Davenhall v. Cameron, 7398

• Decision Date: 30 November 1976
• Docket Number: No. 7398,7398
• Citation: 366 A.2d 499,116 N.H. 695
• Parties: Thomas K. DAVENHALL v. Albert J. CAMERON. Robert SCHULTE and Barbara Schulte v. Thomas DAVENHALL.
• Court: New Hampshire Supreme Court

Page 499

366 A.2d 499

116 N.H. 695

Thomas K. DAVENHALL v. Albert J. CAMERON.

Robert SCHULTE and Barbara Schulte v. Thomas DAVENHALL.

No. 7398.

Supreme Court of New Hampshire.

Nov. 30, 1976.

Calderwood, Ouellette & Hallisey, Prof. Assn., Dover (Raymond R. Ouellette, Dover, orally), for plaintiff.

Beamis, Davis, Murray & Grossman, Somersworth (Jerome H. Grossman, Somersworth, orally), for defendant.

KENISON, Chief Justice.

Robert and Barbara Schulte brought an action against Thomas Davenhall to quiet title and for an injunction. They derived their title from Albert J. Cameron, who is also the defendant in a quiet title action brought by Davenhall. The cases were consolidated for trial before Master Earl J. Dearborn, Esquire. The disputes involve the legal status of a road known as the 'Old Road to Trotting Park' in Farmington New Hampshire. Davenhall claims that the road, which is within the confines of his property, is a private way and that no one has prescriptive rights to use it. Cameron and the Schultes claim that the road is public. After a lengthy trial, the master concluded that the road is a public way and has been since 1831 when it was duly laid out, that the public has not lost its rights by nonuse or abandonment of the road and that none of the parties have any interest in the road other than as members of the public. Mullavey, J., approved the master's report. The issues on appeal have been narrowed considerably. The plaintiff Davenhall apparently concedes that the road was properly laid out in 1831, that nonuse or abandonment by the public for twenty years does not constitute discontinuance of a highway (Thompson v. Major, 58 N.H. 242 (1878)), and tht one cannot acquire a private interest in a highway by adverse possession. RSA 249:30; see Windham v. Jubinville, 92 N.H. 102, 25 A.2d 415 (1942).

The plaintiff argues that, because the master did not explicitly state that the case involved the question whether the road had been discontinued, his whole approach to the case was erroneous. At the betinning of his report the master framed the issue as whether the road was a public or private way. This formulation is correct and subsumes the issue of discontinuance. The transcript makes clear that the parties and the master regarded resolution of the discontinuance question necessary to the ultimate disposition of the case. Similarly, an examination of the master's report reveals that the question of discontinuance was at the forefront of the litigation. At several places in the report the master discusses the evidence with respect to discontinuance. After reviewing the descriptions in all the deeds in question, the oral testimony and the official reports, the master concluded that 'the preponderance of the evidence indicates that the road . . . was and is in existence as a public way . . ..' We find no error in the master's approach. Although he did not specifically deny the plaintiff's request for a finding that the road was discontinued as of 1867, it is clear that he concluded that the road had not been discontinued.

Davenhall contends that, regardless of the approach, the master placed an unreasonably high burden of proving discontinuance upon him in that the master refused to give proper weight to what Davenhall claims to be circumstantial evidence of discontinuance.

Once a highway is established, it is presumed to exist until discontinued (2 B. Elliott & W. Elliott, The Law of Roads and Streets § 1172 (4th ed. 1926); 3 P. Nichols, Eminent Domain § 9.33(2) (3d ed. 1976)), and discontimuance is not favored in the law. Annot., 175 A.L.R. 760 (1948). Discontinuance is a fact that must be proved and the burden is upon the party who asserts discontinuance to prove it by clear and satisfactory evidence. 2 B. Elliott & W. Elliott, supra § 1173; see Central Pac. Ry. v. Alameda County, 284 U.S. 463, 468, 52 S.Ct. 225, 76 L.Ed. 402 (1932). Because public roads are discontinued by town vote (Thompson v. Major, 58 N.H. 242 (1878); Hopkinton v. Smith, 15 N.H. 152 (1844); RSA 238:1; Laws 1829, 54:6), and such actions are recorded in the town report, e.g., Farmington Town Report 13 (1960), the best evidence of discontinuance is the official record. 2 B. Elliott & W. Elliott, supra § 1179, at 1678. However, as Davenhall correctly points out, because many Farmington town records were destroyed by fires in 1875, 1904, and 1928, it was impossible for him to introduce such direct evidence. He believes that under such circumstances the master should have, but did not, consider his circumstantial evidence which consisted of certain deed recitals, testimony regarding the use of the road and the 1917 Farmington Town Report that refers to a road, while ...