Prescriptive Public Road Easement in New Hampshire

[4eyedbuzzard]

Hi all. Location: NH.
Here's my somewhat complex question:

We have a town road that runs through a private parcel of land on the path of an old private easement. At the time this easement was established by deed this (now) "road" was an easement(easement established in deed dated 1967) which essentially continued an existing town road for access to properties retained by the original grantor for him "and others entitled thereto". The original grantor then sold off much of that property in building lots. Then a road was constructed from the other direction (from an existing town road) that connected to the previously "dead end" of the easement, creating a through road.

For approximately 30 years this easement was then essentially treated and used as a town road. The town improved it, maintained it, plowed it, etc. The public travelled it as a through street, including its use as a school bus route. From a prescriptive easement litmus test standpoint the use was routine, adverse, notorious, etc and there is no evidence that the owner of the property from 1967 to 2005 ever objected to its use as a through street over that 30+ year period.

The property has recently sold, and the new owner claims that the town has no right and that the road is illegal as there is no recorded easement nor does the town have title to the land. The new owner has volunteered to give the town the necessary land to relocate the road(at taxpayer expense) on a different part of the property, and there is a proposal by town officials to do so, but this new owner has also been confrontational at a meeting regarding this saying "we can do it this way or the hard way."

This is a small rural town, and the financial burden of constructing this road would constitute some 10% or more of the current municipal operating budget for the proposed two year construction phase. You "big city" folks may laugh, but the $200,000 total over two years is a lot of taxpayer money in a small rural town where the non-school budget last year was some $700,000. This relocation may also well constitute a windfall for the new owner by providing much less expensive access to subdividable lots and/or lands owned by him and parties related to him.

The town's officials who are proposing this project have said they have reviewed the deeds. etc and fell that "this is the right thing to do." Amazingly, I feel the right thing to do is to continue using the existing road. As such, I have asked that the town's attorney review the situation and assess the legal situation.

What do you all think as to the status of the road? Did/does a public prescriptive easement exist that would be binding on the new owner, leaving his remedy being action against his title company? Your comments and help are appreciated.

[LandSurveyor]

There are hundreds of thousands of miles of public streets and highways in the US which have absolutely no recorded easements or rights of way. Are they still valid public ways? Of course they are. They have been used, maintained, and possessed by the public continuously for a long period of time. Thirty years may well be enough time in New Hampshire.

You need the advice of an experienced real estate attorney (perhaps not the town attorney) in this matter. I wouldn't assume that your "new owner's" title company will help him if he doesn't get his way with you. I'm sure there is a typical escape clause regarding unrecorded but valid easements.

And what is his plan regarding the existing deeded private easement? He is going to have to get rid of that too, to completely get rid of the road.

[4eyedbuzzard]

Thanks for answering!

There are hundreds of thousands of miles of public streets and highways in the US which have absolutely no recorded easements or rights of way. Are they still valid public ways? Of course they are. They have been used, maintained, and possessed by the public continuously for a long period of time. Thirty years may well be enough time in New Hampshire.

I believe adverse possession is 20 years here in NH, and typically(not written in stone either way) I've read that courts apply that same time standard in these types of situations, which is why I mentioned the time interval.

You need the advice of an experienced real estate attorney (perhaps not the town attorney) in this matter.

I was thinking that as well. Thanks for reinforcing that belief. What complicates the issue somewhat is the deeded easement for the ROW back before it became part of a through road rather than for the exclusive use of the dominant estates. My position, which I don't think is unreasonable, is that the town's easement is implied and prescriptive by its actual physical existance and use, which was more than reasonably evident when the new owner purchased the property in 2005, and transfers and is binding on the new owner. Another concern, of course, is the legal fees involved in perfecting the prescriptive easement, the town's exposure in litigating the matter, and ultimately an unfavorable ruling . I'm on a the town's budget committee(advisory only - appropriations are by warrant article by town vote), and am basically just trying to protect the taxpayers from incurring unnecessary expense. And roads are really expensive from a tax appropriations standpoint in rural areas do to the low population density and large land parcel sizes.

And what is his plan regarding the existing deeded private easement? He is going to have to get rid of that too, to completely get rid of the road.

He isn't going to tear up the existing road. It will remain and become his driveway as it runs in front of his house(the proposed new road runs in back), connecting to the proposed new road at both ends of his property. With the exception of a small (30' long) ingress/egress ROW affecting one abbutting property, the other dominant estates created under the old deeded easement(which runs back to at least the 1967 conveyance) have not for many years and will not require any easements as they all have ingress/egress off the public road that was built in the 1970's which created the through street issue.

Sigh. Small town politics. Gotta love it.