2018-0094, Appeal of Town of Lincoln

Company constructed the levee on company property along the Pemigewasset The record supports the following facts. In 1912, the Franconia Paper

maintain and repair the levee. We reverse. RSA 482: 11 - a (2013), and therefore was obligated under the statute to The Water Council found that the Town was the owner of the levee pursuant to northwesterly bank of the East Branch of the Pemigewasset River in Lincoln. gran i t e block facing, located along appr oximately 1,700 feet of the Town to repair the Pemigewasset River Levee, a fortified embankment with New Hampshire Department of Environmental Services (DES), ordering the New Hampshire Water Council upholding a decision by the respondent, the BASSETT, J. The petitioner, the Town of Lincoln, appeal s an order of the

attorney general, on the brief and orally), for the respondent. Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant

and Brooke Lovett Shilo on the brief, and Mr. Hilliard orally), for the petitioner. Upton & Hatfield, LLP, of Portsmouth and Concord (Russell F. Hilliard

No. 2018 - 0094 New Hampshir e Water Council

http://www.courts.state.nh.us/supreme. release. The direct address of the court’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to pre ss. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

to maintain the [levee] on the northerly bank of said East Branch [Franconia Paper Company] by instruments executed. . . in 1961) obligations of the [Franconia Paper Company] (assumed by the conveyance covenants and agrees to assume and discharge the [t] he [Franconia Manufacturing Corporation], by accepting this

pr ovided that maintenance and operation . . . .” (the 1971 d eed). The 1971 deed also any time to inspect the restored flood control [levee] with a view to its proper the present access road or by whatever route is necessary and convenient at and the United States held easements enabling them to “enter the premises via granted to the Town and the United States, and provided that both the Town Manufacturing Corporation was taki ng the land subject to the rights previously Corporation by quitclaim deed. The deed provided that Franconia name, conveyed certain parcels of land to the Franconia Manufacturing In 1971, t he Franconia Paper Company, then under a new corporate

Army Corps. Pursuant to these agreements, the reconstruction of the levee was done by the interfere with those it had granted to the Town and the United States. for itself, and its successors and assigns, all rights in the land that would not operation.” The REA also provided that the Fr anconia Paper Company reserved inspect the restored [levee] with a view to its proper maintenance and in the restoration of the [levee], and to enter upon said lands at any time to enter upon the. . . lands to perform construction work of any nature necessary Company. The REA granted to the Town and the United States the “right to Right - of - Entry Agreement (the REA) with the fee owner, the Franconia Paper Town did not own the land o r the levee, in July 1960 the Town entered into a In order to satisfy these obligation s to the Army Corps, and because the

Secretary of the Army. completion in accordance with regulations prescribed by the construction works; (c) maintain and operate all the works after hold and save the United States free from damages due t o the and rights - of - way necessary for the construction of the project; (b) (a) provide without cost to the United States, all lands, easements,

Town to Assurance A greement with the Army Corps (the Assurance), obligating the necessary for the restoration project. In June 1960, t he Town executed an agreement s with the Army Corps, and to “acquire any real estate interests” Flood Control Act of 19 p. 3 36, t he residents authorized the Town to enter into project, and in order to secure federal funding for the restoration under the be performed by the United States Army Corps of Engineers. To facilitate the 1960, the residents of the Town vote d to approve a restoration of the levee, to River. In 1959, t he levee was damaged by a flood. A t town mee ting in March 3

competent evidence in the record.” Appeal of Cook, 170 N.H. 746, 749 (2018). evidence, but, rather, to determine whether the findings are supported by not to determine whether we would have found differently or to reweigh the unjust or unreasonable.” Id. “In reviewing the Council’s findings, our task is satisfied, by a clear preponderance of the evidence before it, that such order is shall not be set aside or vacated except for errors of law, un less the court is pr ima facie lawful and reasonable.” Id. “[T] he order or decision appealed from Council] upon all questions of fact properly before it shall be deemed to be unreasonable or unlawful.” RSA 541:1 p. 3 3 (20 07). “[A]ll findings of the [Water order bears the burden of proof “to show that the [order] is clearly RSA 21 - O:14, III (20 12). T he party seeking to set aside the Water Council’s RSA chapter 541 governs our review of Water Council decisions. See

followed. The Water Council denied the Town’s motion for rehearing, and t his appeal

the repair and maintenance requirements of [RSA 482:11 - a]. in the dam that is sufficient for purposes of imposing on [the Town] regulatory action is rejected. The Town holds an easement interest meaning of RSA 482:11 - a, and therefore not subject to DES the Town’s argument that it is not the owner of the dam within the

stated that owner o f the levee within the meaning of RSA 482:11 - a. The Water Council selectmen pursuant to RSA 41:14 - a (2012), it also found that the Town was the acceptance, see Hersh v. Plonski, 156 N.H. 511, 514 - 16 (2007), or a vote of the acquired fee ownership through either the process of dedication and Council found that the Town was not the fee owner of the levee, and had not shall not become a dam in disrepair.” RSA 482:11 - a. Al though the Water provides that “[t]he owner of a dam shall maintain and repair the dam so that it cross - motions for summ ary judgment, interpreting RSA 482:11 - a, which The Water Council upheld the DES decision in an order on the parties’

owner of the levee. The Town appealed the o rder to the Water Council. repair the levee, concluding, without express analysis, that the Town was the t he Town and DES failed to agree on how to proceed, DES o rder ed the Town to owner of the levee, it already had plans to complete the needed repair s. After compliance. The Town responded to DES, stating that, although it was not the the levee ’s defects and requesting that the Town bring the levee back into (201 p. 3 3). I n August 2015, DES issued a Letter of Deficiency to the Town listing disrepair,” classif ying it as a “high hazard [potential] dam.” See RSA 482:2, I, V 2014 and 2015, DES inspected th e levee and determined that it was a “dam in In 2011, the levee was severely damaged by Tropical Storm Irene. In

Army Engineers. as constructed by and under the supervision of the United States p. 4 4

the policy or purpose sought to be advanced by the statutory scheme.” Id. discern the legislature’s intent and to interpret statutory language in light of within the context of the statute a s a whole.” Id. “This enables us to better “Moreover, we do not consider words and phrases in isolation, but rather purpose and avoid an absurd or unjust result.” Carrier, 165 N.H. at 721. omitted). “We construe all parts of a statute together to effectuate its overall effect.” Garand v. Town of Exeter, 159 N.H. 136, 1 p. 4 41 (2009) (quotation provisions and whenever possible, every word of a statute should be given Id. “The legislature is not presumed to waste words or enact redundant might have said or add language that the legislature did no t see fit to include.” intent from the statute as written and will not consider what the legislature according to its plain and ordinary meaning.” Id. “We interpret legislative to the language of the statute itself, and, if possible, construe that language expressed in the words of a statute considered as a whole.” Id. “We first look interpretation, we are the final arbiter of the intent of the legislature as Petition of Ca rrier, 165 N.H. 719, 721 (2013). “In matters of statutory “Statutory interpretation is a question of law, which we review de novo.” meaning of RSA 482:11 - a requires that we engage in statutory interpretation. Resolution of the question of whether the Town is an “owner” within the

below, we agree with the Town. that Michele is distinguishable and does not control. For the reasons set forth the Town an owner within the meaning of RSA p. 4 482:11 - a. The Town contends REA, and the 1971 d eed constitute a “series of transactions” sufficient to make definition of “owner” set forth in Michele, and that, if we do, the Assurance, t he purposes of RSA 482 - A.” Second, DES contends that we should apply the court “has already determined that an easement holder is an owner for decision in Appeal of Michele, 168 N.H. 98, 1 02 - 05 (2015), it asserts that this position, DES offers two interrelated arguments. First, citing our recent argues that fee ownership is not required by RSA 482:11 - a. In support of this DES acknowledg es that the Town is not the fee owner of the levee, yet it

meaning of RSA p. 4 482:11 - a. set forth in the REA — is insufficient to make the Town an “owner” within the definition because its only property interest in the levee — the right of access the property at issue. T he Town asserts that it does not fall within th is word “owner” means one who has at least “legal, rightful, or equitable title” to be the fee simple owner of the property. Rather, t he Town contends that the to be an “owner” for the purposes of RSA 482:1 1 - a, the person or entity must within the meaning of RSA 482:11 - a. The Town does not argue that, in order unreasonable or unlawful because the Town is not the “owner” of the levee T he Town argues that the Water Council’s decision is clearly

p. 5 5 p. 4 41:13. We review the Water Council’s rulings on issues of law de novo. See i d.; RSA 5

common law [could] apply for a dock permit,” and that, “[g] iven the broad grant W e concluded, therefore, that “anyone who could build a dock under the to enable it to enjoy the easement beneficially.” Id. at 103 (quotations omitted). that “a grantee takes by implication whatever rights are reasonably necessary that “an easement is a nonpossessory right to the use of another’s land,” and subject land “for whatever purposes they may desire.” Id. at 100. We observed the holders of the easement with the legal right to the “exclusive use” of the at issue in Michele. In Michele, the easement at issue was expansive, providing importantly, the scope of the easement in this case is far narrower than the one T he facts in this case differ significantly from those in Michele. Most

such as the [easement holders],” were “owners” under RSA 482 - A:11, II. Id. concluded in that case that “parties who hol d title to a shoreline easement, fee ownership, and did not require possession. Id. a t 103. We further concluded that “ownership,” as used in RSA chapter 482 - A, was not limited to the meaning of the terms when the legislature did not see fit to do so,” we t hat these are broad definitions, but, because we “[saw] no reason . . . to limit to the dictionary definitions set forth above. Id. at 102 - 03. We acknowledged (emphasis added)). Because the statute did not define “ownership,” we looked privat e landowner - applicant. ’” Id. at 101 - 02 (quoting RSA 482 - A:11, II chapter, the department may require reasonable proof of ownership by a 482 - A:11, II, which provides that “‘ [b]efore granting a permit under this permit. Id. at 101. The landowners primarily based their argument on RSA permit to the easement holders because only fee owners could apply for a On appeal, the landowners argued that DES lacked the authority to issue the holders applied to DES for a permit to build the dock, which was granted. Id. frontage for whatev er purposes they may desire.” Id. at 100. The easement easement “shall have the right . . . to the exclusive use of said parcel of shore at 100. The easement at issue in Michele provided that the holders of the water adjacent to the shoreline property over which t hey had an easement. Id. In Michele, t he easement holders wished to install a seasonal dock in

case, RSA 482 - A:11, II (2013). Michele, 1 p. 6 68 N.H. at 101. case could be considered owners for the purposes of the statute at issue in that were presented with a similar question: whether th e easement holders in that title.” Id. These are the same definitions we looked to in Michele, where w e “ownership” as “the state, relation, or fact of being an owner: lawful claim or International Dictionary 1612 (unabridged ed. 2002). Relatedly, it defines the legal or rightful title whether the possessor or not.” Webster’s Third New Webster’s Third New International Dictionary defines “owner” as “one that has dicti onary for guidance.” Michele, 168 N.H. at 102 (quotation omitted). a term is not defined in the statute, we look to its common usage, using the The legislature did not define the term “owner.” See RSA 482:2 (2013). “When repair the dam so that it shall not become a dam in disrepair.” RSA 482:11 - a. RSA 482:11 - a provides that “[t]he owner of a dam shal l maintain and 6

Company] . . . to maintain the [levee] on the northerly bank of said East agreed “to assume and discharge the obligations of the [Franconia Paper under a different name, did transfer fee ownership, the new owner explicitly States. Further, in 1971, when the Franconia Paper Company, then operating company in exchange for granting the access rights to the Town and the United REA re cites the restoration of the levee as the consideration received by the as a benefit conferred upon it by the United States and the Town. I ndeed, th e to retain ownership and control of the levee, and regarded the levee restoration other party, but it did not do so. Rather, the Franconia Paper Company chose ownership — with its attendant rights and obligations — to the Town or any In 19 p. 6 60, t he Franconia Paper Company had the capacity to transfer fee

interfere with those it had granted to the Town and the United States. United States, reserv ing for the owner all other property rights that would not obligations on the Town; rather, it granted rights to both the Town and the to its proper maintenance and operation.” The REA did not place any “to enter upon said lands at any time to inspect the restored [levee] with a view The REA granted only limited rights to the Town and the United States

Town’s interest,” we disagree. Although DES contends that these obligations “are fully within the scope of the upon the Town additional ownership obligations under RSA chapter 482. REA. R ather, DES flip s the logic of Michele on its head in seeking to impos e and protect its citizens and property; it already holds those rights under the Town is not seeking rights that are reasonably necessary to enjoy its easement their easement. See id. at 103. Here, that crucial logical link is absent — the was reasonably necessary for the easement holders to enjoy the full scope of Michele, it was crucial to our analysis that the right to apply for a dock permit ownership obligations of RSA 482:11 - a should be imposed upon the Town. In Nor doe s the rationale of Michele support the argument that the

the Town is an “owner” within the meaning of RSA 482:11 - a. distinguishable from Michele, and do not lend support to the argument that ownership and control over the levee. A ccordingly, the facts of this case are case is both limited and non - exclusive — the fee owner specifically retained incidental benefits and burdens. In contrast, the easement at issue in this exclusive rights that are tantamount to fee ownership — with all of its desire.” Michele, 1 p. 6 68 N.H. at 100. The expansive easement in Michele granted easement holders “exclusive use” of the land “for whatever purposes they may p roper maintenance and operation,” whereas the Michele easement gave the upon [the] lands at any time to inspect the restored [levee] with a view to its the REA, t he Town and the United States have only a limited right “to enter Here, the easement is non - exclusive and far narrower in scope. Under

interest to obtain a do ck permit under RSA chapter 482 - A.” Id. at 104. of the. . . easement,” the ease ment holders “[had] a sufficient ownership p. 7 7

Assurance to support its statutory argument. argument, explicitly disclaims that it is seeking to do so. Rather, DES is using the terms of the Assurance — an agreement to which DES is not a party. However, DES, in its brief and at oral T he Town contends that DES is impermissibly asking the Court to enfo rce the terms of the 1

easement, thereby altering the balance of property rights between the Town empower DES to impose new ownership obligations on the holder of a limited at 103. In essence, the dissent would allow a broad statutory purpose to easement holders from what it was under the common law.” Michele, 168 N.H. 482:11 - a is “to change the balance of property rights between fee owners and observe, as we did in Michele, that there is no evidence that the purpose of RSA word “owner” under the statute. See RSA 482:1 (2013). However, we must flood damage and enhance public safety, supports a broad construction of the N onetheless, the dissent argues that the statutory purpose, to lessen

contractor”); RSA 482:9 (2013) (using the term “person”). how to do so. See, e.g., RSA 482:11, I (2013) (us ing the terms “owner or obligations of RSA 482:11 - a on a broader class of persons or entities, it knew only to “[t]he owner” of a dam. I f the legislature had intended to place the seeking a wetlands permit, the statute at issue here, RSA 482:11 - a, applies statute at issue in Michele, which applies to “a private landowner - applicant” regulatory regime than is at issue in this case. Unlike RSA 482 - A:11, II, the Michele is also distinguishable because it involved a different statute and

obligations of ownership on the Town. Corps, the rationale in Michele does not support imposing the additional under the REA, and the Town’s limited contractual agreement with the Army “[t]he owner.” RSA 482:11 - a. Thus, give n the Town’s limited property interest and operate the levee in accordance with state regulation s applicable only to The Town did not assume ownership of the levee, nor did it agree to maintain levee “in accordance with regulations prescribed by the Secretary of the Army.” interest, t he To wn agreed with the Army Corps to maintain and operate the the Assurance, a contract that, by its terms, does not convey a property “ownership” under RSA 482:11 - a can or should be imposed upon the Town. In obligations in the A ssurance does not mean that the additional obli gations of repair.” However, the fact that the Town undertook certain maintenance 1 Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and In support of its position, DES contend s that, in the Assurance, the

surrounding circumstances at the time the easement was granted). the scope of an easement, we consider the parties’ intent in light of the Town of Rye, 150 N.H. 694, p. 7 703 (2004) (observing that, in order to determine obligation of ongoing levee repair and maintenance to the Town. See Arcidi v. understand or intend that, simply by entering into the REA, it had shifted the Engineers.” Thus, it is evident that the Franconia Pap er Company did not Branch as constructed by and under the supervision of the United States Army p. 8 8

The dissent protests our rejection of the “series of transactions” argument. However, in an effort 2 appears to rest solely upon Michele, which we have already distinguished. 2 of RSA 4 p. 8 82:11 - a. Absent such authority, the “series of transactions” argument the REA and the 1971 d eed, are sufficient t o establish ownership for purposes forth in the Assurance, when combined with the rights granted to th e Town in other legal authority to support the notion that the contractual obligations set meaning of RSA 482:11 - a. However, DES provides us with no case, statute, or sufficient ownership interest in the levee to be deemed an “owner” within the namely the As surance, the REA, and the 1971 d eed, the Town acquired a by DES necessarily fails. DES argues that through a “series of transactions,” the outcome in this case. For the same reason s, a related argument ad vanced For these reasons, we agree with the Town that Michele does not control

“[t]he owner” under RSA 4 p. 8 82:11 - a. lend support to the argument that the Town’s limited access right s make it regulatory regime at issue here are distinguishable from Michele, and do not maintenance and operation.” (Emphasis added.) Thus, the statute and [the] lands at any time to inspect the restored [levee] with a view to its proper to the Town, as the y fall outside the scope of the Town ’s right “to enter upon Admin. R., Env - Wr 302.04 (a). Neither of these options appears to be available owner may” either “[r] emove the dam,” or “[b] reach or modify the dam.” N.H. regulations states that “[i] n lieu of repairing or reconstructing a dam . . . the is not sufficient to be deemed “[t]he owner.” For example, one of the the regulations under RSA chapter 482 imply that the Town’s property interest Town’s easement gives rise to “ownership” under RSA chapter 482. Moreover, different levels of ownership, and therefore do not support the position that the Here, the regulations promulgated under RSA chapter 482 do not contemplate have a lesser ownership interest.” Michele, 168 N.H. at 104 (emphasis added). fee owner; applicants for minor projects, like the [easement holders ’] dock, may regulations contemplated that “only applicants for major projects need be the DES under RSA chapter 482 - A were consistent with our holding because the Moreover, i n Michele, we observed that the regulations promulgated by

that “[w] e interpret legislative intent from the statute as written”). on “[t]he owner.” RSA 4 p. 8 82:11 - a; see also Carrier, 165 N.H. at 721 (observing specific language chosen by the legislature, which places these obl igations only believe it would be error to allow the broad statutory purpose to override the Therefore, a bsent evidence that the legislature intended such a result, we that “l iberal construction does not permit a court to rewrite the statute”). see also Adoption of T.K.J., p. 9 931 P.2d 488, 492 (Colo. App. 1996) (observing (quoting Rodriguez v. United States, 480 U.S. 522, 526 (1987) (per curiam)); primary objective must be the law.’” State v. Dor, 165 N.H. 198, 205 (2013) legislative intent simplistically to assume that whatever furthers the statute’s liability. We have cautioned before that “‘it frustrates rather than effectuates and the fee owner(s) — to say nothing of the potential impact on landowner 9

discharge the Franconia Paper Company’s obligation to maintain the levee. over the leve e in the REA, and that, in the 1 p. 9 971 deed, its successor agreed to assume and into account the fact that the Franconia Paper Company explicitly retained ownership and control surrounding the granting of the access easement. I t focuses on two documents, failing to take considered. We agree. T he dissent none theless fails to consider all of the circumstances the scope of an easement, all of the documents and surrounding circumstances should be uncontested proposition — in fact, one already embraced by the majority — that, in determining to bolster its position, the dissent cites authority that actually support s a different and

863 (1 p. 9 980). the legislature.” Smith Ins urance, Inc. v. Grievance Comm ittee, 120 N.H. 856, statute is not for us to decide. Nor may we sub stitute our judgment for that of 165 N.H. at 721. “The wisdom, effectiveness, and economic desirability of a judgment, and we must interpret the language that it enacted. See Carrier, a limited right of access. W e conclude that it did not. The legislature made a did impose the obligations of “ownership” on an entity, such as the Town, with impose these obligations upon the Town, but r ather, whether the legislature not whether we think it would be reasonable or fair for the legislature to result of the vote of the Town’s residents.” However, the question before us is the levee was “restored for the benefit of the public using public monies as a reasonable” to impose the obligations of RSA 482: 11 - a upon the Town because T he dissent nonetheless concludes that it is “eminently fair and

the Town “owns” an easement, it does not “own” the l evee. ownership interest to deem it “[t]he owner” under RSA 482:11 - a. Simply put, 100. Th us, in contrast to Michele, the Town’s “single stick” is not a sufficient transferred those rights to the easement holders. See Michele, 168 N.H. at retained no rights of use or control over the lakefront property, having holders in Michele held nearly all of the sticks in the bundle — the fee owners the Town holds but one stick out of the bundle. By compar ison, the easement law school metaphor of a “bundle of sticks” representing property rights, here Moreover, all easements are not created equal. To employ the traditional

are non - binding dicta). Estate of Norton, 135 N.H. 62, 64 (1 p. 9 991) (observing that none ssential remarks Michele, is therefore dicta, and it does not control the outcome here. See In re proposition relied on by the dissent was not essential to the outcome in confined to the question and fac ts presented in that case. The broader 482 - A.” Id. at p. 10 104 (emphasis added). The holding in Michele is necessarily had “a sufficient ownership interest to obtain a dock permit under RSA chapter scope of t he exclusive rights conferred by the easement, the easement holders Michele, 168 N.H. at 105. However, the holding of Michele was that, given the person who holds an easement interest in property is an ‘owner’ thereof.” outcome of this case, and relies on Michele for the broad proposition that “a Despite these distinctions, t he dissent contends that Michele control s the 10

Dictionary 1612 (unabridged ed. 2002); Michele, 168 N.H. at p. 10 102 - 03. The title whether the possessor or not.” Webster’s Third New International International Dictionary defines “owner” as “one that has the legal or rightful dictionary for guidance. Id. at 102. The court noted that Webster’s Third New defined by the legislature, the court looked to its common usage, using the 482 - A:11, II (2013). Michele, 168 N.H. at 101. Because the term was not considered “owners” for the purposes of the statute at issue in that case, RSA similar question: whether the easement holders in that case could be In Appeal of Michele, 168 N.H. 98 (2015), the court was presented with a

obligating the Town to maintain and repair the dam pursuant to RSA 482:11 - a. Water Council erred in ruling that “owner” includes the Town, thereby in disrepair.” RSA 482:11 - a (2013). Rather, the parties dispute whether the of a dam shall maintain and repair the dam so that it shall not become a dam within the meaning of RSA 482:11 - a, which provides in part that “[t]he owner the dike. No party disputes that the dike in this case constitutes a “dam” maintenance and o peration.” Thereafter, the Army Corps of Engineers restored lands at any time to inspect the restored dike with a view to its proper any nature necessary in the restoration of the dike, and to enter upon said States the “right to enter upon the . . . lands to perform construction work of Right - of - Entry Agreement with the fee owner that granted it and t he United prescribed by the Secretary of the Army.” In addition, the Town entered into a and operate all the works after completion in accordance with regulations States Army Corps of Engineers obligating the Town to, inter alia, “[m]aintain project, the selectmen executed an Assurance Agreement with the United interests for said project.” In order to secure federal funding for the restoration at issue in this case, a nd to authorize the selectmen to “acquire any real estate proposed local protection project for the Restoration of the Flood Control Dike” 1960, the residents of the Town of Lincoln (Town) voted to approve “the LYNN, C.J., and DONOVAN, J., dissenting. At town meeting in March

DON OVAN, J.