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.