2025 N.H. 38, Taylor Community v. City of Laconia

p. 3 3

interest justifies taking the land without the landowner’s consent, occasion for laying out the road. If, on the other hand, the p ublic affected landowner outweigh the public interest, there is no against the rights of the affected landowner. If the rights of the First, the court must balance the public interest in the layout

occasion for laying out a road exists: two - step process for a trial court to undertake when assessing whether involves an equitable balancing of competing interests. Id. We have outlined a town ’ s acceptance of the roads. Crowley, 162 N.H. at 77 p. 3 3. Assessing occasion Occasion for the layout of public roads exists if the public interest requires the to do so. RSA 231:8; Crowley v. Town of Loudon, 162 N.H. 768, 773 (2011). [¶9] U pon petition, a town will lay out roads when there is an “occasion”

(Supp. 2 024). acceptance. Hersh v. Plonski, 156 N.H. 511, 5 14 - 15 (2007); see RSA 229:1 twenty years of use by the public before 1968; or (4) by dedication and authority; (2) through the construction of a road on public land; ( p. 3 3) through eminent domain and the laying out of a highway by some governmental highway. A public highway may be created: (1) through the taking of land by concluding that there was occasion to lay out the cul - de - sac as a public [¶8] On appeal, the plaintiff argues that the trial court erred in

We review the trial court ’ s application of the law to the facts de novo. Id. matter of law. Tremblay v. Bald, 176 N.H. 4 p. 3 39, 442 (2024), 2024 N.H. 6, ¶8. exists, we determine whether the moving party is e ntitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we consider the evidence in the light most favorable to each party in 491:8 - a, III (2010). When reviewing rulings on cross - motions for summary and that the moving party is entitled to judgment as a matter of law.” RSA the affidavits filed, show that there is no genuine issue as to any material fact depositions, answers to interrogatories, and admissions on file, together with [¶7] A moving party is entitled to summary judgment “if the pleadings,

outweighed the burden on the City. This appeal followed. of the occasion analysis — the public interest in laying out a highway own purposes.” The trial court also concluded that — under the second prong sac, the plaintiff did not retain the right “to use th e dedicated property for its trial court clarified that, while the plaintiff retained a fee interest in the cul - de - [¶6] The plaintiff moved for reconsideration. Upon reconsideration, t he

the plaintiff’s private interest in the cul - de - sac. therefore ruled that the public interest in laying out the highway outweighed — the dedication left the plaintiff with “no rights” in the cul - de - sac, and p. 4 4

permanently vested right to accept the dedicated road and that a public “right See i d. In reaching that conclusion, we determined that the public ha d a entitled to damages when public authorities subsequently laid out the road. because the appellants had dedicated the road to public use, they were not Harrington v. Manchester, 76 N.H. 3 p. 4 47, 3 4 8 - 51 (1912). We concluded that, damages after the ir dedicated road was laid out as a public highway. question. In Harrington, w e considered whether the appellants w ere entitled to [¶12] We find Harrington v. Manchester instructive in answering this

landowner’s property interest. occasion analysis. Thus, we address what impact a dedication has on a private diminished rights in the cul - de - sac, which caused it to fail prong one of the concluded that the unreleased offer of dedication left the plaintiff with dedication and acceptance. See id. However, the trial court nonetheless this ruling on appeal. A public highway was therefore not created through that the cul - de - sac was dedicated but not accepted. T he parties do not dispute accepted by the public. See i d. at 5 15 - 16. In this case, the trial court ruled public use. Id. at 515. A public highway is created once a dedicated road is intention that it shall be accepted and used presently or in the future for such a public use by an unequivocal act of the owner of the fee manifesting an created. See Hersh, 156 N.H. at 51 p. 4 4 - 1 5. Dedication is the devotion of land to separate from laying out a public highway, by which a public highway can be [¶11] As noted above, d edication and acceptance is another method,

offer of dedication. The trial court’s conclusion was not erroneous. right to accept and use the cul - de - sac because it is subject to an unreleased concluding that the plaintiff ’s right to use the property is limited by the public lacks the right to use the dedicated property “for its own purposes” — as ruling otherwise. We construe the trial court’s order — ruling that the plaintiff use the dedicated cul - de - sac, and we do not construe the trial court’s order as its own purposes. The parties do not dispute that the plaintiff has a right to sac for public use, the plaintiff did not retain the right to use the property for erred when it concluded that, because the plaintiff had dedicated the cul - de prong of the occasion analysis. Specifically, t he plaintiff asserts that the court [¶10] T he plaintiff argues that the trial court erred in applying the first

A. Prong One

appropriateness, of laying out a road as requested. See id. de novo analysis to make an independent determination of the occasion, or Id. (citations, quotations, and ellipses omitted). The superior court conducts a

public interest, occasion for the layout exists. the town. If the balancing required by the second step favors the the public interest in the layout against the burden imposed upon then the court must engage in a second step, which is to balance p. 5 5

argues that our conclusion regarding the scope of a private landowner’s rights [¶16] Finally, we address the plaintiff’s policy argument. The plaintiff

evidence an d not legally erroneous. outweigh ed it. W e conclude that the trial court’s ruling was compelled by the encumbered by its dedicated state that “even a scant public interest” The court concluded that the plaintiff’s private interest in the cul - de - sac was so plaintiff lost the right to use the dedicated property for its exclusive purposes. As for the plaintiff’s private interest, the court c orrectly concluded that the interest in using the cul - de - sac for travel and to accommodate public services. court noted, and the record establishes, that the public has a demonstrated interest in the cul - de - sac against the plaintiff’s private interest in it. The trial [¶1 p. 5 5] Applying the prong one analysis, the trial court balanced the public

de - sac and use it f or travel. any way that would interfere with the public right to accept the dedicated cul petition for release of the dedication, but lacks the ability to use the property in remains open, the plaintiff retains ownership of the fee and the ability to with the public convenience”). Accordingly, while the offer of dedication travel, and [the landowne r] may use the land in any manner no t inconsistent and freehold belong to the land - owner, subject only to the public easement for “right to use [the land] as a public way” over private land means that “[t]he soil interfere with the publi c interest. See id. (explaining that a public easement or the land, but that landowner may not use that land in any way that would a public easement for travel, a private landowner may retain a fee interest in See Hartford v. Gilmanton, 101 N.H. 424, 426 (19 p. 5 58). When land is subject to land as a way, or for any use reasonably incidental to the purpose of traveling. [¶14] A public easement for travel grants the public the right to use the

02. cost at any time. See Harrington, 76 N.H. at 348 - p. 5 51; Polizzo, 126 N.H. at 401 cul - de - sac and the public has a vested right to accept the cul - de - sac without dedication. Accordingly, there currently is a public easement for travel over the at 401 - 02. In this case, there was no release of the plaintiff’s offer of public highway, or released. See Hersh, 156 N.H. at 514 - 1 6; Po lizzo, 126 N.H. offer of dedic ation remains open until it has been accepted, thereby creating a the governing body of a city or town pursuant to RSA 231:51. Nonetheless, an dedication pursuant to RSA 231:52 or a dedication may be released by vote of Under certain circumstances, a landowner may now petition for release of a permanent right to accept a dedicated road. See RSA 231:51 -: 52 (2009). [¶13] After Harrington, the legislature limited by statute the public’s

permanently vested right in the town to accept the street”). (198 p. 5 5) (describing Harrington as holding “that an offer of dedication created a of dedication. See i d.; see also Polizzo v. Town of Hampton, 12 p. 6 6 N.H. 398, 402 of passage” over the street, or “easement,” vested over the road at the moment 6

services to the approximately 30 residents on Co ttonwood Avenue.” efficient traffic route for City vehicles providing emergency and other public City’s interest in the cul - de - sac is clear in that it affords the most safe and the City’s maintenance of the cul de sac between 1987 and 2021”; and (2) “the only minimal additional yearly costs for maintaining the road, as evidenced by court were erroneous: (1) “[l]aying out the cul de sac will cause the City to incur Specifically, t he plaintiff argues that the following determinations by the trial improper inferences and relied on fact s not supported by the record. Crowley, 1 p. 6 62 N.H. at 773. The plaintiff argues that the trial court drew interest in the layout against the burden it imposes up on the City. See second prong of the “occasion” test. Th is prong requires balancing the public [¶18] T he plaintiff next argues that the trial court erred in applying the

B. Prong Two

188 (2025), 2025 N.H. 3, ¶31 (per curiam). fit within constitutional bounds. See Attorney General v. Hood, 177 N.H. 17 p. 6 6, the legislature disagrees with our holding, it is free to amend the law as it sees judicial review of decisions in that regard. See RSA 231:8, :52. Of course, i f methods to seek release of or compel acceptance of dedicated land, and for our reasoning because the statutory scheme provides landowners with N.H. at 773. Accordingly, the plaintiff’s policy arguments do not undermine would likely succeed under the “occasion” balancing test. Cf. Crowley, 162 accommodation of public travel,” RSA 231:52 (emphasis added), the landowner highway, if the landowner is the petitioner and the road is “needed for the “occasion” to do so. In determining whether there is “occasion” to lay out a landowner could petition to lay out a highway pursuant to RSA 231:8 if there is road is “needed for the accommodation of public travel,” RSA 231:52, then the public travel within 20 years). Alternatively, should it be determined that the release dedicated land by vote if it has not been opened, built, or used for see also RSA 231:51 (providing that the governing body of a city or town may the decision, as in the case of petitions for laying out highways.” RSA 231:52; of highways, and any interested party may appeal to the superior court from “All proceedings shall be conducted in the manner provided for the laying out whenever “such way will not be needed for the accommodation of public travel.” public use may petition for release of that dedication pursuant to RSA 231:52 [¶17] As explained above, a landowner who has dedicated a road for

scheme addresses the plaintiff’s concern. highway without any liability that comes with acceptance. The statutory because a municipality would immediately reap the benefit of a dedicated disincentivized from dedicating land and municipalities from accepting it easement vests at the time of dedication, then landowners would be in dedicated but unaccepted land cannot be correct because, if a public p. 7 7

DONOVAN and COUNTWAY, JJ., concurred.

Ct. R. 25(8). warrant further discussion. See Vogel v. Vogel, 13 p. 7 7 N.H. 321, 322 (1993); Sup. considered the plaintiff’s remaining arguments and conclude that they do not [¶22] Accordingly, we conclude that the trial court did not err. We have

those competing interests. trial court correctly conclud ed that the public interest in the layout outweighed landowner and the burden on the municipality. See id. (emphasis added). The whether the public interest in the layout outweighs the interests of the affected the occasion balancing test, but the ultimate question before the trial court is have enumerated certain factors that “the trial court may consider” in applying in the layout against the private landowner’s and municipality’s interests. We the factors that we have created to assist courts in weighing the public interest [¶21] The plaintiff also argues that the trial court erred by not applying

accepting it. See id. public interest in the cul - de - sac outweighs the municipality’s burden in that conclusion. Accordingly, the trial court correctly concluded that the approximately 30 residents of Cottonwood Avenue, and the record confirms and efficient traffic route for emergency and public services which serve the accepting it. See id. The trial court ruled that the cul - de - sac provides a safe interest in the cul - de - sac that outweighs the burden on the municipality in of the second prong, the trial court had to determine whether the public has an safety and efficiency of a hammerhead versus a cul - de - sac. For the purposes could serve the same purposes. W hat is at issue in this case is not the relative traffic route for public vehicles, and asserts that the proposed hammerhead erred when it concluded that the cul - de - sac provides the most safe and efficient [¶20] Regarding the second point, the plaintiff argues that the trial court

the plaintiff cites nothing showing otherwise. that the a dditional cost for the City to maintain the cul - de - sac is minimal, and previously maintained the cul - de - sac for 32 years. These facts demonstrate at the end of a public road which the City maintains, and that the City The record establishes that the cul - de - sac is approximately 0.42 acres, situated municipality in accepting the cul - de - sac, not the exact cost. See id. at p. 7 773 - 74. point the trial court was required to consider was the burden on the 34 years instead of 32 years constitutes reversible error. Second, t he principal that the trial court ’ s misstatement that the City maintained the cul - de - sac for actual yearly cost of maintaining the cul - de - sac. First, we decline to conclude 2019, not 2021, and because there was no evidence in the record regarding the determination was err or because the City ceased maintaining the cul - de - sac in [¶19] Regarding the first point, the plaintiff argues that the trial court’s