Shearer v. Raymond, 011321 NHSC, 2019-0688

Docket Nº:2019-0688
Opinion Judge:BASSETT, J.
Attorney:Lauren Shearer, self-represented party, by brief. Getman, Schulthess, Steere & Poulin, P.A., of Manchester (Clara E. Lyons on the brief), for the defendants.
Judge Panel:HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
Case Date:January 13, 2021
Court:Supreme Court of New Hampshire




No. 2019-0688

Supreme Court of New Hampshire, Cheshire

January 13, 2021

Submitted: November 10, 2020

Lauren Shearer, self-represented party, by brief.

Getman, Schulthess, Steere & Poulin, P.A., of Manchester (Clara E. Lyons on the brief), for the defendants.


The plaintiff, Lauren Shearer, appeals, and the defendants, Ronald Raymond and Sandra Auvil, cross-appeal, an order in which the Superior Court (Ruoff, J.) found that the plaintiff has an easement across the defendants' property to access his landlocked property. The court ruled that "by operation of common law" the plaintiff has an easement to access his parcel over a public highway that was discontinued by town vote in 1898. The defendants' cross-appeal presents a question of first impression for this court: whether the owner of landlocked property has an easement for ingress and egress over a public highway that was discontinued by town vote prior to the enactment of the statutory right of access. See RSA 231:43, III (2009). The plaintiff, in turn, appeals certain aspects of the trial court's order relating to the width and permitted uses of the easement. We hold that, under New Hampshire common law, an easement exists over a discontinued highway if the landowner demonstrates that the easement is reasonably necessary for ingress and egress to the property. Accordingly, we vacate the trial court's decision and remand for the trial court to make that determination in the first instance. In the interests of judicial economy and because the issues may arise on remand, we also address the issues raised by the plaintiff in his appeal.

The trial court found, or the record supports, the following facts. The plaintiff purchased the subject parcel in 2004. The parcel lacks frontage on a public highway; rather, it abuts a discontinued public highway, known as Bowker Road, which was laid out by the Town of Richmond in 1766 and was discontinued by town vote in 1898. According to handwritten records of the 1766 vote to lay out the road, the selectboard called for the highway to be "three rods wide." The record suggests that the sole resident on Bowker Road was a farmer who lived in a house on the parcel now owned by the plaintiff. Eventually, the home fell into disrepair. Historically, Bowker Road was used to access only residential dwellings and farmland. At a town meeting in 1972, the Town voted to make a number of highways, including Bowker Road, subject to gates and bars, "if they have not already been discontinued."

Bowker Road begins at Whipple Hill Road, a public highway, where the defendants own property. A locked gate, located at the intersection of Bowker Road and Whipple Hill Road, has barred entrance to Bowker Road for at least 50 years. Bowker Road crosses over the defendants' property before reaching the plaintiff's property. The record shows that other lots also abut Bowker Road as it continues beyond the defendants' property. Currently, Bowker Road is unpaved and unimproved, with stone walls along portions of it, and it "is easily navigable by car" from Whipple Hill Road to the plaintiff's parcel. It continues beyond the plaintiff's parcel but cannot be navigated by car or truck due to grade and erosion. Presently, Bowker Road is used to "access other small structures - like hunting cabins" along the road. There is no evidence that it has been used for commercial purposes other than sporadic logging. Nor is there evidence that it has been used as a means for utility access.

When the plaintiff purchased the property, he was aware of an action brought by his predecessor-in-title in which the trial court ruled that, pursuant to the 1898 town vote, Bowker Road was discontinued. He was also aware that there was no express easement granting him the right to travel over the portion of Bowker Road that crossed the defendants' property. When the plaintiff purchased the property, the defendants granted him permission to use Bowker Road to access his property, and they gave him a key to the gate.

In 2008, the plaintiff submitted a petition to the Town to have Bowker Road reinstated as a public highway. The selectboard denied the petition, citing: (1) a lack of public necessity for a public highway; (2) the infringement on the defendants' property rights that would result from the reinstatement of Bowker Road; and (3) the additional financial burden that it would impose on the Town.

In 2018, a dispute arose between the parties when the plaintiff threatened to remove the gate from the entrance of Bowker Road. Shortly thereafter, the plaintiff filed this action in the trial court against the defendants, seeking, in part, the right to use Bowker Road to access his property. He claimed that, as a result of the 1766 layout, he had an easement over Bowker Road that was at least three rods wide, and requested that the court enjoin the defendants from interfering with his access to the easement. The Town was dismissed from the lawsuit and is not a party to this appeal.

The trial court held a bench trial and conducted an extensive view, which included a two-to-three-mile hike along Bowker Road. In its order on the merits, the trial court, after observing that the plaintiff was not entitled to a statutory right of access over Bowker Road, see RSA 231:43, III, ruled that, because Bowker Road was a discontinued public highway, he had an easement "at common law." The court observed that "[t]here is no controlling law" in New Hampshire as to whether a landowner whose land abuts a public highway retains a private easement to access that highway after it is discontinued. Relying upon case law from other jurisdictions, the trial court ruled that, "when a public [highway] is discontinued or abandoned, the abutting landowner retains the private right of access." See Gillmor v. Wright, 850 P.2d 431, 437-38 (Utah 1993). The trial court also stated that the Town, by its 1972 vote, had made Bowker Road subject to gates and bars. The trial court did not address the plaintiff's claim that he had a prescriptive easement over Bowker Road.

The trial court then ruled as to the nature and scope of the easement. Based upon the evidence at trial and the court's observations at the view, it found that the easement is 16 feet in width, relying largely upon the location of the stone walls and evidence of frequent travel. The trial court also concluded that, "[s]ince the lands off of Bowker Road have only ever been used for residential or agricultural purposes, the easement is limited in scope to those uses (assuming local land use regulations allow for such use)."

The trial court further ruled that, "because the erection of the gate is inconsistent with the plaintiff's right of way, the plaintiff may have it removed." Noting that the defendants have observed "unsafe OHRV traffic" on Bowker Road, the trial court warned the plaintiff that, should he remove the gate, he "may be held liable for anyone injured along the right of way because the defendant[s] erected the gate to safeguard their property and the plaintiff is now requiring its improvident and unwise removal." The plaintiff moved for reconsideration, challenging, in part, the trial court's determination as to the width and reasonable use of the easement. The trial court denied the motion. This appeal and cross-appeal followed.

In reviewing a trial court's decision rendered following a trial on the merits, we uphold the trial court's factual findings and rulings unless they lack evidentiary support or are legally erroneous. Jesurum v. WBTSCC Ltd. P'ship, 169 N.H. 469, 476 (2016). We do not decide whether we would have ruled differently than the trial court, but rather, whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Id. Thus, we defer to the trial court's judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence. Id. However, we review questions of law de novo. See id.

We turn first to the defendants' challenge to the trial court's ruling that, because Bowker Road was discontinued in 1898, by operation of common law the plaintiff has an easement across their property over Bowker Road to access his parcel. They argue that, in the absence of a right of access provided by a statute in effect at the time of the discontinuance, an easement does not exist solely because the public highway was discontinued. They contend that the trial court's ruling is "inconsistent with established New Hampshire common law."

We begin by reviewing the relevant statutes and case law. We have recognized that "[h]ighways are established, altered, and discontinued for the public good." Cram v. Laconia, 71 N.H. 41, 42 (1901). The legislature has long authorized municipalities to take land from a private landowner for the purpose of laying out a public highway, see Underwood v. Bailey, 56 N.H. 187, 189 (1855), provided that compensation is given to the landowner for the taking, see Hampton v. Coffin, 4 N.H. 517, 518 (1829); State v. Reed, 38 N.H. 59, 60 (1859). We have observed that, upon the laying out of a public highway through an individual's land, "the public acquires a right of passage" over the highway, which continues until the town, pursuant to its statutory authority, discontinues it. Coffin, 4 N.H. at 518. However, in general, title to the strip of land underlying the highway remains in the possession of the fee owner, subject to the public easement. Baldwin v. Wallace, 84 N.H. 71, 72 (1929); see also Duchesnaye v. Silva, 118 N.H. 728, 732 (1978) ("[A] conveyance of property bounded by a street or highway normally...

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