2009-836 Peter L. Gordon, Trustee of the Peter L. Gordon Revocable Trust of 1999 & a. v. Town of Rye

No. 2009-836

Rockingham

Road at issue lies south of the jetty marking the entrance to Rye Harbor and Michael L. Donovan The following facts are supported by the record. The section of Harbor

Wadleigh, Starr & Peters, P.L.L.C.

affirm in part, vacate in part and remand. (board) that a portion of the road had not become public by prescription. We Superior Court (Nicolosi, J.) affirming a decision of the Rye Board of Selectmen

THE SUPREME COURT OF NEW HAMPSHIRE on the brief and orally), for the petitioners.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as highways and the benefited persons fully compensate the Town.” In his letter, p. 2 maintenance is ‘subordinate and incidental’ to the needs of the Town’s own lawfully spend public money to maintain a private road unless the Harbor Road property owners by letter that “State law does not allow a town to On November 27, 2007, the town administrator notified the affected

be able to plow approximately the last one hundred feet of Harbor Road. plowing the town portion of Harbor Road, which meant that the town would not his property or the right-of-way through his property to turn around when McLaughlin had notified the town that its plow trucks would not be able to use situation at the end of Harbor Road adjacent to the McLaughlin property.” On December 28, 2006, the board conducted a site visit to “review[] the

and turn around.” terminus of Harbor Road for the Town to access their R.O.W.’s in order to plow received from [the] property owners beyond the McLaughlin gate at the At its December 12 meeting, the selectmen noted that “[a]uthorization has been

in front of the gate. the gate is down, our plows cannot turn around or clear the snow Road is still in place must be resolved prior to the first plowing. If at the entrance to the McLaughlin property at the end of Harbor [w]ith winter approaching, the question of whether or not the gate

meeting, the board noted that town to turn its snow removal equipment around. At its November 10, 2005 right-of-way continuing off the end of Harbor Road, making it difficult for the section of the road until the McLaughlins erected a gate across the private town road down to that point.” The town continued to plow the disputed “plow Harbor Road as far as the McLaughlin property line, as the road is a On January 9, 2001, the board directed the public works director to

that “he would be plowed.” its December 16 meeting and on January 13, 1997, the board informed Gordon road and whether it was a town road. The board discussed the issue again at and noted that a decision needed to be made whether the town would plow the Subsequently, at its September 9 meeting, the board discussed the question another Harbor Road resident asked the town to plow the end of Harbor Road. At a July 29, 1996 meeting of the board, petitioner Peter L. Gordon and

of this gate, Harbor Road is a private road. properties from the end of Harbor Road. The parties do not dispute that south This section of the road provides the only means of access to the petitioners’ erected at the boundary between lot six and lot five (the McLaughlin property). runs approximately 350 feet around a bend and then southerly to a locked gate p. 3 December 1, 2008, the board issued its written decision. The petitioners filed a disputed section of Harbor Road] is and has always been a private road.” On clearly state that the road is to be maintained by the property owners, that [the convincing evidence showing this to be a public road, and because the deeds On November 17, 2008, the board decided that “due to the lack of

and aerial photographs, property deeds and written and oral testimony. the provisions of RSA chapter 43. At the hearing, the board considered maps opened the October hearing by stating that the hearing would be held under After summarizing the purpose of the hearing, the chairman of the board

and copying at the Selectmen’s Office, Rye Town Hall. information reviewed by Town Counsel is available for inspection

notebook containing the deeds and plans of record and other opinion and his analysis . . . is appended to this notice. A right-of-way and not a town road. A copy of Town Counsel’s status of this section of Harbor Road and opined that it is a private

Please be advised that Town Counsel has reviewed the legal

relative to the legal status of this section of Harbor Road.

and provide the Board of Selectmen with testimony and evidence which the Board of Selectmen makes. You may attend the hearing Harbor Road, your property rights may be affected by the decision

As a property owner whose lot is accessed by this section of

private right-of[-]way, the Town will discontinue maintenance of it. If the Board of Selectmen determines that this section of road is a decision concerning the legal status of this section of Harbor Road.

After the hearing, the Board of Selectmen is expected to make a

Lot”) is a town road or a private right-of-way. 3 lot owned by Family Harbor Realty Trust (i.e. the “McLaughlin’s section of Harbor Road between the Rye Harbor south jetty and the

of Rye Board of Selectmen will hold a hearing on whether the [O]n October 20, 2008 at 6:30 p.m. at the Rye Town Hall, the Town

On September 19, 2008, the board issued a notice of hearing stating:

Road beyond the jetty is a town road.” property owner as a representation by the [town] that the section of Harbor 2007-2008 winter but that this action “should not be construed by any that the town would continue plowing the disputed section of road during the affected property owners were away for the winter months. The letter stated private status of the disputed section of Harbor Road because some of the the administrator stated that the board would defer deciding on the public or p. 4 (Citation omitted.)

jurisdiction pursuant to RSA 43:1. petitioners, the Board properly exercised subject matter affecting the conflicting rights and claims of both the Town and the

Disputed Road Section is a public road, which is a question

different persons.” Because the Board analyzed whether the deciding any question affecting the conflicting rights or claims of a highway, but also applies to a petition for “the purpose of RSA Chapter 43 is not merely limited to petitions to layout or alter

board’s subject matter jurisdiction, the court ruled that subjecting the proceedings to the doctrine of res judicata. Regarding the Harbor Road, the court ruled that it did not qualify as a final decision Regarding the board’s 1997 decision to resume plowing the disputed section of reviewed the board’s decision on this issue and found it to be lawful. portion of Harbor Road became a public road by prescription. The trial court that the standard to be applied by the board would be whether the disputed The trial court’s order notes that the petitioners and the board agreed

regulate roads without any action by the town meeting.” conferred by RSA 41:11, which, it argued, gives the board “total authority to public or private. The town argued that the board’s jurisdiction over roads is provide the board with subject matter jurisdiction to decide whether a road is the merits hearing, the petitioners argued that RSA chapter 43 does not and a declaration that the disputed section of Harbor Road is a public road. At declaratory relief in the superior court, seeking a review of the board’s decision The petitioners filed a petition for a writ of certiorari, mandamus and

was not a lawfully established town road.” determine whether or not the section of Harbor Rd. south of the jetty was or town road must lawfully exist as a town road. This proceeding was intended to because “[i]n order for a town meeting to vote to discontinue a town road, the status of this section of Harbor Road” and that RSA 231:45-a, I, does not apply notified the property owners that it would hold a hearing to determine the jurisdiction argument “could have been raised in 2007 when the selectmen first meeting.” Denying the motion for rehearing, the board stated that the in 1997, the only way it may be discontinued is by legislative action at Town discontinue maintenance of a road is RSA 231:45-a, I. If the road was public layout or alter a highway before the Board” and “[t]he sole jurisdiction to under chapter 43.” The petitioners also argued that “[t]here was no petition to Harbor Road south of the jetty to the McLaughlin property was a public road the board “lacked subject matter jurisdiction to rule on the issue whether Rye motion for rehearing, arguing that the board’s decision was unlawful because p. 5 In the Matter of Gray & Gray

waive subject matter jurisdiction. any time during the proceeding, including on appeal, and may not jurisdiction. A party may challenge subject matter jurisdiction at determine a case concerning subject matters over which it has no controversy involved in the action. A court lacks power to hear or words, it is a tribunal’s authority to adjudicate the type of rule on the conduct of persons or the status of things. In other case and the type of relief sought; the extent to which a court can Subject matter jurisdiction is jurisdiction over the nature of the

prescription. determine whether the disputed section of Harbor Road became public by We agree, however, that the board lacked subject matter jurisdiction to

Jurisdiction over the subject matter of a controversy cannot be acquired by matter jurisdiction may be raised on appeal by the court sua sponte). brackets omitted); see State v. Demesmin, 159 N.H. 595, 597 (2010) (subject

request made by petitioner Gordon at its 1997 meeting.” See determine that the road was a public road” but “merely responded to a plowing of the record supports the trial court’s finding that the board “did not 1997 decision as determining that the disputed section is a town road, a review Road Section” in 2008. Despite the petitioners’ characterization of the board’s effect, thereby preventing the board from “reopening the status of the Disputed resume plowing the disputed section of Harbor Road is entitled to preclusive We disagree with the petitioners that the board’s decision in 1997 to erroneous as a matter of law). on a certiorari petition unless it is not supported by the evidence or is of Nashua, 156 N.H. 228, 230 (2007) (we will uphold the trial court’s decision

then it falls to the board of selectmen to make that determination.” arises in a town as to whether a particular street is a public or private street, for performing the duties prescribed by law” and, accordingly, “[i]f a dispute 41:8, the board “has the prudential responsibility for managing town affairs and other than by a petition for layout. The town argues that, pursuant to RSA confer upon the board subject matter jurisdiction to change a roadway’s status public by prescription. The petitioners argue that RSA chapter 43 does not had jurisdiction to decide whether the section of Harbor Road at issue became ordered the parties to submit supplemental briefs addressing whether the board did not establish a public road by prescription. Following oral argument, we limited to snowplowing; and (3) that the board correctly decided that petitioners decision entitled to preclusive effect; (2) that the board’s 1997 decision was that the board’s 1997 decision that the road was a public road was not a The petitioners appealed, arguing that the trial court erred in ruling: (1) p. 6 Rich v. Errol

powers of selectmen. statutes, the more restricted is the view that we find taken of the

relative rights of property owners.” Gray v. Seidel “[t]his statute . . . does not provide towns with the authority to determine the regulate all streets and public ways, wharves, docks, and squares.” However, subject.” RSA 47:17, VII (Supp. 2010) grants the selectmen the authority “[t]o 47:17, VII, VIII, and XVIII, and by any other provisions of the laws upon the this purpose may exercise all the powers conferred on city councils by RSA that the nearer we get to the time of the framers of the early all public highways, sidewalks, and commons in their respective towns and for manage all the prudential affairs of the town,’—it is worthy of note RSA 41:11 (2003) provides that “the selectmen may regulate the use of

In determining the meaning of the ancient statutory phrase,—‘to these provisions is applicable to the issue before us. 47:17, XVIII (Supp. 2010) governs automobile parking controls; thus, neither of RSA 47:17, VIII (Supp. 2010) governs traffic devices and signals and RSA

affairs of the town and perform the duties by law prescribed.” RSA 41:8 (2003). omitted). limited authority conferred on them by their office.” Id A board of selectmen has the responsibility to “manage the prudential. at 354 (quotation powers and perform such duties as are properly incident to the special and

, 51 N.H. 350, 355 (1871). Selectmen “can only exercise such

statutory interpretation, which is a question of law that we review de the disputed section of Harbor Road became public by prescription requires statutory scheme and not in isolation.” Id Whether the board had subject matter jurisdiction to determine whether. (quotation omitted). not see fit to include. We interpret a statute in the context of the overall what the legislature might have said or add language that the legislature did “We interpret legislative intent from the statute as written and will not consider Teachers Assoc., 158 N.H. 453, 456 (2009) (quotations and citations omitted). the plain and ordinary meaning to the words used.” Petition of Farmington considered as a whole. When examining the language of a statute, we ascribe arbiter of the intent of the legislature as expressed in the words of a statute Appeal of Thermo-Fisher Scientific, 160 N.H. 670, 672 (2010). “We are the final

waived this issue. See Demesmin, 159 N.H. at 597. may be raised at any time, we reject the town’s argument that the petitioners Hemenway, 159 N.H. 680, 684 (2010). Because subject matter jurisdiction subject matter jurisdiction, a tribunal’s order is void. See Hemenway v. agreement of the parties. Burleigh v. Leun, 83 N.H. 115, 117 (1927). Absent individuals.” Kerouac v. Town of Hollis p. 7 petitioned to hold a hearing on a question affecting the rights or claims of “RSA chapter 43 delineates rules to be followed when the selectmen are

that RSA chapter 43 established subject matter jurisdiction in the board over Porter, 159 N.H. 212, 214-15 (2009). We note that the town does not argue statute”), superseded by statute on other grounds, as stated by In re Estate of jurisdiction; rather, its “powers are limited to those conferred upon it by determine whether a road has become public by prescription. See None of these statutory provisions authorizes a board of selectmen to O’Dwyer, 135 N.H. 323, 324-25 (1992) (probate court not a court of general be derived from the legislature as set forth by statute. Cf. In re Estate of affecting the conflicting rights or claims of different persons,” RSA 43:1, must to hear. Whatever jurisdiction the board may possess pertaining to a “question jurisdiction in the board over a matter it is not otherwise statutorily authorized chapter 43. RSA 41:16-c, IV(a). RSA chapter 43 does not, however, establish 41:16-c (Supp. 2010), the hearing must be conducted in accordance with RSA conducts a hearing for the removal of a town clerk, as authorized by RSA follow the procedures in RSA chapter 43. See RSA 43:1. Or, when the board example, when the board holds a hearing for laying out a highway, it must

disagree. board had such subject matter jurisdiction pursuant to RSA 43:1. We by the public, or by dedication and acceptance). The trial court found that the through the construction of a road on public land, through twenty years of use eminent domain and laying out of a highway by some governmental authority, (1985) (noting that a public highway may be created through taking of land by (2009) (defining highways); Polizzo v. Town of Hampton, 126 N.H. 398, 401

rights-of-way, RSA 231:28 (2009). highway,” RSA 231:27 (2009), or make a conditional layout for existing private “reestablish the boundary lines, limits and locations of any class IV, V or VI 231:23 (2009), lay out a road exclusively for winter use, RSA 231:24 (2009), (2009). The selectmen also have authority to make a conditional layout, RSA petitioner has no other access to his land by public highway. RSA 231:22 subject to gates and bars, in the location in which it previously existed if the the selectmen must, in the absence of written objection, lay out a highway, hearing on the petitioned highway layout. RSA 231:9 (2009). Upon petition, that the petition ought not be granted, they must give notice and hold a public shall be occasion.” RSA 231:8 (2009). Unless the selectmen are of the opinion highway or alter any such existing highway within their town for which there highway not financed . . . with federal aid highway funds, and class V or VI 231:1 (2009). Upon petition, the selectmen “may lay out any new class IV financed with federal aid highway funds, and class V and VI highways. RSA RSA 41:11, selectmen have the duty to lay out all class IV highways not In addition, pursuant to “other provisions of the laws upon the subject,” p. 8 Affirmed in part; vacated in 8

remand the case to the trial court for it to decide this issue de prescription. Accordingly, we vacate that portion of the trial court’s order and determine whether the disputed section of Harbor Road became public by DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred. We conclude that the board lacked subject matter jurisdiction to

Causes of Action to Establish Private Easement by Prescription the claimed easement is located will be the appropriate forum.” Larsson, realty, the state court with jurisdiction to determine title to the property where prescription require a determination of ownership and possessory rights to “[A]s a general rule, since actions involving a claim to an easement by part; and remanded.

determining such rights has been created by statute). determine relative property rights of owners when no other provision for 143 N.H. at 330 (declaratory judgment action in superior court appropriate to

question as between the parties”). against any person claiming adversely to such right or title to determine the legal or equitable right or title may maintain a petition [in the superior court] N.H. 294, 297 (1990); see RSA 491:22, I (2010) (“any person claiming a present with adverse claims to an interest in real property.” Radkay v. Confalone, 133 declaratory judgment actions can be brought in superior court by parties faced 217 (2009). In this state, “[t]he legislature has specifically provided that

Chapter 43 only to guide its procedures.” to determine the town’s maintenance responsibility elsewhere” and “used this issue. Rather, the town argues that “[t]he selectmen found their authority