This is the second time for this issue to reach the Court. In the prior case, the Court remanded when the trial court ruled that a lane had been a public road in the 1700s but had “probably” been abandoned. Since a public highway cannot be discontinued through abandonment, the Court sent the issue back to the trial court for determination of the status of the road. The trial court got it right on a second look at the issue and the Court upheld the ruling that the lane, referenced in a 1713 deed, is a highway by prescription and is now class VI .
To establish a highway by prescription, it must appear that the general public used the way continuously without interruption for a period of twenty years prior to 1968, and that use must be adverse, that is, under a claim of right without the owner’s permission. Evidence included references to the lane as being a road in several deeds of conveyance as well as references from all historical maps introduced by the parties. The Court noted that a deed reference to a road indicates use by people other than the owners of the land through which the road runs. Archeological remnants of the stone walls lining the lane and the foundation of the Weeks Mill, which was accessed via the lane, supported the finding that the lane was a public road. The Court observed that use of the lane to access a commercial entity creates an inference that the lane was used adversely by the public for at least a twenty-year period in the 18th century.
The defendants argued that, even if the lane was a public highway, it was discontinued pursuant an 1842 statute, claiming the statute was intended to discontinue “old routes” which had not been used in twenty years immediately preceding the passage of the law. The Court disagreed holding that the statute was intended to apply to creation of highways in the future, not to highways already in existence. Here, the lane in question became a public way after twenty years of adverse public use in the mid-1700s—well before enactment of the 1842 statute.
The Court also declined to create a rule of “judicial discontinuance” and stressed that New Hampshire has a “longstanding rule of law that an established public highway cannot be discontinued simply by lack of use.” The Court observed that if the legislature wishes to create a statutory mechanism for discontinuance of ancient roads that have not been used as roads for many years, it is free to do so. Until such time, public roads are discontinued by town vote.