Wolfe v. Town of Windham
Wolfe v. Town of Windham
Opinion of the Court
Plaintiffs appealed to the superior court pursuant to RSA 238:4 for an assessment of damages arising from a discontinuance of a road by the town of Windham. Trial by jury resulted in a verdict for the town. Plaintiffs’ exceptions to certain jury instructions given by the trial judge were reserved and transferred by Mullavey, J. This appeal poses the question of the correctness of the trial court’s interpretation of the law as embodied in the jury instructions.
In 1962 plaintiffs owned a 60-acre tract with approximately 1,750 feet frontage on Spear Hill Road, a public road partially within the town of Windham. In February when they learned from newspapers of the proposed closing of Spear Hill Road, the plaintiffs presented to the Windham Planning Board a preliminary subdivision plan comprised of seven lots bordering the road. The motive for submitting the proposal was to make it clear to the town that plaintiffs intended to eventually sell the seven lots. The preliminary plan was endorsed by the board with the understanding that formal approval was not required since Spear Hill Road was still in existence at that time and provided adequate access to the proposed lots. Two weeks later the selectmen of Windham voted to discontinue most of Spear Hill Road. As a result 1,522.5 feet of the road abutting plaintiffs’ property was discontinued, leaving them with about 227.5 feet of the access from their property to the portion of the road still open to public. After the discontinuance of Spear Hill Road, plaintiffs retained a private right of way over it and still had access
The substance of the trial court’s charge to which plaintiffs objected is that an abutter cannot recover for the discontinuance of a road if he has an alternative means of access to his property. We agree with the town that this is a correct statement of the law in this State. St. Regis Co. v. Board, 92 N.H. 164, 172, 26 A.2d 832, 839 (1942); Tilton v. Sharpe, 85 N.H. 138, 139-40, 155 A. 44, 46 (1931); Cram v. Laconia, 71 N.H. 41, 52, 51 A. 635, 641 (1901). In Cram this court stated that an abutter has a right of access to the highway upon which he is located. Id. To the extent that he is specially damaged, as opposed to suffering harm similar to that sustained by the public in general, he can recover for the destruction or impairment of the right of access. As plaintiffs point out, this position is in accord with the accepted view. 2 American Law of Property § 9.54 (A.J. Casner ed. 1952); C. Antieau, 1A Municipal Corporation Law § 9.42 (1974); Annot., 73 A.L.R.2d 652, 656 (1960).
The court in Cram, however, did not fully delineate the dimensions of a right to access. In particular, no mention was made of the effect of an alternative means of access where a road directly abutting the property is discontinued. Plaintiffs contend that the presence of another means of access does not affect one’s ability to recover damages. But both the St. Regis and Tilton cases indicate that the question of whether a right of access has been affected entails the consideration of alternative modes of reaching the property. In St. Regis plaintiff sought to have a sluiceway made in a recently constructed dam so as to permit it to continue to utilize the river as a means of transporting logs. In rejecting that claim the court recognized the close analogy between a public waterway and public highway, but noted that plaintiff retained another means of access for transporting the pro
In this case plaintiffs retained access from their property to not only the open portion of Spear Hill Road but also to two other public roads. Since they also retained a private easement over Spear Hill Road, they had ready access to their property from several routes. Plaintiffs’ theory, however, is that the access to the seven lots in the preliminary subdivision plan has been impaired. But this assumes that the seven lots had an identity distinct from plaintiffs’ property as a whole. Nothing was done to give these lots a separate identity other than the submission of an informal plan to the planning board in anticipation of the closing of Spear Hill Road. This in itself did not yield a right of access specifically for the seven lots. See Piper v. Meredith, 110 N.H. 291, 299, 266 A.2d 103, 109 (1970).
Accordingly, the trial court’s instructions are sustained and the order is
Plaintiffs’ exceptions overruled.
Dissenting Opinion
dissenting: In the court’s charge, the jury was told that if the plaintiffs had an “alternative access to his property”, they could not recover. There was no mention made as to the reasonableness of the alternative means of access.
I think the court is wrong in two respects. It seems clear
In addition Tilton v. Sharp, 85 N.H. 138, 155 A. 44 (1931), also cited by the court, was not a discontinuance-of-a-highway case. Rather, it was a case involving loss of access to a filling station from one of two adjacent streets. Nevertheless, that case states that the reasonableness of alternative means of access must be considered. In the case before us, the jury was not told to consider the reasonableness of the alternative means of access but were told that any other means of access would prevent the plaintiffs from recovering damages. See C. Antieau, 1A Municipal Corporation Law § 9.42, at 9-91 (1974). I think, therefore, that a new trial should be ordered.
Reference
- Full Case Name
- Harold A. Wolfe and Gertrude E. Wolfe v. Town of Windham
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- 5 cases
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- Published