NH Supreme Court Clarifies Law Relating to Highways by Prescription

Public highways established by prescription are only those that have been used for public travel for 20 years prior to January 1, 1968. (See NH RSA 229:1.)  In Town of Dunbarton v. Guiney et al. (decided February 5, 2020), the New Hampshire Supreme Court clarified the nature of the proof needed to establish a highway by prescription. The trial court in that case found that a highway by prescription had been established; however, the Supreme Court reversed, finding that there had been insufficient proof as to the “adversity” of the public’s use of the way. 

The Supreme Court first cited the general law that to establish a highway by prescription it must be shown that the general public used the way continuously for a period of 20 years prior to 1968 and that the public use was adverse (i.e., without the owner’s permission). The primary evidence introduced to show the highway by prescription was maps that pre-dated 1968 by more than 20 years. The Court held that the maps, by themselves, were competent evidence to support an inference of continuous and uninterrupted public use but were not sufficient to support a finding that the public use was adverse to the owner over whose property the way traversed. 

The Court held that to meet the adversity requirement, the nature of the use must be such as to show that the owner knew, or ought to have known, that the right was being exercised, not in reliance upon the owner’s permission, but without regard to the owner’s consent. The only evidence introduced in that regard was that the Town had used the area in question to allow its plow trucks to turn around safely. The Court held that this was insufficient to put the owner on notice that the use was adverse and being made under a claim of right by the Town. The Court appeared to establish the standard as whether or not a reasonable person would understand the municipality to be making a claim of right to the property by its use of the way. 

Lessons learned from this recently decided case include: 

1. Maps predating 1968 are insufficient by themselves to meet the “adversity” requirement for establishing a highway by prescription; 
2. There must be some further indication of adversity, of a claim of right without the owner’s permission, such as stone walls or commercial enterprises along the road; and 
3. To establish the requisite adversity, the general standard is whether a reasonable owner would understand the public to be making a claim of right by its use of the way.

Enforcement of Tax Liens

This year, one subject that raised a lot of questions related to title to real estate acquired by the foreclosure process for failure to pay real estate taxes and the sales of those properties. Although the process is laid out very clearly in the statute, Title 36, particularly §§ 942 and 943, it has proven challenging for tax assessors to always get things right. The Law Court has been very clear that if there is even a minor error in the tax foreclosure process, it will be declared to be void if challenged by the taxpayer.

One of the particular areas of concern is the requirement under Title 36, Section 943 (the so-called 30-day notice), which must be served to complete the foreclosure process. A common mistake that is made is that the notice is simply sent to the address of the property itself, rather than to the owner’s usual place of abode, or last known address. Another problem we have seen is that when a town isn’t careful, it assesses property to one property owner when there are multiple property owners, including husbands and wives. A notice of foreclosure only sent to one property owner may not be effective against the property as a whole, and, at a minimum, will not be effective against the interests of the property owner who was not notified. Even when it is clear that the process was handled properly, towns often choose to file a quiet title action to ensure that they have good title to property before attempting to re-sell it. The title standards of the bar generally require a ten-year waiting period for titles to be considered clear. There is no impediment to the town selling the property once it obtains title through the foreclosure process, even if title has not been declared by a court. It is critical that the assessor carefully follows the exact process laid out in Title 36, §§ 942 and 943, for the municipality to properly acquire title to property acquired because of tax delinquency.