Roadway Legal Hazards: Implied Dedication and Acceptance of Highways
Acceptance of a new highway can sometimes be contentious, but at least municipal officials have been able to rely on a fairly orderly procedure. A road as shown on a subdivision plan is installed by a developer and "dedicated," that is, offered, to the municipality as a public highway. The dedication is "accepted" as a Class V highway by vote of the town meeting, Polizzo v. Hampton, 126 N.H. 398 (1985), or board of selectmen, if the authority has been delegated. In cities, acceptance is by vote of the city council. Perotto v. Claremont, 101 N.H. 267 (1958).
There are four ways to create municipal highways under RSA 229:1. Over the past half-century, "dedication and acceptance" has been by far the most commonly used method. Occasionally, highways are created by the "layout" process, a form of eminent domain under procedures set forth in RSA 231:8 et seq. A highway can also be established by a municipality directly by constructing a road on land the municipality owns or holds an easement to use. The fourth method mentioned in the statute, so-called prescription, by which a highway arises after 20 years of public travel, is of historical importance only: the legislature abolished it in 1968. RSA 229:1.
Highway acceptance is further controlled by other statutes.
- RSA 674:38 provides that the planning board's "[a]pproval of a plat shall not be deemed to constitute or result in an acceptance by the municipality or the public of the dedication of any street … shown upon the plat."
- RSA 674:40 provides that, unless the road is shown on a plan approved by the planning board or the board has otherwise given its approval for acceptance, a new highway may be accepted at town meeting only by a two-thirds vote.
- RSA 674:40-a authorizes the town meeting to delegate to the board of selectmen the power to accept as highways roads shown on plans that have been approved by the planning board.
Under these statutes, modern highway acceptance is designed to be a planned, controlled process.
Hersh v. Plonski: Implied Dedication and Acceptance
In Hersh v. Plonski, 156 N.H. 511, 515-16 (2007), the New Hampshire Supreme Court reaffirmed the viability of the old common law rule that "dedication and acceptance" is not limited to formal action by municipal legislative bodies pursuant to statutory procedures:
Both an offer to dedicate and an acceptance may be express or implied.… [A]cceptance may be by express acts that include adopting an offer of dedication by ordinance or formal resolution, or implied by acts such as opening up or improving a street, repairing it, removing snow from it, or assigning police patrols to it…. "[P]roof of acceptance by the public must be unequivocal, clear and satisfactory, and inconsistent with any other construction." (citations omitted)
In discussing implied dedication and acceptance of highways, the Court cited State v. Atherton, 16 N.H. 203 (1844), the leading New Hampshire case on the subject. The opinion thoroughly reviews the evolution of this ancient doctrine from English common law through New Hampshire cases of the early 19th Century. Dedication could be proven by some act indicating an intention to dedicate, such as fencing land in a manner suitable for a highway and permitting the public to use it. The Court discussed several examples of acts that could constitute acceptance of a road as a public highway, with the accompanying responsibility to maintain it thereafter in a suitable condition for public travel:
- Repairs directed by individual selectmen, implying that a majority concurred in accepting the highway.
- A vote by the town to raise money to repair the road.
- Town repair of a private bridge regularly used by the public, citing State v. Campton, 2 N.H. 513 (1822).
- Setting up of guideposts or other acts of official recognition.
- Selectmen's removal of a house encroaching on a road, citing Hopkins v. Crombie, 4 N.H. 520 (1829).
Legislature Abolishes Common Law - 1842
The leading case concerning implied dedication and acceptance dates from 1844 because in 1842 the legislature abolished dedication and acceptance as a method for creating public highways. Revised Statutes 53:7. (For excellent discussions of dedication and acceptance, see Attorney Peter Loughlin's treatise Municipal Taxation and Road Law, New Hampshire Practice Series, Vol. 16, sections 45.01 and 45.02; and Attorney Paul Alfano's New Hampshire Bar Journal article "Roads Revisited: Creation and Termination of Highways in New HampshireAn Update," 46 N.H.B.J. No. 3, p. 56, Fall 2005.) The elimination of dedication and acceptance by the legislature was said to substitute "a definite and simple rule for one that was uncertain and perplexing." State v. Morse, 50 N.H. 9, 16 (1870). For the next 100 years, highways could be created only by the layout process or 20 years' public use.
Legislature Enacts Statute - 1945
Dedication and acceptance was re-introduced by statute in 1945, when the legislature enacted it as an alternative to the laborious layout process and the prolonged and haphazard prescription method. It has functioned as the principal means of highway creation, as described above, ever since. However, municipal officials must also remain aware that, under Hersh v. Plonski, the term "dedication and acceptance" still retains its common law meaning.
Maintenance of a Private Road Implies Acceptance as a Public Highway
Just about every town and city in New Hampshire has houses situated on private roads that are open to public use and thereby dedicated as potential highways. Some private roads predate municipal planning; for example, the lakeside camp developments dating from the first half of the 20th Century, many of which now have winterized year-round dwellings. Other private roads are modern roads installed in subdivisions that are still under development. In both cases, residents are apt to request municipal snowplowing and summer maintenance to keep the roads passable. Municipal officials may feel an obligation to provide services out of concern for public safety and a sense of fairness toward fellow taxpayers. However (as is regularly pointed out in New Hampshire Town and City, for example, "Winter Maintenance of Roads and Sidewalks," November/December 2009), the Supreme Court has ruled that municipalities cannot spend public funds to maintain private roads or driveways, unless (a) such maintenance is subordinate and incidental to public highway maintenance, and (b) the landowner pays the additional costs incurred by the town in providing the service. Clapp v. Jaffrey, 97 N.H. 456 (1952). The doctrine of implied acceptance of public highways, revived by Hersh v. Plonski, intensifies the legal risks associated with public maintenance of private roads. Inasmuch as private road maintenance is not authorized in the first place, when a town, nevertheless, performs such work, it can readily be viewed as evidence of implied acceptance of that private road as a public highway.
When dealing with private roads, municipal officials must keep in mind the elements of common law implied acceptance of highways. It is not enough that the usual practice is to accept roads by town meeting vote. Municipal officials should refrain from maintaining private roads and at all times make clear that they (a) do not regard a private road as a public highway and (b) do not intend by their actions to accept it as public.
If officials insist on some limited maintenance of private roads, the following may help to prevent implied acceptance:
- For snowplowing, a layout for winter maintenance only under RSA 231:24, but this might create liability for the general condition of the road under RSA 231:90-:92-a.
- For summer maintenance only, a layout of a "highway to summer cottages" under RSA 231:81, but, again, it is unclear of the extent of liability for the general condition of the road.
- Formal agreements with property owners that recapture costs to satisfy Clapp v. Jaffrey and clarify the private status of the road.
- "Emergency lane" designation under RSA 231:59-a to keep the road "passable by firefighting equipment and rescue or emergency vehicles," but this is justified only if the need is supported "by an identifiable public welfare or safety interest that surpasses or differs from any private benefits to landowners abutting such lane."
These options are obviously not without their disadvantages.
For its part, the legislature may wish to consider whether to clarify the meaning of "dedication and acceptance" in RSA 229:1. Implied acceptance by repair, maintenance, police patrols and the like would seem inconsistent with the deliberate planning for acceptance of highways envisioned by RSA 674:40. Prescription as a method of unplanned highway creation was abolished by the legislature in 1968. It may now be time to abolish implied acceptance of highways.
David Connell is Legal Services Counsel with the New Hampshire Local Government Center's Legal Services and Government Affairs Department.
Local officials in NHMA-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday, 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 384. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.