Northern Pass Use of State Highway Easement Is Permitted

Society for the Protection of NH Forests v. Northern Pass Transmission Line, LLC
New Hampshire Supreme Court No. 2016-0322
Monday, January 30, 2017

The Society for the Protection of NH Forests (SPNHF) sued to have the proposed placement of the Northern Pass Transmission in the Route 3 right-of-way in Clarksville declared to be beyond the scope of the permissible use of a highway easement.  The Superior Court ruled the use of right-of-way for the transmission line would be permitted. 

The NH Supreme Court affirmed that decision agreeing with the trial court that use of the public highway easement falls within the scope of the highway easement.  Citing to prior case law, the court observed that public highway easements may be used for the placement of public utilities, including the proposed Northern Pass transmission line.  Furthermore, the installation of utility facilities does not constitute an additional servitude which require the payment of damages to abutting landowners, such as SPNHF.  

Even though, as if often the case with local roads, the fee of the street is in the municipality in trust for public use, or in the adjoining landowner, the regulation of the use of the state right-of-way remains under the paramount control of the legislature.  Through RSA 231:160 and RSA 231:161 the legislature had granted authority to erect utilities in any public highway.  Specifically, these legislative acts demonstrated the use of the right-of-way for the installation of an underground direct current electrical transmission line, with associated facilities, falls squarely within the scope of the public highway easement as a matter of law. 

The Court also rejected the argument of SPNHF that a public highway easement is limited solely to viatic uses involving passage over land.  Instead, the court concluded that the placement of an electrical transmission line is a permitted public highway use.

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Practice Pointer:  This ruling broadens the understanding of what is considered a permitted use within a public right-of-way.  Although viatic uses are generally understood to be limited to use of a public road for public travel, this ruling makes clear that where the legislature has adopted statutes permitted other uses of a public right-of-way, such as public utilities, those uses will be deemed to be within the scope of a highway easement.