New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Selectmen cannot determine (judicially) the status of a road

Gordon, Trustee v. Rye
No. 2009-836, 6/15/2011

In this case, the Court identified another situation for which selectmen may not use the procedures for hearings set forth in RSA Chapter 43. In addition, the Court held that selectmen have no authority to decide if a road has become a public highway by prescription; only a court has jurisdiction to make that determination.

The case stems from a 1996 request by property owners for the Town to plow a portion of their road. It was undisputed that the end of the road was private, but the status of the part for which plowing was requested was uncertain. After plowing the road for several years, the selectmen became concerned about the status of the road and decided to hold a hearing to determine whether it had become a public highway through prescription. (If so, presumably, it would continue to be plowed.) To establish a public highway through prescription, there must be evidence of public use beginning at the latest on January 1, 1948, continuing uninterrupted for at least 20 years in a definite line of travel, with the belief that the public had a right to use it (in essence, without permission of the landowner). See RSA 229:1.

The hearing was conducted using the procedures in RSA Chapter 43, relying on the provisions of RSA 43:1: "On petition to the selectmen for the laying out or altering of highways, or for laying out lands for any public use, and generally for the purpose of deciding any question affecting the conflicting rights or claims of different persons, their proceedings shall be governed by the following rules." After the selectmen determined that the road had not been established as a public highway by prescription, the property owners petitioned the trial court for relief and, after the selectmen's decision was upheld, appealed to the Supreme Court.

The opinion focused on whether the selectmen had authority to decide the legal status of the disputed portion of the road, under RSA Chapter 43 or any other statute. The Court read the language of RSA 43:1 narrowly, consistent with their holding in Correia v. Alton, 157 N.H. 716 (2008), discussed in the January 2009 issue of New Hampshire Town and City, in which the Court held that RSA Chapter 43 does not apply to a hearing for the removal of a full-time police officer. In the current case, it found that RSA Chapter 43 delineates rules to be followed when the selectmen are petitioned to hold a hearing on a question affecting the rights or claims of individuals, but only for the layout or alteration of a highway or some other matter for which another statute authorizes selectmen to hold a hearing. In holding that RSA Chapter 43 applies only when mentioned in another statute, the Court again found persuasive the fact that RSA 41:16-c requires selectmen to hold a hearing under RSA Chapter 43 for the removal of a town clerk, but no statute seems to authorize selectmen to use those procedures for a road status hearing.

The Court then considered whether selectmen have authority to make a quasi-judicial decision about the status of a road at all in a manner that would bind the town, the property owners and the public, and found that they do not. It reviewed RSA 41:8, RSA 41:11, and RSA 47:17, VII, VIII (regarding selectmen's authority to manage the prudential affairs of the town and regulate highway usage), as well as various statutes regarding the layout of public highways. The Court held that none of these statutes conferred authority on selectmen to make a binding determination of whether a road is a public highway or not. As a result, it concluded that such matters must be decided by the superior court, and that the proper avenue for resolution of the question would be a petition for declaratory judgment filed with the court under RSA 491:22, I. Although not discussed in the opinion, selectmen, in the course of exercising their statutory authority regarding maintenance, use and regulation of roads, must make assumptions about the status of roads as a basis for the rest of their decisions. This case does not affect those sorts of administrative decisions.

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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