Hartford v. Town of Gilmanton

CourtSupreme Court of New Hampshire
Writing for the CourtLAMPRON; LAMPRON
Citation146 A.2d 851,101 N.H. 424
PartiesArlington E. HARTFORD et al. v. TOWN OF GILMANTON.
Decision Date31 December 1958

Page 851

146 A.2d 851
101 N.H. 424
Arlington E. HARTFORD et al.
v.
TOWN OF GILMANTON.
Supreme Court of New Hampshire.
Argued Sept. 3, 1958.
Decided Nov. 5, 1958.
On Motion for Rehearing Dec. 31, 1958.

Harold E. Westcott, Laconia, for plaintiffs (against the motion).

Nighswander, Lord & Bownes and Conrad E. Snow, Laconia, for defendant (for the motion).

LAMPRON, Justice.

Loon Pond which is one of the public waters of the state (RSA 271:20) belongs to the public and is held in trust by the State for public use. State v. George C. Stafford & Sons, 99 N.H. 92, 96, 105 A.2d 569. The title of the State to its bed extends to the natural high water mark. Id., 99 N.H. 97, 105 A.2d 569. 'Any member of the public may exercise a [101 N.H. 426] common-law right to boat, bathe, fish, fowl, skate, and cut ice in and on its public waters.' Whitcher v. State, 87 N.H. 405, 409, 181 A. 549, 552.

By virtue of its layout in 1815, there was created in Loon Pond Road, so-called, a public easement or right to use as a way all the land within its confines. Varney v. Manchester, 58 N.H. 430, 432; Bigelow v. Whitcomb, 72 N.H. 473, 476, 57 A. 680, 65 L.R.A. 676; 39 C.J.S. Highways § 139, p. 1077. Part of this road was laid out for some distance along the edge of the waters of Loon Pond. The master found and the Trial Court ruled that 'said highway has since been continued in use by the public within the borders of the layout of 1815 * * * It has not been abandoned * * * Nor has said highway been discontinued.' Any member of the general public therefore has the right of reasonably using the land within the borders of Loon Pond Road, as laid out in 1815 to reach the public waters of Loon Pond to exercise the common-law right to boat, bathe, fish, fowl, skate and cut ice in and on its public waters. Whitcher v. State, supra; Flood v. Earle, 145 Me. 24, 71 A.2d 55.

The record shows that Loon Pond Road was laid out as a highway only. 'When land is taken for public use as a highway, the land-owner is entitled to receive a sum in damages, which, in theory of law, is an indemnity for the use for which his land is taken.' Winchester v. Capron, 63 N.H. 605, 606, 4 A. 795. The damages paid to plaintiffs' predecessor in title were therefore for an easement or right to use as a public way that part of his land contained in the layout. 'The soil and freehold belong to the land-owner, subject only to the public easement for travel, and he may use the land in any manner not inconsistent with the public convenience. * * * No new servitude, not in the nature of public travel, can be imposed upon the land, against the consent of the land-owner, without a further condemnation of his land under the right of eminent domain, and the award of adequate compensation therefor.' Id.,; Bigelow v. Whitcomb, 72 N.H. 473, 480, 57 A. 680, 65 L.R.A. 676; Lyford v. Laconia, 75 N.H. 220, 227, 72 A. 1085, 22 L.R.A.,N.S., 1062.

The public right acquired and paid for in damages when Loon Pond Road was laid out was the right of reasonably using as a way the land included within the limits of the layout. Varney v. Manchester, 58 N.H. 430, 432. Travelers thereon 'have the right to do all acts reasonably incident to 'a viatic use of the way''. Lydston v. Rockingham Co. Light & Power Company, 75 N.H. 23, 24, 70 A. 385, 386. It...

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12 practice notes
  • Piper v. Meredith, No. 6029
    • United States
    • Supreme Court of New Hampshire
    • 5 Junio 1970
    ...N.H. 302] however, is not a public institution of the town. The title lies in the State in trust for the public. Hartford v. Gilmanton, 101 N.H. 424, 146 A.2d 851; State v. George C. Stafford & Sons Company, 99 N.H. 92, 97, 105 A.2d The Court also relies on the phrase 'for making and orderi......
  • PROPERTY LAW'S SEARCH FOR A PUBLIC.
    • United States
    • Washington University Law Review Vol. 97 Nbr. 5, June 2020
    • 1 Junio 2020
    ...the owner of the street, not the public holding an easement over it, held the right to excavate below it). (77.) Hartford v. Gilmanton, 146 A.2d 851, 853 (N.H. (78.) S. H. Kress & Co. v. City of Miami, 82 So. 775, 775 (Fla. 1919) (quoting Lord Mansfield's statement that "the king has no......
  • Stott v. City of Manchester, No. 5690
    • United States
    • Supreme Court of New Hampshire
    • 29 Mayo 1968
    ...for which serves a public purpose. Papademas v. State, 108 N.H. --, 237 A.2d 665 (decided Jan. 30, 1968). See also Hartford v. Gilmanton, 101 N.H. 424, 146 A.2d 851; State v. Rosier, 105 N.H. 6, 191 A.2d In consequence, parking has become so far an integral part of highway use and regulatio......
  • Opinion of the Justices, No. 94-322
    • United States
    • Supreme Court of New Hampshire
    • 27 Octubre 1994
    ...this state the law of public waters is what justice and reason require"). These uses include recreational uses. See Hartford v. Gilmanton, 101 N.H. 424, 425-26, 146 A.2d 851, 853 (1958) (public waters may be used to boat, bathe, fish, fowl, skate, and cut In addition, we have uniformly held......
  • Request a trial to view additional results
11 cases
  • Piper v. Meredith, No. 6029
    • United States
    • Supreme Court of New Hampshire
    • 5 Junio 1970
    ...N.H. 302] however, is not a public institution of the town. The title lies in the State in trust for the public. Hartford v. Gilmanton, 101 N.H. 424, 146 A.2d 851; State v. George C. Stafford & Sons Company, 99 N.H. 92, 97, 105 A.2d The Court also relies on the phrase 'for making and orderi......
  • Stott v. City of Manchester, No. 5690
    • United States
    • Supreme Court of New Hampshire
    • 29 Mayo 1968
    ...for which serves a public purpose. Papademas v. State, 108 N.H. --, 237 A.2d 665 (decided Jan. 30, 1968). See also Hartford v. Gilmanton, 101 N.H. 424, 146 A.2d 851; State v. Rosier, 105 N.H. 6, 191 A.2d In consequence, parking has become so far an integral part of highway use and regulatio......
  • Opinion of the Justices, No. 94-322
    • United States
    • Supreme Court of New Hampshire
    • 27 Octubre 1994
    ...this state the law of public waters is what justice and reason require"). These uses include recreational uses. See Hartford v. Gilmanton, 101 N.H. 424, 425-26, 146 A.2d 851, 853 (1958) (public waters may be used to boat, bathe, fish, fowl, skate, and cut In addition, we have uniformly held......
  • Lakeside Lodge, Inc. v. Town of New London, 2008–247.
    • United States
    • Supreme Court of New Hampshire
    • 5 Diciembre 2008
    ...Dam Co., 70 N.H. 458, 460, 50 A. 108 (1900), 158 N.H. 169 such as the common law right to boat recreationally, see Hartford v. Gilmanton, 101 N.H. 424, 425–26, 146 A.2d 851 (1958). See generally 6 Waters and Water Rights 801–12 (Robert E. Beck ed., 1991, 2005 repl. vol.); Annotation, Rights......
  • Request a trial to view additional results
1 books & journal articles
  • PROPERTY LAW'S SEARCH FOR A PUBLIC.
    • United States
    • Washington University Law Review Vol. 97 Nbr. 5, June 2020
    • 1 Junio 2020
    ...the owner of the street, not the public holding an easement over it, held the right to excavate below it). (77.) Hartford v. Gilmanton, 146 A.2d 851, 853 (N.H. (78.) S. H. Kress & Co. v. City of Miami, 82 So. 775, 775 (Fla. 1919) (quoting Lord Mansfield's statement that "the king has no......

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