So, Who Owns the Rangeways, Anyway?

By David R. Connell, Esq.

An ancient controversy resurfaced during the 2008 session of the General Court in House Bill 1491, “Establishing a committee to study the ownership and disposition of rangeways.” “Rangeways” are the long, straight strips of land reserved for roads on the plans produced by the Colonial-era “proprietors” of the newly created townships to subdivide all the land in the townships. The lots were laid out in uniform rectangular rows, or “ranges,” between parallel rangeways. (Pembroke is often cited as a town whose map today shows the layout of many of its highways along rangeways.) Due to topography and settlement patterns, many miles of rangeways in most towns never became highways. As Attorney Peter Loughlin summarizes it in his treatise on municipal highways:

[t]heir chief significance today … is the ownership question which they present to developers of tracts of land bisected by them. There seems to be little consensus on the ownership of these strips of land which were once owned by the proprietors. It is not even clear that the incorporation of the proprietors into a town caused the common lands to change from the proprietary to the town unless the act of incorporation specifically provided for such a change.

Loughlin, 16 New Hampshire Practice: Municipal Law and Taxation sec. 44.14, p. 420-21.

Following a legislative hearing, the Municipal and County Government Committee reported to the House of Representatives that excellent sources on the subject of rangeways exist; no further studies are necessary; and current laws address the problem. (Two excellent law journal articles on the topic are: New Hampshire’s Rangeways, 42 New Hampshire Bar Journal #4, p. 44 (2001), by Attorney Stephan T. Nix, LLS; and Ancient New England Highways: The Hanover “Greenways” Controversy, 9 Vermont Law Review 373 (1984), by Edward D. Sutton.) The House voted HB 1491 “inexpedient to legislate,” but the debate will no doubt continue among interested surveyors, real estate lawyers and history buffs. This article will provide an overview of the rangeway ownership controversy as it evolved historically and point out how, under certain circumstances, the issue can become relevant to municipal officials today as they seek to establish municipal trail systems.

When the royal Province of New Hampshire was created by King James II in 1679, the provincial governors were delegated the power to grant ownership of land in the Province. Lands were typically disposed of by creation of a township and simultaneous grant of all the land in the township to a group of individuals, often relatives and associates of the governor in Portsmouth. In each township the group of owners, the “proprietors,” initially owned all the township land in common. The proprietors engaged surveyors to prepare a plan of the township, depicting numbered lots and rangeways (called “allotments” in more northerly and westerly townships). The proprietors then, by vote, not deed, granted specific lots to individual owners for settlement or speculation, reserving certain lots for the ministry and other common purposes, and reserving the rangeways as potential roads.

The townships were largely confined to the southeasterly parts of the Province until after the French and Indian War, when the newly safe and secure frontier regions were rapidly carved into townships and granted by Governor Wentworth. It should be noted that the four towns settled before creation of the Province—Portsmouth, Dover, Hampton and Exeter—did not have proprietary lands. Those towns, themselves, claimed original ownership of lands. Willey v. Portsmouth, 35 N.H. 303, 310 (1857); see Loughlin, 14 New Hampshire Practice: Local Government Law, sec. 864, pp. 110-12.

At first the proprietors governed the township, but, as settlement gradually increased, the inhabitants of the town assumed control over the town government through town meeting and the selectmen, while the proprietors maintained ownership and control of the residual land in the township. In 1766 the Provincial Assembly passed a statute authorizing selectmen “to exchange any lands left for highways, or any highways or any Part of them where a way is not necessary to be Continued, for other lands more suitable therefor …” 3 Laws of New Hampshire, Province Period 1745-74, p. 382 (1915). This language implies that the town owned the “lands left for highways” (that is, the rangeways) in order to “exchange” them. In 1791 the New Hampshire General Court enacted a statute to allow towns to “sell or exchange any land left or appropriated in such town for highways tho’ not actually improved for that purpose . . . .” 5 Laws of New Hampshire 1784-92, p. 577 (1916). This language, too, suggests town ownership of the rangeways.

The 1791 statute was involved in Copp v. Neal, 7 N.H. 275 (1834). A highway abutting land of Neal’s predecessor in title, one Furnald, was discontinued and relocated across land of Copp. The Town of Tuftonborough voted to award the land underlying the discontinued highway to Copp in exchange for the new layout. Years later Neal claimed ownership under the common law rule that the public has only an easement in a highway, and title reverts to the abutter upon discontinuance. The New Hampshire Supreme Court acknowledged the general rule but went on to make the following observation: “There is nothing however to preclude a town from holding the title to land over which highways are laid, and they have frequently claimed the title in cases of ancient rangeways laid out by the original proprietors.” 7 N.H. at 276-77. In fact, Neal’s deed from Furnald conceded the point, referring to the discontinued highway boundary as land “voted by the town to William H. Copp.” Under the circumstances Copp’s right of possession was ruled superior to Neal’s.

Records of various town votes and conveyances from the period confirm the apparent belief that towns owned rangeways and could convey title to rangeway land. Within a few decades, however, assumptions about ownership of rangeways evidently changed. In 1829 the 1791 statute regarding exchange or sale of rangeways was repealed. Laws 1829, Chapter 52. Then, in a major revision of highway statutes, the legislature in 1842 abolished the dedication and acceptance method of creating highways (it was restored in 1945) and released all outstanding dedications of land for highway purposes, which presumably included the dedication of all rangeways not already used as highways. Revised Statutes, 53:7; State v. Atherton, 16 N.H. 203, 213 (1844). Finally, in Morgan v. Palmer, 48 N.H. 336, 337 (1869), the Court observed that “these rangeways were reserved and designated by the proprietors in their original allotments, for public highways if needed … ; practically … these rangeways, when not converted into public highways by the towns, have been treated as a part of one or both of the adjoining lots.” If the statement in Morgan v. Palmer describes all rangeways, then they probably ceased to exist legally in 1842. If, on the other hand, ownership of the rangeways was reserved by the proprietors and transferred by some means to the towns themselves, as widely believed by those who lived during the relevant period, then the 1842 statute has not eliminated them, and they survive as separate parcels.

The trouble with the theory that towns own the rangeways is that there is little or no direct documentary evidence for it. Towns did not acquire title to proprietary lands automatically. South Hampton v. Fowler, 52 N.H. 225, 228 (1872). Proprietors could transfer title either by vote or deed, Atkinson v. Bemis, 11 N.H. 44 (1840), but no such records seem to exist for rangeways. On the other hand, early municipal titles have been established without proof of a conveyance. In Baptist Society in Wilton v. Wilton, 2 N.H. 508 (1822), the town’s title to land was recognized chiefly because it was originally reserved by the proprietors for the ministry. In the modern case of Moultonboro v. Bissonette, 105 N.H. 210 (1963), the town’s title to a public landing was established through language in the 1763 town charter, “… at the end of the highways at the Pond suitable Lots or Parcels of land shall be left for landing places …”, and town meeting votes indicating town possession of a certain area in subsequent years. The Court noted the special difficulties in determining early town land titles and recognized the validity of establishing such titles on the basis of ancient documents and municipal activity.

The Hanover “greenways” controversy of the late 1970s and early 1980s shows that, under the right circumstances, ownership of rangeways (“allotments”) can be important to a town. The Town of Hanover sought to establish a network of recreational trails on a series of paths that were rangeways or had been exchanged for rangeways. (See the Vermont Law Review article cited above.) Both the Town and opposing landowners, who denied the Town’s claims, did a great deal of historical and legal research and analysis. Litigation was averted when a town meeting in 1983 narrowly voted to relinquish the Town’s claims to the greenways.

As in Hanover, towns seeking to establish public trail systems nowadays may find that an ancient rangeway can provide a key link. In such a case, if there is sufficient historic documentation for a town claim, it could be well worthwhile to find out who owns the rangeway.

David Connell is Legal Services Counsel with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.

September 2008, New Hampshire Town and City