State v. George C. Stafford & Sons, Inc.

• Decision Date: 27 May 1954
• Citation: 99 N.H. 92,105 A.2d 569
• Parties: STATE v. GEORGE C. STAFFORD & SONS, Inc.
• Court: New Hampshire Supreme Court

Page 569

105 A.2d 569

99 N.H. 92

STATE v. GEORGE C. STAFFORD & SONS, Inc.

Supreme Court of New Hampshire.

Argued March 3, 1954.

Decided May 27, 1954.

Louis C. Wyman, Atty. Gen., George F. Nelson, Asst. Atty. Gen., for the State.

Upton, Sanders & Upton, Concord, Richard F. Upton, Concord, orally, for Town of Meredith, as an intervening plaintiff.

Tilton & Tilton, Laconia, Robert P. Tilton, Laconia, orally, for defendant.

KENISON, Chief Justice.

It is a basic proposition which has become well settled by usage, statute and judicial decision that lakes and great ponds in New Hampshire belong to the public and are held in trust by the state for public use. R.L. c. 182, §§ 17, 18; Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 25 A. 718, 18 L.R.A. 679; Percy Summer Club v. Welch, 66 N.H. 180, 28 A. 22; State v. Sunapee Dam Co., 70 N.H. 458, 50 A. 108, 59 L.R.A. 55; Whitcher v. State, 87 N.H. 405. Meredith Bay in Lake Winnipesaukee, which is one of the boundaries of the lands owned by the parties to this dispute, is a part of one of the public waters of the state. Musgrove v. Cicco, 96 N.H. 141, 71 A.2d 495; Rothrock v Loon Island, 96 N.H. 421, 78 A.2d 512. While the title of the State to the bed of the lake extends to the natural high water mark (Taggart v. Town of Jaffrey, 75 N.H. 473, 76 A. 123, 28 L.R.A.,N.S., 1050), the defendant and other littoral owners have rights which are more extensive than those of the public generally. Willis v. Wilkins, 92 N.H. 400, 32 A.2d 321. Such littoral owners have the right to erect wharves and other structures into the lake which are superior to the rights of those who have only the rights of a member of the public. Dolbeer v. Suncook Water Works Co., 72 N.H. 562, 58 A. 504. Littoral owners may use the lakes and public waters in front of the property for recreational and other similar purposes in a more extensive manner than those who enjoy the rights to use the lake and public waters only as members of the public. Hoban v. Bucklin, 88 N.H. 73, 184 A. 362, 186 A. 8.

Although littoral owners have extensive rights in public waters, they are always subject to the paramount right of the State to control them reasonably in the interests of navigation, water storage and classification, health and other public purposes. Richardson v. Beattie, 98 N.H. 71, 95 A.2d 122; State v. Hutchins, 79 N.H. 132, 105 A. 519, 2 A.L.R. 1685. Revised Laws, chapters 181, 182, 266, 267, Laws 1947, chapter 183 as amended. Since the State's rights in land and waters are not always enforced and protected with the same alacrity as private rights (State v. Franklin Falls Co., 49 N.H. 240, 252), the Legislature has provided that no person can acquire title to state lands by adverse possession. R.L. c. 411, § 6. 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. State v. Hutchins, supra; Trustees of Phillips Exeter Academy v. Exeter, 90 N.H. 472, 495, 27 A.2d 569; St. Regis Paper Co. v. New Hampshire Water Resources Board, 92 N.H. 164, 169, 26 A.2d 832. Nor is the State estopped to assert public rights if its officers acted without authority. Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N.H. 268, 30 A.2d 1; State v. Cote, 95 N.H. 428, 65 A.2d 280. 'It has been expressly decided that a state is not estopped by the unauthorized acts of its officers.' Smith v. Epping, 69 N.H. 558, 560, 45 A. 415, 416.

There is authority that a littoral or riparian landowner may add 'made or filled land' (Watson v. Horne, 64 N.H. 416, 417, 13 A. 789) to his property assuming, of course, that it is a reasonable use of his property and not injurious to neighboring property or the public rights of the State. See Cheever v. Roberts, 82 N.H. 289, 133 A. 22. This right has sometimes been referred to as 'a reasonable private right of using this public property'. Dolbeer v. Suncook Water Works Co., 72 N.H. 562, 564, 58 A. 504, 506. Even where the littoral owner limits the made or filled land to the shoreline of his own abutting property, he assumes the risk that his construction of a 'wharf * * * or other thing, below the water's edge, being found to be unreasonable, and his structure being an abatable nuisance.' Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 20, 25 A. 718, 727, 18 L.R.A. 679. It follows that the littoral owner has no right to build land or structures out from the lake frontage of his property if the same will unreasonably interfere with the paramount rights of the public to use the lake. To build them along the frontage of adjoining land, whether title to such land is privately or publicly held, would not only be clearly unreasonable but beyond the rights of the littoral owner.

The defendant's title to the filled-in area stands or falls on the authority of the Highway Commissioner to grant it to him. The defendant received no conveyance to the filled-in area and, in any event, the conveyance to be binding required approval of the Governor and Council which was never obtained. Laws 1945, c. 188, Pt. 10, § 11. Although the Highway Commissioner had broad powers over highway matters which he exercised on behalf of the State, Laws 1945, c. 188, Pt. 10, § 7, the sale, conveyance and lease of property acquired for highway purposes required the approval of the Governor and Council. Section 11, supra. The same rule applies to surplus property which is not immediately needed for the right of way proper. Laws 1945, c. 188, Pt. 7, § 2. While this land transaction was entered into honestly, openly and in good faith, it could not be legally effective to transfer property from the plaintiff to the defendant. State v. Hutchins, 79 N.H. 132, 105 A. 519, 2 A.L.R. 1685. The answer to question one is 'no.'

Question three is whether on the evidence in this case a littoral owner on a great pond may acquire fee simple title to additional dry land by filling up the bed of the great pond below the natural high water mark. For reasons hereinafter indicated the answer must be 'no.' An affirmative answer would result in serious and extensive encroachments on the public rights in public waters of the state, would place a premium on trespasses against the public right and encourage one littoral owner to develop his shore frontage at the expense of others. The whole history of the development of lakes and great ponds in this state militates against the allowance of such commercial developments without legislative sanction. Dana v. Craddock, 66 N.H. 593, 32 A. 757; State v. Welch, 66 N.H. 178, 28 A. 21; State v. Sunapee Dam Co., 70 N.H. 458, 50 A. 108, 59 L.R.A. 55; R.L. c. 267, §§ 47-50; Laws 1949, c. 307. It is true that the filled-in area eliminated the building of rip-rap along a portion of the lake shore otherwise necessary to hold the bed of the highway in place. While the fill was thus connected...