Hartford v. Town of Gilmanton

• Court: Supreme Court of New Hampshire
• Writing for the Court: LAMPRON; LAMPRON
• Citation: 146 A.2d 851,101 N.H. 424
• Parties: Arlington E. HARTFORD et al. v. TOWN OF GILMANTON.
• Decision Date: 31 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...