NH Law About... Private Roads

Introduction to... Private Roads

Posted February 5, 2016.

Although there is a lot of information on the topic of New Hampshire road law in the statutes and in books explaining the law, there is very little written specifically about private roads. 

[Follow the links in the Read about the law … and Read the law … sections below to find the sources we mention.]

According to the New Hampshire Municipal Association, “there is currently no clear definition of a ‘private road’; there is no bright-line test to distinguish, for example, an easement for a driveway to serve a few houses in common from a private road”. In Chapter 3 of Road and Access Law: Successfully Handling Disputes, Attorney Paul J. Alfano states that a private road is nothing more than an access easement and may be created by any of the manners set forth in that book chapter. Attorney Peter J. Loughlin, in Municipal Taxation and Road Law, defines public roads as “free and common to all citizens” but does not define private roads; however, based on the Loughlin discussion, they are clearly roads which are not “free and common to all the citizens”. Private roads are not included in the statute RSA 229:5 which categorizes public roads as Class 1 through Class VII. 

The 2015 edition of the very well-regarded book from the New Hampshire Municipal Law Association, A Hard Road to Travel: New Hampshire Law of Local Highways, Streets and Trails, is the most helpful of all the sources referenced. It discusses private roads in several sections, relating to implied acceptance (which would turn a private road into a public road), town maintenance of and building on private roads, and approval of private roads.  Land Use Planning and Zoning has a short discussion of the requirements before a town can allow the erection of a building on a private road. Finally, the New Hampshire Municipal Association's website, has many resources on roads and road law.

Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ... is not a substitute for the services of an attorney.


Read about... Private Roads

WEBSITES

New Hampshire Municipal Association. Roadway Legal Hazards: Implied Dedication and Acceptance of Highways (November/December 2011)

Link verified on: February 5, 2016

This article contains a section which discusses that town maintenance of a private road implies acceptance as a public highway.   GO>

New Hampshire Municipal Association. Legal Q and A: Building on Private Roads under RSA 674:41: When and How is it Authorized?   GO>

Link verified on: February 5, 2016


PRINT

A Hard Road to Travel : New Hampshire Law of Local Highways, Streets and Trails / by Margaret M.L. Byrnes, ed. (New Hampshire Municipal Association 2015).   GO>

Link verified on: February 5, 2016

Road Access and the Municipal Planning Process / by Gary H. Bernier and Susan Slack. 2006 Municipal Law Lecture Series # 3 (New Hampshire Local Govern-ment Center 2006).   GO>

Link verified on: February 5, 2016

Road and Access Law: Successfully Handling Disputes / by Paul J. Alfano, Henry H. Amsden, Gary H. Bernier and Susan Slack. (National Business Institute, 2007).   GO>

Link verified on: February 5, 2016

Road and Access Law in New Hampshire: Researching and Resolving Access Disputes / by Gary H. Bernier and Susan Slack. (National Business Institute 2005).   GO>

Link verified on: February 5, 2016

Where Road Law and Zoning Collide : RSA 674:41 and Other Paths Around the Rotary / by Gary H. Bernier, Bernard H. Campbell and H. Bernard Waugh, Jr. 2003 Municipal Law Lecture Series # 2 (New Hampshire Municipal Association 2003).  GO>

Link verified on: February 5, 2016

Municipal Taxation and Road Law / by Peter J. Loughlin (Newark, N.J.: Matthew Bender, LexisNexis 2008)   GO>

Link verified on: February 5, 2016

Land Use Planning and Zoning / by Peter J. Loughlin (Newark, N.J.: Matthew Bender, LexisNexis 2010) 4th ed.  GO>

Link verified on: March 18, 2016

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Read the law about... Private Roads

NEW HAMPSHIRE STATUTES

RSA 229. Highway System in the State  GO>

Link verified on: February 5, 2016

RSA 231. Cities, Towns and Village District Highways  GO>

Link verified on: December 9, 2016

RSA 674. Local Land Use Planning and Regulatory Powers  GO>

Link verified on: February 5, 2016

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: February 22, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE CASES

16 N.H. 203 (1844). State v. Atherton

Link verified on: February 5, 2016

This is the one of the earliest and still a leading New Hampshire case on dedica-tion and acceptance of roads.   GO>

162 N.H. 141 (2011). Russell Forest Management v. Town of Henniker

Link verified on: February 5, 2016

This short case explains RSA 674:40 and 674:41; including whether a town can discontinue a public road and turn it into a private road.   GO>

162 N.H. 768 (2011). Crowley v. Town of Loudon

Link verified on: February 5, 2016

This case articulates the process a town must go through when approving or denying acceptance of a road as a town road. The board of selectmen must balance the public need for the road against the burden the road will impose on the town.   GO>

164 N.H. 468 (2012). State v. Lathrop

Link verified on: February 5, 2016

The NH Supreme puts to rest the possibility that a private road is a DWI-free zone when it upheld the defendant’s conviction after he crashed on a private road in a private community. The Court’s reasoning was that even though the road was private and there was a do not enter sign, there was no gate or barrier and it was thus still a “way” for the purposes of the DWI statute. That statute was written specifically to address the problem of drunk driving, and making private roads exempt from the law would not further that goal.   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: February 22, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

FOR MORE HELP ...

New Hampshire. Dept. of Transportation. Classification of Highways (1998)

Link verified on: February 5, 2016

An explanation from the New Hampshire Department of Transportation on the different classifications of roads in NH.   GO>

New Hampshire Law Library

Link verified on: February 22, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


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