Northern Pass Decision: A Road
Well Traveled
[This article originally appeared in the New England
Real Estate Journal, March 3, 2017.]
It was only a matter of time before
the controversial Northern Pass project ended up in court. While the recent decision by the New
Hampshire Supreme Court in Society for
the Protection of New Hampshire Forests v. Northern Pass Transmission, LLC did
not exactly shake the legal world’s foundation, it illuminates important
aspects of the law dealing with highways for developers and landowners.
The Northern Pass case centered on the utility’s proposal to bury a
portion of its high-voltage transmission line (intended to bring
hydroelectric-generated power from the Canadian border to southern New
Hampshire and Massachusetts) within the bounds of a state highway in
Clarksville. The Forest Society, which
owns land on both sides of the highway, sued to stop this plan on the grounds
that it would exceed the scope of the public right-of-way and could not be
legally accomplished without the Forest Society’s consent. Relying on case law stretching back to the 19th
century, the court reaffirmed that the use of a public highway right-of-way for
the placement of public utilities, including electrical transmission lines, is
within the scope of the easement. The
court further concluded that there was no evidence that the Northern Pass plan
would unreasonably burden the Forest Society’s property.
The first point illustrated by the Northern Pass case is the importance of knowing, especially in a
dispute with a municipality or utility, the extent of one’s ownership of the
land on which a highway is located. The
Forest Society’s claim was predicated on the general legal presumption that the
owners of land abutting a public highway own to the center line of the highway,
subject only to whatever easement rights the public may have. This gave the Forest Society a plausible,
albeit unsuccessful, argument that using the highway to bury the utility lines
would exceed the scope of the public right-of-way.
Although not disputed in this case, the legal presumption of
ownership of the land under a highway by the abutting landowners does not always
hold. For example, in providing for a
public street, a developer may have unwittingly conveyed full title to the land
underlying the road. Alternatively, a
developer may have specifically reserved the right to a subdivision road for itself
or a homeowners’ association. If that
had been the case with Route 3 in Clarksville, the Forest Society would have
had no opportunity to challenge the plan to bury the utility lines.
The second point illustrated by the Northern Pass case is the importance of paying attention to the
possible scope of the easement granted in a highway deed to a
municipality. Although the Forest
Society owned the land under Route 3, its opposition to the Northern Pass plan failed
because of the scope and nature of this particular easement. As a general matter, the scope of an easement
will be defined by its terms, and the holder’s use of the easement cannot
exceed what was reasonably intended by the terms of the easement. However, the express terms of an easement are
often vague, and courts will infer the scope of an easement from the
context.
The Northern Pass case
demonstrates that the scope of a highway easement can be quite broad. It is not necessarily limited to the movement
of people or property in vehicles. Quoting
from a 1957 decision, the court stated that “[as] science develops highways may
be used for any improved methods for the transmission of persons, property,
intelligence or other means to promote sanitation, public health and
welfare.”
There is very little a landowner or developer can do to
narrow the scope of a highway easement once created. However, it may be worth reviewing the
specific language of the documents that created the right-of-way to see if it
lends itself to a more constrained interpretation of the public’s rights. Landowners should also consider seeking a
formal discontinuance of the public’s rights in little used or “paper” streets.
In most new projects in which a public street is being
created, developers tend to accept the municipality’s standard highway
easement, paying little attention to the potential consequences. Given the state of the law as affirmed in the
Northern Pass case, and rapidly
evolving technology (new energy sources, unmanned drones, etc.), developers
should consider ways to limit the scope of the easement in order to avoid
undesirable uses of the street at some point in the future. For some projects, it may make sense to
forego entirely the benefits of making a street public and keep complete
control of the roadway.
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