New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Discontinued highway did not become a 'private road'

Russell Forest Management, LLC v. Henniker
No. 2010-719, 6/15/2011

In 1797, Bowers Road was laid out as a public highway in Henniker. Almost 100 years later, the 1895 town meeting voted to discontinue it. Fast forward to 2009, when Russell Forest Management, LLC bought a lot accessible only by Bowers Road and applied to the Town for a permit to build a single-family home. Selectmen denied the application under the terms of RSA 674:41 because the lot did not have frontage on a proper category of highway.

RSA 674:41, I prohibits the issuance of a building permit "unless the street giving access to the lot upon which such building is proposed to be placed" meets one of the five requirements listed in the statute. One acceptable category is a "private road," so long as the governing body adopts a policy allowing buildings to be constructed along that road. RSA 674:41, I(d). The plaintiff in this case asserted that Bowers Road was a private road and had become so upon its discontinuance in 1895.

However, the Court found that Bowers Road was not a private road because the discontinuance statute (as it was in effect in 1895) included no provision for a town to change an open public highway into anything other than a totally discontinued highway. As a result, the highway was not public or private, but merely existed as a right of way allowing the plaintiff to cross onto its property over the neighboring property (as established by previous litigation). Since this did not satisfy the statute, no building permit could be issued. (Note that the current form of RSA 231:45 permits a town to discontinue a public highway completely or, alternatively, convert it into a Class VI highway, but says nothing about private roads.)

The unanswered question is, under what conditions, if any, might a public highway be converted into a private road? Further, what is a private road? Sometimes, it is fairly clear: for example, an old roadway serving dozens of lakeside camps. But the term is not defined in either statute or case law. In this case, the Court stated, "[t]he Town could not have made Bowers Road a private road when it was discontinued, and there is no evidence in the record of a later attempt to change its discontinued status…." It could have been laid out at a later time as a Class VI highway, and under current law a town may convert a public highway to a Class VI highway, but it remains to be seen under what conditions, if any, a private road may be created by action of a municipality.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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