The railroads have been a fixture in our state since the 1840s. When a rail line and a public highway intersect one another, it is called a “public crossing.” When a property owner uses a private road to access the land he or she owns on both sides of the track, it is called a “private crossing.” Pursuant to RSA 373:1, railroads have a duty to provide “suitable crossings” of the railroad in the “private crossing” situation. Although there are hundreds of private crossings throughout the state, this is the first time that the New Hampshire Supreme Court has been called upon to construe the meaning of this statute in the context of an owner that desired a private crossing to install privately owned utility lines beneath an active rail line.
The Boston and Maine Railroad is the current owner and operator of an active rail line located in Newington that was constructed during the 1870s. When the line was laid out, the railroad purchased a strip of land upon which the line was constructed, and granted an easement by deed to the landowner whose property was bisected by the line to cross the railroad at grade. As time passed, the railroad use declined, but the abutting land was developed from an agricultural use into a major commercial petroleum distribution facility. Home heating and motor fuel is brought into the Piscataqua River facility by barge, offloaded into storage tanks, and then piped under these railroad tracks to a distribution rack where it is loaded into fuel trucks for shipment throughout the state.
The dispute arose when the railroad attempted to terminate existing license agreements controlling the use of the at-grade vehicular crossing over the rail line, and to charge licensing fees for the maintenance of the underground fuel pipes, or in the alternative stop the flow of fuel through the underground pipes. Sprague refused to pay the fees that were claimed, and sought a court declaration that the at-grade crossing easement allowed it to install the pipes underneath the rail line without any duty to pay the railroad, or in the alternative that RSA 373:1 required the railroad to permit the installation and maintenance of the underground pipeline crossing without charge. The railroad argued that the language of the 1870 easement deed did not permit a subsurface use of the land, and that if RSA 373:1 were held to require it to provide suitable facilities for a crossing, that the statute amounted to an unconstitutional taking of its property.
The Supreme Court held that RSA 373:1 does in fact impose a duty upon railroads to provide suitable facilities for private crossings, and that this includes the duty to allow the installation of underground piping. The railroad's argument regarding the constitutionality of the statute was rejected as having been improperly preserved for appeal. The court then agreed with the railroad that the language of the 1870 easement deed for an at-grade crossing was insufficient to support the installation of the underground piping. The remainder of the case dealt with a narrow issue regarding removal of a length of track by Sprague that was held to be in violation of a deed covenant between the parties.
The Supreme Court continues to construe the language of easements contained in deeds strictly and narrowly. Thus, all officials who are involved in creating or reviewing deeds for this type of property transfer should be cautious that the language used in the deed precisely describes all of the actual or potential uses of the easement intended by the parties. For those municipalities where active rail lines continue in operation, the case supports the ability of both property owners and utilities to require railroads to allow private underground utility crossings of the rail line without imposing licensing fees, or other substantial impediments to extensions of these utility facilities. The rule applies to both privately owned railroads and to the state owned rail lines, since RSA 373:1-a imposes the same duty upon the state as is imposed upon the private railroads by RSA 373:1.