Argued: October 25, 2017
Gardner Fulton and Waugh PLLC, of Lebanon (H. Bernard Waugh,
Jr. and C. Christine Fillmore on the brief, and Mr. Waugh
orally), for the plaintiff.
Cleveland, Waters and Bass, P.A., of Concord (William B.
Pribis on the brief and orally), for the defendant.
defendant, landowner Carl N. Casagrande, appeals an order
from the Superior Court (Tucker, J.) granting a
motion for summary judgment filed by the plaintiff, the Town
of Goshen. The issue before the trial court was whether a
section of road abutting Casagrande's property is an
unmaintained town road, or whether, as Casagrande contends,
it is private property because the residents of Goshen voted
at a town meeting in 1891 to discontinue the road. After
reviewing the record of the 1891 town meeting, including the
language of the warrant article, the trial court concluded
that the town had not voted to discontinue the road, and,
therefore, Page Hill Road is a public highway. We affirm.
following facts are undisputed. Casagrande owns property with
frontage on Page Hill Road in Goshen. Page Hill Road runs
from Province Road in Goshen to the Newport town line, where
it becomes a Newport town highway. Goshen maintains the
southerly .17-mile portion of Page Hill Road between Province
Road and Casagrande's driveway. The unmaintained portion
of Page Hill Road begins at Casagrande's driveway.
Casagrande has installed a combination-locked gate that
prevents vehicle access to Page Hill Road north of his
driveway. Only town police, local fire officials, and
abutters who request access have the combination to the lock.
1891, the Goshen town meeting voted on whether to discontinue
the section of Page Hill Road north of Casagrande's
driveway. Article 11 of the Warrant for the 1891 Goshen town
meeting reads as follows:
To see if the Town will vote to discontinue and throw up the
highway leading from Willie E. Howe's to Newport town
line providing Newport will throw up theirs to meet us.
vote of the town meeting was recorded as: "Art
11th: Voted to throw up the road mentioned in this
article." The Town of Newport has never discontinued its
portion of Page Hill Road.
filed suit in superior court requesting that the court
permanently enjoin Casagrande from blocking public access to
Page Hill Road. Goshen claimed that, because Page Hill Road
is a Class VI highway, access cannot be blocked by a locked
gate. RSA 231:21-a, I (2009). Goshen moved for summary
judgment. Casagrande objected, contending that the
unmaintained portion of Page Hill Road north of his driveway
was discontinued by a vote at town meeting in 1891.
Casagrande argued that the road was discontinued because the
condition precedent set forth in the warrant article - that
Newport "throw up" its portion of the road - is not
reflected in the meeting minutes and, therefore, was not
incorporated into the vote of the town meeting. The trial
court granted summary judgment for Goshen, ruling that
Casagrande had not met his burden to prove the road had been
discontinued. This appeal followed.
parties agree, as do we, that Goshen had the legal authority
to condition discontinuance of the road on a subsequent
event. See New London v. Davis, 73 N.H. 72, 75
(1904) (holding that a town's ability to discontinue a
road would be "seriously hindered, or wholly prevented,
if the vote could not be made to depend upon a future
event"). Moreover, the parties further agree that, if
the 1891 vote did not actually discontinue Page Hill Road,
then the unmaintained portion of the road in Goshen remains a
Class VI highway, open to the public. Thus, the dispositive
legal issue on appeal, as it was in the trial court, is
whether the 1891 vote of the town meeting to discontinue Page
Hill Road was conditioned upon Newport's discontinuance
of its portion of Page Hill Road.
reviewing the trial court's grant of summary judgment, we
consider the affidavits and other evidence, and all
inferences properly drawn from them, in the light most
favorable to the non-moving party. Weaver v.
Stewart, 169 N.H. 420, 425 (2016). If our review of that
evidence discloses no genuine issue of material fact, and if
the moving party is entitled to judgment as a matter of law,
we affirm the grant of summary judgment. Id. We
review the trial court's application of the law to the
facts de novo. Id.
appeal, Casagrande argues that the trial court erred when it
concluded that the 1891 town meeting vote conditioned the
discontinuance of Page Hill Road on reciprocal action by the
Town of Newport. He contends that, unless a town meeting
record is "unclear or ambiguous, " or incorporates
the warrant article by reference, the warrant article should
not be considered when interpreting the town vote. Our
inquiry is not so limited.
of this case requires that we interpret the record from the
1891 town meeting to determine whether the voters intended to
condition discontinuance of Page Hill Road upon action by the
Town of Newport. "Because public roads are discontinued
by town vote, and such actions are recorded, the best
evidence of discontinuance is the official record."
Blagbrough Family Realty Trust v. A & T Forest
Prods., 155 N.H. 29, 37 (2007) (quotation and ellipsis
omitted). We have long "recognized that town meetings do
not consistently express their purposes with legal precision
and nicety and that votes adopted by such meetings will be
liberally construed" to give legal effect to language
imprecisely employed to express the corporate purpose.
McMahon v. Town of Salem, 104 N.H. 219, 220 (1962)
(citation omitted). Therefore, we consider ...