In what could be a far-reaching decision affecting New Hampshire road law, the Court considered “implied acceptance” in its analysis of whether a paper street had been accepted by a town via the dedication and acceptance method of highway creation. Conventional wisdom has been that acceptance of a dedicated street had to be by some formal act on the part of a municipality, such as a vote of the legislative body, in order to be effective. However, this case illustrates that “implied” acceptance may constitute acceptance, by acts of municipal officials or employees and public use of a dedicated road, even in the absence of a formal vote by the town.
The parties sought to quiet title to the paper street depicted in a 1928 subdivision. The issue in this appeal was whether a paper street became a public highway by dedication and acceptance. The 1928 subdivision plan constituted an offer to dedicate the paper street for public use and there was never a formal acceptance of the paper street by the town. Thus, the Court considered whether there was an “implied acceptance” on the part of the town.
Dedication and acceptance is one of the four ways that a public highway may be created (the others: taking of land by eminent domain and laying out of a highway; through the construction of a road on public land; or by prescription). RSA 229:1. To be effective, there must be both an offer of dedication, the landowner offers up its property to the municipality, and acceptance of that offer by the municipality. The Court explained the importance of the acceptance requirement: “if acceptance were not required, it would be a great hardship upon towns if an individual could lay out a way upon his own land, throw it open to the public, and then oblige the town to charge themselves with the maintenance and repairs of it.”
Although acknowledging the importance of acceptance on the part of the town to avoid the hardship of having ownership of a road forced upon it, the Court explains that such an acceptance could be accomplished by way of an “implied acceptance” by acts on the part of the town’s officers and employees. These acts include opening up or improving a street, repairing it, removing snow from it or assigning police patrols to it. Next, the Court appears to suggest that acceptance by public use could be effective when it can be demonstrated that the paper street was used not just by the lot owners and their guests. Presumably, some action on the part of the town would also be required for implied acceptance otherwise “an individual could lay out a way upon his own land, throw it open to the public, and then oblige the town to charge themselves with the maintenance and repairs of it,” a notion the Court rejects earlier in their opinion. Given that it would be impractical, if not impossible, for a town to stop the public from using a private road should the owner open it up to the public, it seems likely that more than public use would be required for implied acceptance to be effective. As this point is not clear in the opinion, it is impossible to say with any certainty whether public use alone could constitute implied acceptance of a dedicated road. However, the Court noted that to constitute implied acceptance by the town, the use by the public “must be unequivocal and consistent with the purpose of the dedication.”
Since the Court did not find implied acceptance in this case, it declined to speculate on the amount or frequency of public use or acts on the part of the town necessary to establish implied acceptance of a dedicated road. However, the lesson to be taken from this case is that until the town decides to accept the dedicated road, it should treat the road as what it is: private, and not public, property.