NH Law About... Private Roads

Introduction to... Private Roads

Updated May 18, 2017.

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

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. 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: May 18, 2017

Just about every town and city in New Hampshire has houses situated on private roads that are open to public use and thereby dedicated as potential highways. Some private roads predate municipal planning; for example, the lakeside camp developments dating from the first half of the 20th Century, many of which now have winterized year-round dwellings. Other private roads are modern roads installed in subdivisions that are still under development.   GO>

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

Link verified on: May 18, 2017

In the 19th century, towns could formally lay out "private ways," but there is currently no definition of "private road." "Street" is broadly defined for the purposes of the land use control statutes and includes ". . . road, lane, alley . . . and other ways." RSA 672:13. There is no bright-line test to distinguish an easement for a driveway to serve a few houses in common from a "private road." Municipalities sometimes adopt local standards for regulatory or E-911 house-numbering purposes. For example, a common "driveway" could be defined as serving not more than two dwellings, while a "private road" serves three or more dwellings. (Private roads in modern subdivisions pose no problem under the statute because lots in approved subdivisions are automatically eligible for building permits under RSA 674:41, I (a) (2).)   GO>


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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).

What is a public highway? -- How are local highways created? -- New Hampshire's highway classification system -- Discontinuance of highways -- Special categories of layouts and roads -- Liability, regulation and maintenance duties -- Roads, streets and land use planning -- Class VI highways -- Trails -- Bridges -- Highway drainage -- Highway funding -- Utility lines and other private enterprise highway uses -- Sidewalks, parking and streetlights.   GO>

Link verified on: May 18, 2017

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

Current case law and legislative update -- Public roads : creation and use -- The ins and outs of private road creation and use -- Abandonment and vacation considerations -- Road and access pitfalls when handling real estate transactions-- Trial preparation and litigation of the road and access case.   GO>

Link verified on: May 18, 2017

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

Link verified on: May 18, 2017

Municipal Taxation and Road Law / by Peter J. Loughlin. 2008  GO>

Link verified on: May 18, 2017

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Read the law about... Private Roads

NEW HAMPSHIRE STATUTES

RSA 229. Highway System in the State  GO>

Link verified on: May 18, 2017

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

Link verified on: May 18, 2017

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

Link verified on: May 18, 2017

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

Link verified on: June 26, 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

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

Link verified on: May 18, 2017

The plaintiff, Russell Forest Management, LLC, appeals the order of the Superior Court upholding the decision of the zoning board of adjustment (ZBA) of the defendant, Town of Henniker (Town), that a public highway did not become a private road after it was discontinued by a Town vote. We affirm.   GO>

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

Link verified on: May 18, 2017

We have outlined a two-step process for a trial court to undertake when assessing whether "occasion" for laying out a road exists. First, the court must "balance the public interest in the layout against the rights of the affected landowner." If the rights of the affected landowner outweigh the public interest, there is no occasion for laying out the road. If, on the other hand, "the public interest justifies... taking ... the land without the landowner's consent," then the court must engage in a second step, which is to balance the public interest in the layout against the burden imposed upon the town. "If the balancing required by the second step favors the public interest, occasion for the layout exists."   GO>

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

Link verified on: May 18, 2017

We construe statutes to address the evil or mischief that the legislature intended to correct or remedy. Public safety requires that DWI statutes apply to any property to which the public has access. It would be contrary to legislative intent to construe the statute to provide that a private road in a lakeside community that is used by residents, guests, and select invitees is a DWI-free zone. Accordingly, we uphold the trial court's determination that Alderberry Lane is a "way."   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: June 26, 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 Law Library

Link verified on: June 26, 2017

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


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