An Easement Exists Over a Discontinued Highway When the Easement is Reasonably Necessary for Access

Lauren Shearer v. Ronald Raymond
New Hampshire Supreme Court Case No. 2019-068
Wednesday, January 13, 2021

In this dispute between private property owners the Court ruled that under common law an easement exists over a discontinued highway if the landowner demonstrates that the easement is reasonably necessary for ingress and egress to a landlocked parcel.  Shearer purchased land accessible only over Bowker Road which had been laid out as a public highway in 1766, but was later discontinued in 1898.  Bowker Road begins at a public highway and crosses over Raymond’s property.  At the entrance of Bowker Road, a gate has been maintained for 50 years.   Raymond disputed that Shearer had any form of legal right or easement to use Bowker Road due to the discontinuance in 1898. 

Under current statutory law, and since 1943, a right of access to otherwise landlocked property is preserved when a public highway that gives access to that property is discontinued.  RSA 231:43, III.  Since Bowker Road was discontinued prior to 1943 the Court was called upon to determine the if under common law when a public highway is discontinued or abandoned whether the abutting landowner retains a private right of access.   

The Court reasoned that the right of access to one’s property is fundamental to property ownership.  Due to the absence of a statutory right of access as first codified in 1943, the discontinuance of a highway could leave a landowner without reasonable means of access.  Consequently, the Court ruled that an easement exists over a discontinued highway when the easement is reasonably necessary for access.   To determine whether an easement is necessary the landlocked property owner does not need show that there is no other means of access, only that any alternative access imposes measurable hardship that is unreasonable under the circumstances.  Since this question was not addressed by the Trial Court, the dispute was remanded for a determination whether an easement over Bowker Road is reasonably necessary.


Additional Information: 

Practice Pointer:  Although a private property dispute, the opinion catalogues important principles of property law incident to the creation, and discontinuance of public highways:  (a) when a public highway is laid out the public acquires a right of access, (b) title to the strip of land under the public highway remains in the abutting landowner, (c) the owner of land abutting a public street has a private right of access over that street, (d) the private right of access enjoyed by the abutting land owner can be regulated but it cannot be taken away without compensation.