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2012-081, Kevin P. Sheehan v. New Hampshire Department of Resources and Economic Development
Michael J. DiCola
Opinion Issued: November 15, 2012 Argued: September 20, 2012
RESOURCES AND ECONOMIC DEVELOPMENT NEW HAMPSHIRE DEPARTMENT OF
v.
KEVIN P. SHEEHAN
Jackman Road, which is a class VI town road and not in good condition. The petitioner purchased property in Derry (the Property). The Property abuts The trial court found the following facts. On November 13, 2008, the
No. 2012-081 Rockingham
on his request for declaratory, injunctive, and other relief. We affirm.
, attorney general (Lauren J. Noether
New Hampshire Department of Resources and Economic Development (DRED), reporter@courts.state.nh.us Superior Court (Lewis, J.) entering judgment in favor of the respondent, the CONBOY, J. The petitioner, Kevin P. Sheehan, appeals an order of the
memorandum of law, and Ms. Noether orally), for the respondent. ___________________________ attorney general, and Anne M. Edwards, associate attorney general, on the Michael A. Delaney THE SUPREME COURT OF NEW HAMPSHIRE, senior assistant
, of Hudson, on the brief and orally, for the petitioner.
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
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
. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as transcript, we assume that the evidence was sufficient to support the trial
that the corridor is not a public road. Because the petitioner failed to submit a determined that the State owns the corridor in fee simple and when it found On appeal, the petitioner contends that the trial court erred when it
RSA 216-F:2, II. This appeal followed. has never “constructed” on it. Thus, the court ruled that DRED did not violate of the corridor abutting the Property is not a “public road” because the State
title in fee simple to the corridor through a highway layout and that the portion
several expert witnesses. Ultimately, it determined that the State had acquired The superior court conducted a bench trial on this issue and heard from
RSA 216-F:2, II.
Property from Warner Hill Road. The petitioner alleges that DRED has violated
recreational motor vehicle access over the portion of the corridor separating the equity action seeking to bar DRED from prohibiting or interfering with nonmotor vehicle access. After purchasing the Property, the petitioner filed this
portions of the corridor from DPWH to DRED for recreational trail use. See In 1975, the Governor and Executive Council transferred the unimproved claimed ownership of the corridor and that a gate blocked non-recreational
Before purchasing the Property, the petitioner understood that the State abutting the Property remains an unpaved dirt trail. recreational activities.
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corridor, but improved only certain portions; the portion of the corridor (DPWH) controlled the corridor. The DPWH removed the railroad ties from the Currently, the portion of the corridor abutting the Property is used only for Thereafter, the New Hampshire Department of Public Works and Highways
recreational motor vehicles from using the corridor to access the Property. State in acquiring the corridor was to create a highway over its length. DRED moved a gate nearer to Warner Hill Road, effectively blocking all nonvehicles. In July 2008, however, before the petitioner purchased the Property,
as a Commissioners’ Return of Highway Layout. The purpose expressed by the adjacent abutters, the State acquired the corridor through a mechanism known Property utilized the corridor to access the Property by non-recreational motor abandon the corridor to the State. After extended negotiations with B&M and
RSA 216-F:1, III. Before and after the 1975 transfer, the prior owners of the part of a larger railroad corridor. In the mid-to-late 1930’s, B&M sought to
In the 1930’s, the Boston & Maine Railroad (B&M) owned this tract as
(2011). under DRED’s control as part of its statewide trail system. See RSA ch. 216-F Property is connected to Warner Hill Road by a .44 mile tract of land that is disruptive for the other stated principal purposes.
by the commissioner where, in his opinion, it would be most means of transportation on portions of the trail shall be imposed III. . . . A restriction on the use of any type of a mechanized
become part of the trail system . . . . of the public to pass over existing public roads which may be or II. Nothing in this section shall be construed to limit the right
preserved insofar as is practical . . . . recreational vehicles and the natural scenic beauty thereof shall be ski touring, snowshoeing, snowmobiling, mushing, and off highway
hiking, nature walks, bird watching, horseback riding, bicycling,
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administered under this chapter primarily as recreational trails for
words of a statute considered as a whole. Estate of Gordon-Couture v. Brown
authority to limit the public’s use of the corridor. See I. The trails within the system shall be held, developed and nonetheless, affirm the trial court’s decision because the State has statutory In relevant part, RSA 216-F:2 provides:
We are the final arbiter of the intent of the legislature as expressed in the
interpreted strictly. Id
scheme. Id
Id assume, without deciding, that the trial court erred in both respects, we,
Id. law right is to be taken away, it must be expressed clearly by the legislature. is a presumption that the legislature has no such purpose. Id. If a common omitted)).. While a statute may abolish a common law right, there decision if there are valid alternative grounds to support it.” (quotation Furthermore, statutes in derogation of the common law are to be
.
them, and in light of the policy sought to be advanced by the entire statutory . Our goal is to apply statutes in light of the legislature’s intent in enacting where possible, we ascribe the plain and ordinary meaning to the words used. 152 N.H. 265, 266 (2005). We first examine the language of the statute, and, and whether the corridor constitutes a public road unnecessary. Even if we We find consideration of whether the State acquired fee simple ownership,
reaches the correct result, but on mistaken grounds, [we] will sustain the Catalano v. Town of Windham, 133 N.H. 504, 508 (1990) (“[W]hen a trial court
RSA ch. 216-F; see also
N.H. 228, 229 (2011). court’s conclusion and review for legal error only. See Buatti v. Prentice, 162 is deemed waived. See
recreational purposes such as hiking, nature walks, and bicycling. See
As a final matter, any issue raised in the notice of appeal but not briefed
statute. The legislature enacted RSA chapter 216-F to establish trails for such use. Such an interpretation is contrary to the overall purpose of the from using public roads within its trail system that have not been developed for
pursuant to RSA 216-F:2, II. DRED has not limited “the public’s right to pass over existing public roads,” 4
Under our common law, public highways are subject to State control. State v. reject the petitioner’s interpretation. See intended to prohibit DRED from excluding non-recreational motor vehicles principles when the legislature has not expressed a clear intention to do so. Moreover, the petitioner’s interpretation would abrogate common law
.
travel. Accordingly, we hold that the trial court did not err in concluding that
DALIANIS, C.J.
, and HICKS, LYNN and BASSETT, JJ., concurred.
Affirmed expressed an intention to abrogate these principles under RSA 216-F:2, II, we We cannot conclude that by enacting RSA 216-F:2, II, the legislature
In re Estate of King, 149 N.H. 226, 230 (2003). vehicles over public roads that are part of the trail system. We disagree.
Rather, DRED prohibits one form of access – non-recreational motor vehicle Here, DRED has not barred the petitioner’s access over the corridor.
Brown, 152 N.H. at 266.
(quotation and brackets omitted). Because the legislature has not clearly uses.” RSA 216-F:2, III. which parties shall assert, enjoy, or exercise their rights of highway use.” Id. these provisions preclude the State from restricting non-recreational motor State has the authority to regulate the “time, mode, and circumstances under “may limit the travel uses to certain forms of use.” Id. In other words, the forbidden by the Constitution.” Cox, 91 N.H. at 141. Furthermore, the State permits, and . . . any conditions of permission are proper, provided they are not the Justices, 94 N.H. 501, 503 (1947). A highway’s use is “such as the State Cox, 91 N.H. 137, 141 (1940), aff’d, 312 U.S. 569 (1941); see also Opinion of
in his opinion, it would be most disruptive for the other stated principal trail become part of the trail system. The petitioner asserts that, read together, to restrict the use of any type of a mechanized means of transportation “where, intended to “limit the right of the public to pass over existing public roads” that 216-F:2, I. Additionally, the legislature expressly allows DRED’s commissioner . . . as recreational trails,” RSA 216-F:2, II provides that the section is not RSA
within the statewide trail system shall be “held, developed and administered The petitioner argues that although RSA 216-F:2, I, provides that the trails