.Ct. 264, 54 L.Ed.2d 176 (1977); White Mt., etc., Co. v. Levesque, 99 N.H. 15, 17, 104 A.2d 525, 526 (1954); Blake v. Hickey, 93 N.H. 318, 319, 41 A.2d 707, 708 (1945); Windham v. Jubinville, 92 N.H. 102, 103, 25 A.2d 415, 416 (1942). This definition has therefore been interpreted to require more than a showing of public use for twenty years; the public use must additionally be shown to have been "adverse."

The Wason v. Nashua court took pains to explain its interpretation of the statute:

"Evidence of continuous and uninterrupted public use of the premises for the statutory period, though uncontradicted, is insufficient alone to establish prescriptive title as a matter of law. When no charter of right or other color of title in the public has been shown it must appear that the user was adverse, that is, under a claim of right. Where, as here, this essential element is left to be implied solely from the public use, it must appear that such use was of a character calculated to apprise the owner that it was had under a claim of right. The nature of the use must be such as to show that the owner knew, or ought to have known, that the right was being exercised, not in reliance upon his toleration or permission, but without regard to his consent."

Wason v. Nashua, 85 N.H. at 198, 155 A. at 685 (citations omitted).

The plaintiffs thus had the burden of proving by a "balance of the probabilities" that the public used Doiron and Cole Roads for twenty years under a claim of right without the owner's permission. Gowen v. Swain, 90 N.H. 383, 385-86, 10 A.2d 249, 251 (1939). It is important to emphasize that the plaintiffs who are lot owners, possessing an easement over the roads, were required to prove that the "public"--not just the lot owners and their guests--used the roads for twenty years prior to 1968 under a claim of right without the owner's permission. However, if plaintiffs were able to prove that the public used the roads openly and under...