This article, written by attorney Courtney Herz, was originally published by the NH Bar News and can be found here (page 35).
A perhaps surprising number of property owners find themselves facing a myriad of confusing questions if their property includes or abuts a so-called “paper street.”
How is a paper street created?
As outlined in RSA 229:1, roads in New Hampshire can be created in one of four ways: (i) the legal processes of eminent domain and layout of a road, (ii) construction of a road on land that has been deeded to a municipality, (iii) dedication and acceptance, or (iv) prescription.
For land to become a road under the third of these methods, both dedication and acceptance must occur. First, a property owner can “dedicate” their land by unequivocally expressing an intent that the municipality accepts the road. While there are many ways this can be done, one frequently-employed method is for a developer to depict the anticipated road on a recorded plan, and then to sell lots with reference to that plan.
Dedication, however, is not sufficient to create a road. The law protects municipalities from becoming involuntarily obligated to maintain roads that they do not want by requiring them to “accept” a dedication in order for it to become effective.
In those instances where a road has been dedicated through depiction on a recorded plan, but – for whatever reason – has never been accepted by the municipality, a paper street (one that exists only on paper) has been created.
Who owns a paper street?
Typically, in New Hampshire, the abutting land owners actually own the fee interest in the land under a road. This is true even where a road has been constructed and exists other than on paper. In those instances, the municipality holds an easement for the public’s viatic (“reasonably incident” to travel) use, but the property owner actually owns the fee. In most cases, the boundary line is found at the centerline of the municipality’s right of way. In fact, the abutting property owners usually own the fee to the centerline, even when the deed recites the adjoining road as the lot’s boundary line or refers to a plan which depicts a road as the boundary.
These ownership principles are the same whether a road “actually” exists or whether it is simply a paper street. In a paper street, though, because the dedication was never accepted, the municipality does not hold an easement for the public’s use over that road.
Understanding the law governing the ownership of the fee interest in roads can be particularly important when determining the boundary between abutting property owners along a paper street or, similarly, a road that had existed but was discontinued by the municipality. If there is confusion, or a difference of understanding, between those property owners, a quiet title action is sometimes necessary to resolve the situation.
How can a land owner determine if a municipality’s acceptance of a dedication was effective?
The answer to this question depends on when the road was dedicated. In 1912, in the case of Harrington v. Manchester, 76 N.H. 347 (1912), the NH Supreme Court held that a dedication is permanent – a municipality has the option to accept that road – even long after the dedication was made.
In 1913, the following year, however, the legislature enacted a statutory limit, creating a scheme whereby unaccepted dedications automatically expired after 20 years.
The statute, now codified at RSA 231:51, was amended in 1989, and now provides that a municipality may release a dedication by an express vote, if the road has not been accepted within 20 years of the dedication.
In short, dedications made before 1893 (20 years before the 1913 statute was enacted) are perpetual. Those made between 1893 and 1969 (20 years before the 1989 amended statute) terminated automatically if they were not accepted within 20 years. And, more recent dedications are perpetual unless terminated by vote of the governing body.
What other issues can arise concerning paper streets?
Just as in virtually all areas of the law, the types of problems and disputes that can arise concerning paper streets are almost innumerable. Some of the most common concern access and building rights. For example, under certain circumstances, property owners whose only access to their land is over a paper street may be found to hold an implied easement for access rights.
Questions can also arise when the owner of a property that is only accessible from a paper street seeks approvals to build on that lot. Frequently, planning board approval of the street will allow the paper street to be considered for purposes of assessing frontage calculations.
In short, paper streets present a wide variety of legal questions, which often arise for property owners who may not even know of the existence of a paper street, near or through their land.