Hersh v. Plonski
| Decision Date | 07 December 2007 |
| Docket Number | No. 2006–782.,2006–782. |
| Citation | 156 N.H. 511,938 A.2d 98 |
| Court | New Hampshire Supreme Court |
| Parties | Terry L. HERSH and another v. Joseph W. PLONSKI and another. |
Rath, Young and Pignatelli, P.C., of Concord (Andrew W. Serell, on the brief and orally), and Conklin & Reynolds, P.A., of Plymouth (Deborah R. Reynolds, on the brief), for the petitioners.
Sheehan Phinney Bass + Green, P.A., of Manchester (Robert H. Miller, on the brief and orally), for the respondents.
The respondents, Joseph W. Plonski and Lori Ann Rolan–Plonski, appeal the order of the Superior Court (Smukler, J.) denying their cross-petition to quiet title and granting the petition to quiet title filed by the petitioners, Terry L. Hersh, Barry R. Hersh, Gerard Gagne and Susan Gagne. We affirm.
The record supports the following: The parties own abutting properties in Sanbornton. The Hersh and Gagne properties are next to one another on Broadview Drive; the Plonski property is behind them. The Plonski property borders Chapman Brook on one side and Lake Winnisquam on the other. See infra App. A (map of Plonski property). The Plonskis access their property by way of a right of way, which is one rod (sixteen and one-half feet) wide, that begins on Broadview Drive and crosses the Gagne property.
All three properties were originally part of one tract. In 1898, the Plonski property was carved out of the tract and the right of way was created. See id. The Plonskis purchased the property in 2003.
In 1928, the Hersh and Gagne properties were separated pursuant to a subdivision plan. This subdivision plan showed a proposed thirty-foot-wide road between the Hersh and Gagne properties, which began at what is now Broadview Drive and ended at what is now the Plonski property. See infra App. B (1928 subdivision plan). This so-called "paper street" has never been constructed. The first half of its length is currently overgrown with trees and vegetation. The Plonskis' one-rod right of way and the thirty-foot-wide paper street overlap, however, for part of their lengths. See infra App. C (Goodwin subdivision plan), App. D (Hersh subdivision plan).
The Hersh property was part of Lot 11 of the 1928 subdivision plan and was conveyed by the original fee holder to William E. and Almenia D. Harper in 1940. See infra App. B. The Hershes bought the property from Almenia Harper in 1986. In 1996, the Hershes filed a plan to subdivide their lot. See infra App. D. In 1998, they filed a boundary line adjustment plan and then sold one of their subdivided lots pursuant to that plan. See infra App. E (Hersh boundary line adjustment plan).
The Gagne property was part of Lot 12 and was conveyed by the original fee holder to Georgia E. Amidon in 1942. See infra App. B. In 1946, Amidon conveyed it to Maurice and Jeanne Hueber, who, in 1951, conveyed it to Ernest and Doris Lavallee. In 1952, the Lavallees conveyed the property to Wendell C. and Priscilla L. Williams, who, in 1970, conveyed it to Stephen L. and Roberta A. Goodwin. In 1987, the Goodwins submitted a plan to subdivide their property into two lots. See infra App. C. In 1997, they conveyed Lot 1 of their subdivided property to Laurence S. and Diane P. Dibiaso. In 2005, the Goodwins conveyed Lot 2 of their subdivided property to the Gagnes.
In this case, the parties sought to quiet title to the paper street depicted in the 1928 subdivision plan. The Hershes and Gagnes asserted that because the Town never accepted the paper street, it never attained the status of a public highway and, therefore, belonged to the Hershes. In their cross-petition, the Plonskis contended that the paper street became a public highway either because the Town impliedly accepted it through public use or because the predecessors-in-title to the Gagne and Hersh properties rededicated it. Following a two-day bench trial, supplemented by a view, the trial court ruled in favor of the Hershes and Gagnes. This appeal followed.
In an action to quiet title, the burden "is on each party to prove good title as against all other parties whose rights may be affected by the court's decree." Sorenson v. Wilson, 124 N.H. 751, 758, 476 A.2d 244 (1984). A trial court may not render judgment quieting title to disputed property "in the absence of parties with a duly recorded interest in the property, unless those parties claimed no interest and the petition so alleged." Id. We will uphold the trial court's determination unless it is erroneous as a matter of law or unsupported by the evidence. Riverwood Commercial Prop's v. Cole, 134 N.H. 487, 490, 593 A.2d 1153 (1991).
In their cross-petition to quiet title, the Plonskis claimed no private rights to the paper street, but rather contended that they, as members of the public, had rights to it as a public highway. The party asserting that a public road was established has the burden of demonstrating this by a balance of the probabilities. See Gill v. Gerrato, 154 N.H. 36, 43, 904 A.2d 576 (2006). We are bound by the trial court's findings with respect to the public status of the road unless they are not supported by the evidence or are erroneous as a matter of law. Id. ; see Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 36, 917 A.2d 1221 (2007) ().
A public highway may be created: (1) through the taking of land by eminent domain and the laying out of a highway by some governmental authority; (2) through the construction of a road on public land; (3) through twenty years of use by the public before 1968; or (4) by dedication and acceptance. Polizzo v. Town of Hampton, 126 N.H. 398, 401, 494 A.2d 254 (1985) ; see RSA 229:1 (1993). At issue in this appeal is whether the paper street became a public highway by dedication and acceptance.
Dedication is "the devotion of land to a public use by an unequivocal act of the owner of the fee manifesting an intention that it shall be accepted and used presently or in the future for such public use." Siegel, The Public Role in Establishing Private Residential Communities: Towards a New Formulation of Local Government Land Use Policies That Eliminates The Legal Requirements to Privatize New Communities in the United States, 38 Urb. Law. 859, 916 (Fall 2006) (quotation omitted); 11A E. McQuillin, The Law of Municipal Corporations § 33.02, at 308 (3d ed. 2000). Once a dedication is effective, "the public (represented by the municipality) gains land for a public purpose without cost." K. Young, Anderson's American Law of Zoning 4th ed. § 25.25, at 378 (1997).
To be effective, there must be both an offer of dedication and acceptance: "that is, the landowner ‘offers' up its property to the municipality and the municipality ‘accepts' [it]." Siegel, supra at 919; see Morin v. City of Somersworth, 131 N.H. 253, 255, 551 A.2d 527 (1988). "The acceptance requirement generally protects the public from having an undesirable dedication thrust upon it, as where the concomitant burdens of maintaining a street, park, or other public service outweigh the public benefits." 77 Am.Jur. Proof of Facts 3d § 13, at 37 (2004). Acceptance of a street, thus, has Polizzo, 126 N.H. at 401–02, 494 A.2d 254 (). As we explained in State v. Atherton, 16 N.H. 203, 210–11 (1844), if acceptance were not required, "it would be a great hardship upon towns if an individual could lay out a way upon his own land, throw it open to the public, and then oblige the town to charge themselves with the maintenance and repairs of it."
Both an offer to dedicate and an acceptance may be express or implied. Siegel, supra at 919–20. Express acts that may constitute offers to dedicate include dedicating by deed, recording a plat and selling lots with reference to a plat. Id. at 919. Under New Hampshire law, conveying lots by reference to a recorded plan that shows the subdivision of a tract with proposed streets is one way to offer to dedicate a street to public use. 16 P. Loughlin, Municipal Law and Taxation § 45.01, at 422–23 (1993); see Polizzo, 126 N.H. at 401, 494 A.2d 254. "Dedications also can be implied from circumstances or by acts or conduct of the owner that clearly indicate an intention to devote land to public use or from which a reasonable inference can be drawn." Siegel, supra at 919 (quotation omitted). Because "[t]he intent of the dedicator is the foundation and life of all dedications, ... [it] must be clearly and unequivocally manifested." 11A McQuillin, supra § 33.36, at 413.
Similarly, acceptance may be by express acts that include adopting an offer of dedication by ordinance or formal resolution, or implied by acts such as opening up or improving a street, repairing it, removing snow from it, or assigning police patrols to it. Siegel, supra at 919–20. "[P]roof of acceptance by the public must be unequivocal, clear and satisfactory, and inconsistent with any other construction." 11A McQuillin, supra § 33.54, at 472–73.
In this case, the parties did not dispute that the 1928 subdivision plan constituted an offer to dedicate the paper street for public use. They disputed whether: (1) the 1928 offer had ever been accepted; (2) there were subsequent "rededications" of the street for public use; and (3) any of these subsequent rededications were accepted. The trial court found that the 1928 offer had not been accepted and that there had not been any subsequent rededications of the street for public use. The Plonskis challenge these findings on appeal.
When the 1928 offer to dedicate the paper street for public use was made, New Hampshire law required...
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