Leo Foundation v. State

• Decision Date: 31 March 1977
• Docket Number: No. 7452,7452
• Citation: 372 A.2d 1311,117 N.H. 209
• Parties: The LEO FOUNDATION v. STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 1311

372 A.2d 1311

117 N.H. 209

The LEO FOUNDATION v. STATE of New Hampshire.

No. 7452.

Supreme Court of New Hampshire.

March 31, 1977.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for plaintiff.

David H. Souter, Atty. Gen., and Roger G. Burlingame, Asst. Atty. Gen., for the State.

LAMPRON, Justice.

Plaintiff appealed to the superior court from the lay out of a highway to the public waters of Manning Lake in Gilmanton under RSA 235:1. Trial by the Court (Batchelder, J.), with a view, resulted in a decree dismissing the appeal. During the course of trial, plaintiff seasonably excepted to the court's rulings, to the dismissal of its appeal, and to the court's denial of its eight requests for findings of fact and rulings of law. All questions of law raised by plaintiff's exceptions were reserved and transferred.

On appeal to this court plaintiff argues only two of the issues raised by its exceptions below. First that the commission failed to lay out a highway from an existing public highway. Second that the decision of the commission should be void because one of the commissioners was an employee of the highway department. We affirm the trial court's rulings on both these issues.

On March 1, 1967, ten residents of the State of New Hampshire petitioned the Governor and Council to lay out a highway from an existing public highway in Gilmanton to Manning Lake in accordance with RSA ch. 235. The Governor and Council appointed a commission to conduct a hearing to determine whether there was occasion for the laying out of such a highway, and if so, to determine its location. A hearing was held on November 18, 1967, at which representatives of plaintiff were present and argued against the lay out. By return of layout dated August 28, 1968, the commission determined that there was occasion for the laying out of such highway, and that the location of said highway should be over land owned by plaintiff. This determination was accepted by the Governor and Council on September 30, 1968. Plaintiff appealed the determination of the commission to the superior court. RSA 235:5. Trial of the case was held commencing February 5, 1975. It is the appeal therefrom which is now before us.

In order to lay out a highway to public water the commission must determine that there is occasion to lay out such a highway 'from any existing highway to any public water in this state . . ..' RSA 235:1. There is no dispute that Manning Lake, a natural body of water in excess of twenty acres, is 'public water' within the meaning of this section. RSA 271:20. However, plaintiff argues that Pond Road, from which the proposed highway was laid out, was not shown to be an existing 'highway' as defined by RSA 230:1 (Supp.1975). This section defines 'highways' as follows: '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 such roads are located, or roads which have been used for public travel . . . for twenty years prior to January 1, 1968 . . ..'

At trial there was no evidence produced that Pond Road had been laid out in the mode prescribed by statute, that it had been constructed for public travel over land conveyed to the town of Gilmanton, or that it had been dedicated to public use and accepted by the town. David M. Bickford, a selectman for the town of Gilmanton, and a resident for over sixty years, testified that it would be 'virtually impossible' to find any records showing that Pond Road had been formally laid out as a town road. However, he did not testify that Pond Road had not been so laid out; nor did he testify that Pond Road had not been established in any other manner described by RSA 230:1 (Supp.1975).

Mr. Bickford testified that Pond Road had been used by the public as a public highway 'for at least the last thirty or forty years.' Mr. Paul R. Morse, who owned property abutting on Pond Road from the mid 1940's through the late 1960's, testified that the road was used generally by the public during that period of time. Mr. Morse testified that members of the public often traveled up Pond Road looking for a place to swim. There was also testimony that Pond Road was used by the public during that period of time to gain access to a beach area on Lake Manning, located near the beginning of the road. Such use, while it may have been 'intermittent and of slight volume,' is nevertheless sufficient to sustain a finding that Pond Road was established by prescription, the use being 'characteristic of the kind of road claimed.' Blake v. Hickey, 93 N.H. 318, 321-22, 41 A.2d 707, 709 (1945). Such use is also continuous when not interrupted by assertion of any paramount right. Williams v. Babcock, 116 N.H. --, 368 A.2d 1166 (1976); Jean v. Arsenault, 85 N.H. 72, 75, 153 A. 819, 820-21 (1931).

Plaintiff argues that Pond Road was used only for private travel by plaintiff and its guests, and by abutters. Although these people may use the road more frequently than other members of the general public, they too are members of the public, and such use of the road is consistent with the definition of public use. There was no evidence that plaintiff or any of the abutters had ever attempted to bar others from using Pond Road. There was evidence from which the trial court could properly find that the members of the public using Pond Road did so under a claim of right. White Mt. etc. Co. v. Levesque, 99 N.H. 15, 17, 104 A.2d 525, 526 (1954).

Other evidence at the trial also showed Pond Road to be...