Malnati v. State
| Decision Date | 23 July 2002 |
| Docket Number | No. 2001–082.,2001–082. |
| Court | New Hampshire Supreme Court |
| Parties | Vincent and Carol MALNATI v. The STATE of New Hampshire and another. |
Faulkner, Plaut, Hanna, Freund & Worthen, P.C., of Keene (George R. Hanna and Mary Louise Caffrey on the brief, and Ms. Caffrey orally), for the plaintiffs.
Philip T. McLaughlin, attorney general (Craig S. Donais, assistant attorney general, on the brief and orally), for the defendants.
Baldwin, Callen, Hogan & Kidd, P.L.L.C., of Concord (Jed Callen on the brief) for Rails–to–Trails Conservancy, as amicus curiae.
The State appeals decisions of the Superior Court (Brennan , J.) holding that RSA 228:60–a, V (1993) violates the rights of the plaintiffs, Vincent and Carol Malnati, to due process and equal protection under the New Hampshire Constitution. See N.H. CONST. pt. I, arts. 12, 15. The State also challenges both the trial court's failure to clarify its ruling that the easement acquired by the State over the plaintiffs' property was for railroad purposes only, and the court's ruling that use of the rail corridor as a recreational trail materially increased the burden on the servient estate. Finally, the State appeals the trial court's order granting attorney's fees to the plaintiffs. The plaintiffs cross-appeal, challenging rulings that the State could not abandon the easement as a matter of law and had not abandoned the easement as a matter of fact. We reverse.
The following facts were found by the trial court or agreed upon by the parties. The plaintiffs own property on which they operate a dairy farm in Walpole. In 1846, the State acquired through eminent domain a railroad easement through the property now owned by the plaintiffs. There has been no rail activity on the easement for more than twenty-five years, and the railroad bed is now overgrown.
In 1981, the legislature enacted RSA 228:60–a. See RSA 228:60–a (1993). Section V of that statute, as amended, provides:
All railroad rights of way and rail properties acquired by the commissioner or by the state are hereby declared to be owned in fee simple absolute. Any and all reversionary rights in railroad rights-of-way and rail properties which have been acquired by the state or are acquired by the commissioner by purchase, condemnation or otherwise are hereby declared extinguished as of June 18, 1991, or the date of acquisition, whichever occurs later. The commissioner shall give notice to the public of all such properties declared under this paragraph to be owned in fee simple absolute by the state by publishing a description of the properties sufficient for the identification thereof, specifying the county where the properties are located. Any such notice shall be published at least once each year for 2 years in a newspaper of general circulation in the county where the property is located. Any person damaged thereby may make claim by petition against the commissioner to the appropriate superior court within 5 years of the date of acquisition or declaration of fee simple absolute ownership. The petition shall then be referred to the board of tax and land appeals, which shall proceed as with a condemnation under RSA 498–A. The right to appeal contained in RSA 498–A:27 shall be available to the claimant or the commissioner.
Pursuant to the statute, the department of transportation published notice in a newspaper of general circulation in Cheshire County, the county in which the plaintiffs' land is located, on December 5, 1997, and on January 10, 1998, declaring ownership in fee simple absolute of "[a]pproximately 42 miles of so-called ‘Cheshire Branch.’ " The published notice reached the plaintiffs, who, on January 22, 1998, filed a petition in superior court for damages pursuant to RSA 228:60–a, V. In July 1998, the plaintiffs commenced this action by filing a separate petition to quiet title in superior court. The petition for damages was held in abeyance pending the superior court's decision in the action to quiet title.
The trial court ruled that the purported taking of the plaintiffs' property violated their due process and equal protection rights under the State Constitution, and concluded that "the State of New Hampshire has no rights in the Malnati farmland underlying the railroad easement." This appeal and cross-appeal followed.
We first address the plaintiffs' contention, on cross-appeal, that the trial court erred in holding that the easement over their property had not been abandoned. The plaintiffs' position is that prior to the enactment of RSA 228:60–a, V, the State's easement had terminated by abandonment, leaving their property no longer encumbered. Thus, by the time RSA 228:60–a, V was enacted, there was no right-of-way on their property to be subject to declaration of fee simple ownership under the statute, and, therefore, RSA 228:60–a, V created no State interest in their property.
The trial court ruled that the State could not, as a matter of law, lose an easement by abandonment. We agree. "Because the State's rights in land are not always enforced and protected with the same vigilance as private rights, the legislature has determined that no person can acquire title to State lands by adverse possession." State v. Tallman, 139 N.H. 223, 225–26, 652 A.2d 134 (1994) ; see RSA 539:6 (1997). "For the same reason it has been decided that the State does not forfeit or lose its rights to public lands and waters by laches, estoppel or waiver." Moultonboro v. Crumb, 114 N.H. 26, 28, 314 A.2d 652 (1974). We see no reason why the same rule should not apply to abandonment.
The plaintiffs attempt to distinguish the foregoing cases by confining them to "public lands," which, the plaintiffs argue, "include only such lands as are owned by the State and held and maintained for public use, open to such use by any and every member of the public." The plaintiffs assert that railroad easements, on the other hand, vest exclusive rights of use and occupation in the railroad, not the public. "That rail service is a ‘public purpose,’ " the plaintiffs argue, "does not transform a railroad easement into public lands" subject to the rule of Tallman and Crumb .
We reject the plaintiffs' initial premise that the rule of Tallman and Crumb applies only to public property such as parks, see Crumb, 114 N.H. at 27–28, 314 A.2d 652, and public waters, see State v. Stafford Company, 99 N.H. 92, 97, 105 A.2d 569 (1954). The State's interest in Tallman was an easement that allowed the State to flood the private landowner's property during times of high water. See Tallman, 139 N.H. at 224, 652 A.2d 134. The rule that the State cannot lose its interests in property by abandonment applies with equal force to the easement at issue here. Accordingly, we agree with the trial court's decision on this issue.
The plaintiffs further argue that the State's easement was extinguished when the railroad ceased using the right-of-way and the State failed to resume its rights to the corridor under Laws 1844, 128:10 (the 1844 statute). The 1844 statute provided, among other things, for the laying out of railroad routes by the State railroad commissioners, the assessment of damages sustained by the owners of land over which the routes passed, and the leasing by the State to railroad corporations for a lease term of "not less than one hundred years, nor more than two hundred years, the right to construct a railroad over said route, for the public use and benefit, with the right of user in the same to pass and repass with their locomotives, cars and vehicles of transportation thereon." Laws 1844, 128:8; see Laws 1844, 128:5. The statute further provided that at the expiration of the lease term, "the right so leased shall revert to the State." Laws 1844, 128:8. It also provided that the lease may be renewed. Id . The railroad corporation was required, upon execution of the lease, to deposit with the State treasurer the amount assessed as damages for the laying out of the route. Laws 1844, 128:9. Finally, section 10 of the 1844 statute provided:
Because the State failed to take affirmative action to "resume its contingent rights," the plaintiffs contend, its easement over their land was extinguished. We disagree. The 1844 statute, by its terms, provides for a lease, not a wholesale conveyance, of the right to build and operate a railroad line over the routes laid out by the State. Section 10 of that statute merely gives the State an early termination option. It does not require any affirmative action by the State to maintain its interest in the routes or to exercise a right of reverter. The statute clearly provides that the leased right, if not earlier resumed by the State under its termination option, automatically reverts to the State upon expiration of the lease term. We conclude that the State's easement was not extinguished through failure to "repossess" it from the railroad.
In ruling on the plaintiffs' due process claim, the trial court held that "notice by publication is insufficient to satisfy the standards for due process under the New Hampshire Constitution when applied to a property owner who will be significantly affected by the State...
To continue reading
Request your trial