LEGAL Q&A: Stop Plowing that Private Road!

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

It’s that magical time of year when snow softly sweeps over the landscape. Unfortunately, that also means that it’s the time of year when municipal officials begin to feel the pressure to plow private roads. It’s easy to see why. Municipal officials often feel an obligation to provide basic plowing (and maintenance services out of concern for public safety and a sense of fairness toward fellow taxpayers. It’s easy, then, to see why so many municipal public works departments inevitably get asked to plow private roads.

Municipalities cannot spend public funds for private purposes. That idea was the basis behind the lawsuit in Clapp v. Jaffrey, 97 N.H. 456 (1952). That case, which centered on municipal plowing of private driveways, saw the New Hampshire Supreme Court clearly state that municipalities cannot spend public funds for private purposes – even when those funds are merely going toward paying a municipal employee’s wages – (but municipalities can charge reasonable fees for providing private services). (Of course, your municipal insurance carrier and individual municipal attorney would likely tell your municipality not to offer services for sale in competition with the private market and have a variety of good reasons for that advice.)

The decision in Clapp has caused some heartburn over the years, but the rule was easy to state and easy to remember. Then, 2007 happened. In 2007, the New Hampshire Supreme Court decided another case about roads. It was Hersh v. Plonski, 156 N.H. 511. That case reminded the public (and some lawyers) that cases decided in the early 1800s are, unless overruled, still valid. That just made things harder for municipalities.

Plonski reminded us of the old rule that municipal highways aren’t just created by a formal vote or other formal mechanism called “dedication and acceptance.” Municipal highways can be created because the town does something to that road once it’s built, meaning the “dedication and acceptance” is implied. Helpfully, the New Hampshire Supreme Court listed a number of actions municipalities might take which would imply that the governing body (select board, town council, city council, etc.) meant to accept a private road as a municipal highway. Those include: “opening up or improving a street, repairing it, removing snow from it, or assigning police patrols to it.”

Most often, implied acceptance has occurred through the municipality taking some action to transfer municipal resources to the private road. Some examples include:

• a select board member directing the repair of a road;
• a vote by the town to raise money to repair a road or bridge;
• a select board removing a house which was in the way of a roadway.

There do not seem to be any cases stating that snowplowing alone is enough to qualify as acceptance by the municipality, but municipalities should be aware Plonski left that possibility open.  

Well meaning, but mistaken citizens, may suggest to municipal officials that the layout of a private road as an “emergency lane” pursuant to RSA 231:59-a or for winter maintenance pursuant to RSA 231:24 would allow plowing, but municipal officials must carefully consider the implications of using either statute before doing so. Declaring a road an “emergency lane” only allows the municipality to keep it “passable by firefighting equipment and rescue or emergency vehicles.” That’s a level of plowing which is probably much less than is applied to regular Class V municipal highways when it comes to plowing. It may even mean that in low amounts of snowfall, where firetrucks can easily pass over the snow, no snowplowing is allowed. In addition, the statute requires that the need to keep the road “passable” must be articulable and different from the private benefit to any landowners abutting the road. In other words, the fire chief has to describe to the select board why this particular road needs to be kept passable for firefighting equipment.

Similarly, municipal officials ought to be concerned that a layout for winter maintenance may create liability for the general condition of the road under the insufficiency statutes, RSA 231:90-:92-a. If the municipality suddenly becomes liable for the general condition of the road, then it will be required to do more work on the road. Unfortunately as indicated by Plonski, that may result in the implied acceptance of the road, defeating the whole purpose of laying out for winter maintenance.

In short, stop plowing that private road! By plowing it, you may cause your municipality to own it!

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.