Opinion
03-E-0061 (N.H. 8-10-2007).
August 10, 2007.
NOTICE OF DECISION
RACHEL A HAMPE ESQ
MCLANE GRAF RAULERSON MIDDLETON
PO BOX 326
MANCHESTER NH 03105-0326
Please be advised that on 8/10/2007 Judge Fitzgerald made the following order relative to:
Order on Merits; Order Made
cc: Randall F. Cooper, Esquire
ORDER
On March 12 through 15, 2007, the court held a bench trial on the consolidated matters 03-E-061, 03-E-114, 03-E-144, and 05-E-014. The matters each arise from a dispute between Samuel Bourne, Trustee of Bedrock Realty Trust ("the petitioner") and the Town of Madison ("the Town") as to whether the Town may allow snowmobile and other vehicle use over the petitioner's property ("the Bourne property"). The petitioner argues the Town has no right or interest in his property to allow these activities. The Town claims it may allow the public to use snowmobiles and recreational vehicles on the Bourne property by way of a class VI road, known as Solomon Harmon Road, obtained by prescription and/or laid out by the Town, and an easement, known as the Kelsey Easement, obtained by the Town from the petitioner's predecessors-in-interest.
In 03-E-061 (filed 05/29/03), the petitioner requests relocation and widening of the disputed class VI road. In 03-E-114 (filed 09/23/03), the petitioner requests removal of the disputed road's class VI status. In 03-E-144 (filed 11/24/03), the petitioner seeks injunctive relief prohibiting the Town from allowing snowmobile or mechanized vehicle use on his property. The Town cross-petitions for declaratory judgment as to the Town's rights and interests in the disputed class VI road and under the Kelsey Easement. In 05-E-014 (filed 02/24/05), the petitioner appeals the decision of the Board of Selectmen ("the Selectmen") of the Town to layout the disputed road as a class VI road. The petitioner seeks injunctive relief and attorneys' fees, arguing there was no occasion to lay out the road and the Town acted in bad faith by laying out the road in order to circumvent the pending litigation with the petitioner. After review of the parties' arguments, the evidence, and the applicable law, the court finds and rules as follows.
I. The Kelsey Easement
The petitioner acquired the Bourne property from Raymond and Heather Giandrea on September 20, 2002 ("the Bourne property"). (Pet'r's Ex. 1). The petitioner's predecessors-in-interest, Patrick and Patricia Kelsey ("the Kelseys"), owned the Bourne property in 1979. (Pet'r's Ex.s 3 4). At that time, the Kelseys conveyed a right-of-way, the Kelsey Easement, over the Bourne property to the Town. (Pet'r's Ex. 4). The petitioner purchased the Bourne property subject to the Kelsey Easement. (Pet'r's Ex. 1). Prior to conveying the Kelsey Easement to the Town, in 1976 Malcolm P. McNair ("McNair"), the owner of property adjacent to the Bourne property, conveyed a conservation easement to the Town over his property ("the McNair Easement") pursuant to a conservation agreement ("the Conservation Agreement"). (Resp't's Ex. A). The deed conveying the Kelsey Easement to the Town ("the Kelsey Deed") references the Conservation Agreement for purposes of describing certain activities that are allowed on the Kelsey Easement. (Pet'r's Ex. 4).
The petitioner argues that the Kelsey Deed, read in conjunction with the Conservation Agreement, does not allow snowmobile or other motor vehicle use on the Kelsey Easement, The Town argues the Kelsey Deed, read in conjunction with the Conservation Agreement, allows for snowmobile use.
"The proper interpretation of a contract, such as a deed, is a question of law for [the] court." Motion Motors Inc. v. Berwick, 150 N.H. 771, 775 (2004). "When the language of the deed is clear and unambiguous, we will interpret the intended meaning from the deed itself without resort to extrinsic evidence." Id. Where the deed references another agreement, "[w]e also look to the language of the referenced. . . . agreement[]. In interpreting a multiple-document agreement, we seek to harmonize and give effect to the provisions of the various documents so that none will be rendered meaningless."Id. at 777.
The Kelsey Deed describes the easement and its restrictions as follows:
Said right-of-way shall be a width consistent with the use of logging trucks, with the center line of the same to be the center of the existing old woods roadway as now located and constructed on the face of the earth as it roughly bisects the property above described in a north/south direction, running from a gap in a stone wall on the northerly side line of the property of George A and Gunilla B. James, a distance of 1800 feet, more or less, to a gap in the stone wall on the northerly side line of land of Malcolm P. McNair, Jr.
The grantee, in consideration of this conveyance, agrees and covenants with the grantors, their heirs and assigns, to restrict the use of the right-of-way granted herein to a use consistent in discharging the responsibilities of the grantee under a Conservation Agreement between said grantee and Malcolm P. McNair, dated December 26, 1976, and recorded at Book 648, Pages 199 and 210, Carroll County Registry of Deeds. . . . [F]urther said grantee, by its Conservation Commission, or its successors, will open said right-of-way to public use consistent with said Agreement as restricted for the purpose of:
Hunting, fishing, and trapping in accordance with the applicable laws and regulations.
Hiking.
Snowshoeing.
Cross-country skiing.
Horseback riding.
Other recreational or sporting uses which the Conservation Commission of the Town of Madison, New Hampshire or its successors, determines to be within the general purpose of the Agreement.
As further required and restricted in said Agreement, the grantee, however, by its Conservation Commission, or its successors, will restrict the use of motor vehicles of any type to the following exceptions only:
The use of motor vehicles at any time by fire fighters, personnel of the Fish and Game Department, and law enforcement officers in the course of their duties.
The use of motor vehicles by the parties to the Conservation Agreement as restricted and permitted therein. The use of motor vehicles by the grantors herein, and their authorized agents.
(Pet'r's Ex. 4) (emphasis added).
The Conservation Agreement between the Town and McNair provides that the McNair Easement is conveyed to the Town subject to several restrictions on use. Specifically, with respect to motor vehicles, including snowmobiles, the Conservation Agreement provides:
The use of motor vehicles of any type will not be permitted on the property with the following exceptions:
1. Skimobiles may be used on existing skimobile trials, but no new trails are to be constructed
2. Motor vehicles may be used on the short road just north of Durgin Pond in Parcel One; that road constitutes lawful access to this pond;
3. The use of motor vehicles on any road designated or which may be designated a Class Six highway, where such use for each said road shall be subject to particular regulations established by the said Conservation Commission of the Town of Madison, or its successors.
4. The use of motor vehicles at any time by fire fighters, personnel of the Fish and Game Department, and law enforcement officers in the course of their duties.
5. The use of motor vehicles by the grantee in order to inspect the property as permitted below.
(Resp't's Ex. A Conservation Agreement § 1(B)). With respect to activities permitted, the Conservation Agreement further provides:
The following recreational and sporting uses will be permitted on the property:
1. Hunting, fishing and trapping in accordance with the applicable laws and regulations.
2. Hiking.
3. Snowshoeing.
4. Cross-country skiing.
5. Horseback riding.
6. Other recreational or sporting uses the Conservation Commission of the Town of Madison, or its successors, determines to be within the general purposes of this agreement.
(Id. at § 1(E)).
The court finds resort to extrinsic evidence for purposes of interpreting the Kelsey Deed and the Conservation Agreement is not necessary as the language of the agreements is unambiguous. Under the above quoted provisions of the Kelsey Deed and the Conservation Agreement, the Town may not allow snowmobile use by the public on the Kelsey Easement.
The Kelsey Deed explicitly prohibits snowmobile use by the public. The Kelsey Deed allows the grantee (the Town) to use the Kelsey Easement for purposes of discharging the Town's stewardship responsibilities for the McNair Easement pursuant to the Conservation Agreement. (Pet'r's Ex. 4). With respect to allowing the public to use the Kelsey Easement, the language of the Kelsey Deed restricts the public use to six enumerated activities, which do not include snowmobile or other motor vehicle use. (Id.).
The Kelsey Deed goes on to state that "use of motor vehicles of any type" is restricted to three narrow circumstances "only." (Id.). None of these three circumstances includes motor vehicle use, including snowmobile use, by the public. (Id.). These restrictions on motor vehicle use modify the public uses allowed by the Kelsey Deed, including the provision to allow "[o]ther recreational or sporting uses which the Conservation Commission of the Town of Madison, New Hampshire or its successors, determines to be within the general purpose of the Agreement." (Id.). This provision for "other recreational or sporting uses" therefore does not include the possibility of allowing snowmobile or other motor vehicle use by the public. The scope of the Kelsey Easement therefore does not include snowmobile or other motor vehicle use by the public.
As to the location of the Kelsey Easement, the petitioner seeks to have the court order the easement moved to the perimeter of his property. The petitioner argues this would be a more convenient location for both himself and the public. The location of the Kelsey Easement is set forth unambiguously in the Kelsey Deed. The deed explicitly expresses the parties' intent as to location, stating the Kelsey Easement bisects the Bourne property. (Pet `r's Ex. 4). There is no evidence before the court that the parties intended otherwise. The court is therefore without authority to reform the deed. See 66 AM.JUR.2D Reformation of Instruments § 1 (2001) (in reforming an instrument the court revises a writing to express the parties' prior intent).
II. Class VI Road by Prescription
The parties dispute whether a class VI road exists beginning on East Madison Road and extending approximately half way through the Bourne property to the approximate location of his cabin. (Resp't's Ex. I). Bourne currently has an easement for a driveway extending from East Madison Road to his property. (Pet'r's Ex. 1). The Town alleges Solomon Harmon Road exists in the same location as Bourne's easement as a public highway by prescriptive use because there is evidence that Solomon Harmon and his family used the road from 1826 to 1858. The Town alleges the ruins of the Solomon Harmon homestead are located near and/or underneath Bourne's current cabin on the Bourne property. Id.
The Town argues that, by necessity, Solomon Harmon, his family, and visitors must have crossed Solomon Harmon's property and the property between Solomon Harmon's property and East Madison Road for ingress and egress to the Solomon Harmon homestead. The Town also argues there is specific evidence that Solomon Harmon Road was maintained as a Town road in 1848. The Town argues the evidence shows the Solomon Harmon Road ran in a straight path from East Madison Road, through an opening in a stone wall, and onto the Bourne property.
"Public highways" are defined in RSA 229:1 and classified in RSA 229:5. Under RSA 229:1, there are four ways a public highway may be created. One possibility is through prescriptive use. Specifically, prescriptive roads are "roads which have been used as such for public travel, other than travel to and from a toll bridge or ferry, for 20 years prior to January 1, 1968, and shall include the bridges thereon." RSA 229:1 (1993); Mahoney v. Town of Canterbury, 150 N.H. 148, 150 (2003). "Whether a highway is created by prescription is a finding of fact." Mahoney, 150 N.H. at 150.
"Class VI highways shall consist of all other existing public ways, and shall include all highways discontinued as open highways and made subject to gates and bars, except as provided in paragraph III-a, and all highways which have not been maintained and repaired by the town in suitable condition for travel thereon for 5 successive years or more except as restricted by RSA 231:3, II." RSA 229:5, VII.
The claimant, in this case the Town, "has the burden of proving by a balance of the probabilities that the public used [the way] for twenty years prior to 1968 under a claim of right without the owner's permission," Id. at 151. "Once the claimant satisfies the initial burden of production concerning public use, the burden then shifts to the landowner to produce evidence that the public use was, in fact, permitted." Id. "The burden of persuasion, however, remains with the claimant." Id.
"[T]he inclusion of a road on a map is competent evidence to support the inference of use of the road." Id. With respect to continuity of use of the road for twenty years, "[i]ntermittent and irregular use may be considered continuous when not interrupted by assertion of any paramount right." Id.
The Town submitted the testimony of Robert D. King ("King"), who testified as follows. King lives in Madison, New Hampshire. On March 10, 1998, the Town voted to establish a committee "to develop a comprehensive and documented list of Class VI roads. . . ." (Town's Ex. NN Minutes of Madison Town Meeting March 10, 1998, Art. 24). King served on the Town's Class VI Road Study Committee ("the Committee") as a researcher and drafter of documents. On behalf of the Committee, King drafted a two page report on Solomon Harmon Road on November 18, 1999. (Town's Ex. 1). The report recommends the Town recognize on its tax map a roadway leading from East Madison Road to the ruins of the Solomon Harmon homestead, and that the road should be named the Solomon Harmon Road. (Id.).
Throughout King's testimony, the Town introduced the evidence King and the Committee relied on in making their determination that Solomon Harmon Road exists by prescriptive use. King gave substantial testimony as to his opinions regarding the existence and location of Solomon Harmon Road. In determining whether the Town has met its burden, the court accepts King's factual testimony and the exhibits submitted. The court does not, however, rely on King's opinions regarding the existence of Solomon Harmon Road because King is not an established expert in surveying or in land titles or map histories.
King testified he conducted walking tours of the Bourne property in search of evidence of the existence and location of Solomon Harmon Road. During his tours, King never located a cellar hole or rock foundation of a house on the Bourne property. King never consulted an expert surveyor or conducted a title search of the Bourne property in creating his report on Solomon Harmon Road.
The Town submitted two maps allegedly depicting Solomon Harmon Road. (Resp't's Ex.s ZZ WW). The first map, known as the Weston Map, is from 1976, and purports to be a map of all roads, cellar holes, and residents circa 1860. (Resp't's Ex. ZZ). The map purports to be a tracing of a previous map created by Herbert Weston. (Id.). The map shows what appears to be a road in the area of where Solomon Harmon's homestead would have been. (Id.). Specifically, there is a road arcing to the east and ending at a cellar hole, which is labeled as owned by Saul Harmon. (Id.). Herbert Weston, however, accompanied his map with written descriptions of the roads on it, and there is no description of what could be the Solomon Harmon Road. King also testified that he has made approximately twenty-two alterations to the Weston Map, including adding the Solomon Harmon Road as a "correction." Comparing what appears to be the original Weston Map with a map containing King's additions, it is clear that King added Solomon Harmon Road to the Weston Map as a straight line extending from East Madison Road. (Compare Town's Ex. ZZ with Town's Ex. QQ-B).
The second map, known as the Blister Rust Map, is from 1938. (Resp't's Ex. WW). There are two versions of the Blister Rust Map. (Id.). One version depicts a dotted line running from East Madison Road, which is shown as two straight lines, through what appears to be a stone wall, to a cellar hole on what could be the Bourne property, and then ending just to the west of the cellar hole. (Id.). The second version shows a dotted line running from East Madison Road and curving farther to the west, and passing a cellar hole. (Id.). There is no legend on either map stating what a dotted line means. (Id.). There are no other cellar holes indicated on or near the dotted line on either map. (Id.). The map does not indicate to whom the cellar hole belonged. (Id.).
The Town also submitted the following evidence that Solomon Harmon and his family lived on what is now the Bourne property. The book Soldiers of Eaton and Madison states Solomon Harmon and his wife were the parents of ten children and lived "on a road leading from the Harmon Hills Road between Madison and East Madison southwest towards Blaisdell Mountain and Bald Ledge." (Resp't's Ex. EEE LEON GERRY KEITH HENNEY, SOLDIERS OF EATON AND MADISON (1979)). Solomon Harmon was a highway surveyor for District 7 in the years 1856 through 1858, and he died of typhoid in 1859. (Resp't's Ex. NNN-3). A "resident inventory" from 1826 states that a "Solomon Harmon" owned fifty acres of "unimproved land" with no buildings. (Resp't's Ex. NNN-8). The "Inventory of Eaton for the year 1830" states a "Solomon Harmon" owned twenty-five acres of unimproved land and owned buildings. (Resp't's Ex. NNN-9). The 1844, 1852, and 1855 Town Inventories show a "Solomon Harmon" as owning fifty acres of land, along with buildings and livestock. (Resp't's Ex.s NNN-10-13). The 1859 Town Inventory shows a "Solomon Harmon" owning livestock, but no land. (Resp't's Ex. NNN-14). The Town's 1830 Highway Tax record shows a "Solomon Harmon" taxed in District 3. (Resp't's Ex. NNN-7). The Town also submits the description of the limits of the Town's Highway Districts for 1848, as set forth by the Selectmen for the Town at that time. (Resp't's Ex. TT). The list describes Highway District 3 as "[f]rom the main road easterly to (illegible's) land, also from said road to Solomon Harmon's[.]" (Id.).
The Town submitted a deed dated November 12, 1855, which states it is a conveyance from Reuben Harmon to Ammi Kennett of "a certain Piece of Land situated in Madison County and State [of New Hampshire] being the Easterly half of Lot numbered Eighty Four south division of Lots in said Madison and is the same now occupied by Solomon Harmon, containing fifty acres more or less with the Buildings thereon." (Resp't's Ex. UU). The Town also submitted a Plan of Eaton, which states it is "Based on Original Survey of James Hersey, 1782[;] US Geological Survey, 1930 Edition[;] Roads and Railroads added, 1962[.]" (Resp't's Ex. VV). The plan shows a lot numbered eighty-four in the southern area of Madison. (Id.).
In response to the Town's evidence, the petitioner presented the following evidence. The petitioner introduced the testimony of Stephan Nix ("Nix"), who is an attorney and licensed surveyor in New Hampshire, with substantial employment experience focusing on ancient roads and rights of way. The court accepts Nix as an expert in these areas.
Nix testified there is no evidence of a public highway existing as Solomon Harmon Road at any time. Nix found no map evidence of Solomon Harmon Road from the 1800s. Nix further found the only map evidence from the 1900s is the Blister Rust Map. Nix found, however, the dotted line on the Blister Rust Map indicates a foot path, not a highway. Nix also determined the Weston Map is not a valid source for determining the existence of Solomon Harmon Road since King admittedly altered the map to depict the road. Nix further testified Herbert Weston authored a written report to describe the roads on the Weston Map. Nix testified the narrative says nothing about a road that could be Solomon Harmon Road. (Pet'r's Ex. 64). Nix also located numerous maps from 1803 through 1958, which did not depict Solomon Harmon Road, but which likely would have depicted the road had it existed as a public highway. (Pet'r's Ex.s 46, 48, 49, 52, 53, 54, 56, 58, 61, 63).
Nix also reviewed documents produced by the Madison Historical Society in the early 1970s, in which the society sought to list and name local town roads. The documents show the Society located and named over two dozen roads. (Town's Ex.s MMM-1-MMM-5). There is no mention of a Solomon Harmon Road or a road in the location of the purported Solomon Harmon Road. (Id.).
Nix further testified that ancient pathways to previous private homes exist all over New Hampshire and are not considered public highways. Nix determined that if Solomon Harmon and his family lived on what is now the Bourne property, at the most one could only deduce from the evidence that they used a private path for ingress and egress to their home, not that a public highway existed from their home to East Madison Road.
Nix also performed a chain-of-title search for the Bourne property and the Cyr property, which is located between the Bourne property and East Madison Road, going back to the early 1800s. (Pet'r's Ex.s 1-37). In 1828, a parcel of land in Eaton, described as the easterly half of lot eighty-four in the south division was conveyed to Solomon Harmon. (Pet'r's Ex. 25). In 1850, the same parcel was conveyed to John Wood from Solomon Harmon. (Pet'r's Ex.s 23 24). In 1854, Wood conveyed the same property to Charles Harmon. (Pet'r's Ex. 22). The property was conveyed again in 1854 and twice in 1855, ultimately resulting in ownership by Ammi Kennett. (Pet'r's Ex.s 19-21). The second deed from 1854 and the two deeds from 1855, state that the land being sold is occupied by Solomon Harmon. (Id.). In 1860, Solomon Harmon's wife, Abigail Harmon, conveyed any right, title, or interest she had in the land to Ammi Kennett. (Pet'r's Ex. 18). The property is conveyed several more times between 1860 and 1978 when the Kelseys purchased the property. (Pet'r's Ex.s 6-17). Most of the deeds refer to the land as the Solomon Harmon farm. (Id.).
None of the deeds reference any road leading to or through the Bourne property until 1978 when a private right-of-way was granted to the Kelseys by George and Gunnilla James over the land falling between the Bourne property and Madison Road. (Pet'r's Ex. 5). The deed from the Jameses to the Kelseys describes the right-of-way as appurtenant to the Bourne property and states: "Said right of way shall be thirty (30) feet in width with the center line of the same to be the center line of the existing roadway as now located and constructed on the face of the earth, to the extent the same traverses over land of the Grantor." (Id.).
From the title searches, Nix determined that Bourne currently owns the same proprety that was previously owned or occupied by Solomon Harmon. Nix concluded, however, that the evidence does not support a finding of a public highway leading to and through the Bourne property, but instead indicates there may have been a private right-of-way by necessity for the previous owners of the Bourne property. Nix testified that ancient pathways to single homes exist all over New Hampshire, and that these pathways are not considered public highways. Nix testified there may have been a pathway by necessity to the Solomon Harmon homestead.
Patrick Kelsey ("Kelsey") also testified at trial. Kelsey testified that when he purchased the Bourne property in 1978 he had to cut a road so he could drive his truck onto the Bourne property through a hole in a stone fence. Kelsey testified he built the cottage on the property, and there was no cellar hole on the property at that time. Kelsey testified that when he purchased the Bourne property, he also purchased a right-of-way from the Jameses so he could access the Bourne property.
Based on this evidence, the court finds the Town has not met its burden to establish by a balance of the probabilities the existence of Solomon Harmon Road by prescription. There is no evidence of any road named the "Solomon Harmon Road" prior to 1968, or anytime before the Committee recommended the Town recognize and name the road. There is no evidence of any cellar hole existing anywhere on the Bourne property or on any other place along the purported location of Solomon Harmon Road. There are no deeds in the relevant time period referencing a road that could be Solomon Harmon Road. There are no written or oral histories mentioning what could be Solomon Harmon Road. Further, the only map evidence showing any route onto the Bourne property is the Blister Rust Map from 1938, which Nix has explained depicts a pathway, not a road. Moreover, there were numerous opportunities for Solomon Harmon Road to appear in maps or written histories, and it is never mentioned.
The fact that Solomon Harmon once owned or occupied the Bourne property as a land locked property is not sufficient evidence to prove a public highway by prescription. See Catalano v. Town of Windham, 133 N.H. 504, 510 (1990) ("plaintiffs who are lot owners, possessing an easement over [the disputed] roads, [are] required to prove that the `public' — not just the lot owners and their guests — used the roads for twenty years prior to 1968 under a claim of right without the owner's permission."); Mahoney, 150 N.H. at 151 (sufficient evidence where multiple maps and deeds referenced the road at issue and more than one homestead used the road).
Furthermore to the extent Solomon Harmon and his family previously occupied the Bourne property and traveled from East Madison Road onto the Bourne property, there is no possible adverse use on Bourne's property based on this conduct because Solomon Harmon and his family were at all times the true owners or permitted occupiers of the land. Finally, the evidence that highway district 3 extended to the land of Solomon Harmon in 1848 is not evidence of a public highway. This merely describes the boundaries of the district by referring to land owned within the district.
Accordingly, the court finds it does not appear that the general public used the purported Solomon Harmon Road continuously without interruption for a period of twenty years prior to 1968, under a claim of right without the owner's permission.
III. Lay Out of Solomon Harmon Road
As stated above, there are four ways a public highway may be created. Aside from prescriptive use, a public highway may also come into existence where the road is "laid out in the mode prescribed therefor by statute." RSA 229:1 (1993). Under RSA 231:8, "[s]electmen of a town, upon petition, may lay out any . . . class V or VI highway or alter any such existing highway within their town for which there shall be occasion." (1993). Pursuant to RSA 231:34, "[a]ny person aggrieved by the decision of selectmen in the laying out or altering of a highway . . . may appeal therefrom to the superior court for the county in which such land or other property is situate" (1993). Bourne appeals the Selectmen's decision to lay out Solomon Harmon Road.
On an appeal pursuant to RSA 231:34, the petitioner is entitled to a trial de novo on the issue of whether there is an occasion to lay out a public highway. V.S.H. Realty. Inc. v. City of Manchester, 123 N.H. 505, 508 (1983). The court must make "an independent determination of the occasion, or appropriateness, of laying out a road as requested."Wolfeboro Neck Prop. Owners Ass'n v. Town of Wolfeboro. 146 N.H. 449, 452 (2001) (quotations and citations omitted).
"Determining whether occasion exists is a two-step process."Rogers Dev. Co. v. Town of Tilton, 147 N.H. 57, 59 (2001). "The first step is to balance the public interest in the layout against the rights of the affected landowner." Id. "If the rights of the affected landowner outweigh the public interest in the layout, the layout is not justified and there is no occasion for it." Id. at 59-60. "If, however, the public interest justifies the taking of the land without the landowner's consent, the second step is to balance the public interest in the layout against the burden it imposes upon the town." Id. at 60. "If the balancing required by the second step favors the public interest, occasion for the layout exists." Id.
The court received the following evidence on this matter. David Davis ("Davis") testified as follows. Davis lives on East Madison Road. On November 2, 2004, Davis petitioned the Selectmen "to layout the Solomon Harmon Road (ref. R.S.A. 231;8-20) To (sic) allow public access to the Malcolm P. McNair Conservation Easement. . . ." (Town's Ex. BB). On November 29, 2004, Davis submitted a second petition to the Selectmen requesting the Selectmen lay out Solomon Harmon Road to a "width of 50 feet starting at the East Madison Rd. and ending at the McNair Conservation Easement." (Id. Ex. CC). The court reviews de novo whether there is an occasion to grant these applications and lay out Solomon Harmon Road. V.S.H. Realty, Inc., 123 N.H. at 508.
John Arruda ("Arruda") testified as follows. Arruda has been on the Board of Selectmen for the Town since March 2000. Arruda testified the public benefit in laying out Solomon Harmon Road is to provide the most direct access to the McNair Easement. Arruda also testified, however, that there is at least one other point of access to the McNair Easement, that the laying out the class VI road would not create any additional jobs or tax revenue for the Town, alleviate any traffic problems, or offer additional access to homes. Arruda testified the reasons for laying out the class VI road include promoting snowmobile use, creating a straight line of access to the McNair Easement for logging, and concerns over the validity of the Kelsey Easement.
Bourne also testified as follows. Laying out Solomon Harmon Road as a class VI road would be burdensome to Bourne as he would be responsible for maintaining the road for public use. The road would also be dangerous because there is no place to park, and there would be a risk of collisions between people walking or using snowmobiles on the road and people in other motor vehicles. Bourne testified the sound of snowmobiles is quite loud and is a disturbance to himself and his family. Bourne is concerned for the safety of his family being in close proximity to a road used by people using snowmobiles.
Based on the limited evidence received regarding the public need for laying out a class VI road, the court finds there is no occasion to lay out the road. There are other access points to the McNair Easement. There is no indication that there will be any substantial logging on the McNair Easement. Furthermore, the road would also have a serious impact on Bourne's use and enjoyment of his property. Bourne's rights outweigh the public interest in the layout.
IV. Attorneys' Fees
The petitioner argues he is entitled to attorneys' fees with respect to essentially all the issues before the court in the consolidated cases. "The general rule in this State is that each party to a lawsuit is responsible for payment of his or her own lawyer's bill." Adams v. Bradshaw, 135 N.H. 7, 16 (1991). There are, however, recognized exceptions to this rule. Id. Such exceptions include cases where "an individual is forced to seek judicial assistance to secure a clearly defined right if bad faith can be established, [or] where litigation is instituted or unnecessarily prolonged through a party's oppressive, vexatious, arbitrary, capricious or bad faith conduct," or where a party is "forced to litigate against an opponent whose position is patently unreasonable[.]" Id. at 16-17. The petitioner seeks attorneys' fees and costs under all three of these exceptions.
The petitioner argues the Town's decision to lay out Solomon Harmon Road was based solely on the Town's interest in avoiding the pending litigation with Bourne and to create a snowmobile trail. The petitioner further argues the Town had no legitimate basis upon which to argue the Kelsey Easement allows for snowmobile use. The petitioner also argues the Town's evidence of a class VI road by prescription was so sparse that the Town was unreasonable in asserting such a claim.
Although the Town did not prevail on any of the issues presented, the court finds the Town did not conduct itself or respond to this litigation in a manner warranting attorneys' fees.
Accordingly, the court finds the Kelsey Easement does not allow for motorized vehicle use by the general public. The court further finds the location of the Kelsey Easement is set forth unambiguously in the deed, and therefore will not be disturbed. The court also finds Solomon Harmon Road does not exist by prescription and there is no occasion to lay out the road as a public necessity or convenience. There is therefore no need for the court to address the location of Solomon Harmon Road. Finally, the court finds the petitioner is not entitled to attorneys' fees and costs.
So Ordered.