(*Note: The author is a selectman in the town of Greenland where this case occurred.)
In the case of Gill v. Gerrato, No. 2005-03, decided August 3, 2006, the Supreme Court was faced with an appeal from a Superior Court order finding that the plaintiff landowners had a right to access their property by means of an easement leading from a public road over a “lane” present on the defendant’s property. The defendants believed that no “lane” or easement existed, while the plaintiff believed that their right of access was really over an ancient public way. Since both parties disagreed with the trial court’s findings, both parties appealed to the Supreme Court.
The court’s opinion details deed evidence of a way leading from what is currently a Class II state road to “Week’s old [s]aw mill, so called” dating back to 1713. The court viewed the property, and the remnants of the way were apparent on the face of the earth, even today. Although the trial court found that the conveyances created an easement in favor of the plaintiffs, the Supreme Court reversed on technical legal grounds, and held that the plaintiffs had not proven that this right to access the defendant’s property existed.
The case is interesting reading for municipalities for its discussion of the ancient highway issue. The trial court concluded that the “lane” was a public road used during the 1700s, but reasoned that because it had probably been abandoned as a public way, it no longer existed as a public road. The Supreme Court reversed, and remanded the case for factual findings. It reaffirmed the longstanding rule that, “…an established public highway cannot be discontinued simply by lack of use,” citing Thompson v. Major 58 N.H. 242 (1878). If the road is found to currently exist, the municipality may have no duty of maintenance, because a failure to maintain a road for five successive years leads to an automatic classification of the road as Class VI pursuant to RSA 229:5, VII.
On remand to the Superior Court, the plaintiff is now required to establish that this “lane” was once a public road in order to maintain a right of access over the defendant’s property. The plaintiff cannot provide any direct live testimony of public use of the lane, since no one is alive today who actually used the road at the time it was created in the 1700s. The evidence instead must be circumstantial, and could come from old town records, town histories, photographs, maps from the era, and calls in deeds for abutting properties. Locations such as this are present in many municipalities in the state, and local governing bodies or planning boards may be presented with similar “rediscovered roads” as all real property becomes more valuable and development proceeds.