The New Hampshire Supreme Court found a city liable for trespass by not removing a sewer line after the landowner revoked their license.
When neighboring landowners are friendly with one another, they are likely to informally grant licenses to each other to use or access their properties for a variety of reasons. For example, informally allowing a neighbor to access a portion of your property to gather firewood would create a license that is freely revocable by you at any time. This informal ability to use property, with no requirement that the license be in writing or recorded in the public records, is particularly common when both landowners have a close relationship such as being family members or two or more local government entities that frequently work together.
However, property ownership is not static. Over time the property subject to the license may be owned by someone other than the person who granted the license (the “licensor”). The new owner’s ability to freely rescind the license is problematic if the license holder (the “licensee”) spent significant resources improving the license area, such as building a paved driveway. For this reason, easements are typically the safer method for establishing the longer-term ability of a third party to access your property. This is because easements convey a property right and must meet legal requisites such as being in writing and recorded.
II) Boyle v. City of Portsmouth Trial
This specific disadvantage of licenses was discussed in the recent New Hampshire Supreme Court case of Boyle v. City of Portsmouth, 172 N.H. 781 (2020).
In Boyle, a city installed and extended a sewer line in 1967 across the rear of a piece of property owned by the state. The state allowed the city to install the line but did not grant the city a formal easement. In 2003, the owner of a car dealership on the adjacent property, looking to expand the dealership, purchased the property.
In 2004, the owner of the dealership became aware of the sewer line on the property. The owner allowed the city to leave the line in its current position until the parties attempted to resolve the dispute. In 2008, the owner sent a letter to the city stating that there was no legal right for the city to keep the sewer line on his property and demanded its removal. When the city refused to remove the sewer line, the owner sued the city in 2010 for trespass and other claims.
III) Boyle v. City of Portsmouth Decision
The city argued it held a prescriptive easement or an irrevocable license in the property. The New Hampshire Supreme Court disagreed and held the city’s use of the property did not qualify as a prescriptive easement as there was no evidence the city had used the property for 20 years in an adverse manner. Instead, all prior owners had given the city permission to use the property and had not revoked that ability. When use of another’s land begins with permission, it cannot become adverse in nature without an explicit repudiation of the earlier permission. See Taylor v. Gerrish, 59 N.H. 569, 571 (1880).
The Court also disagreed with the city’s assertion it held an irrevocable license. The city argued it would be unfair to allow the new owner to revoke the license when the city had spent funds on the sewer infrastructure in reliance on the license decades ago. However, a license cannot be transformed into an irrevocable license (essentially an easement) because it would violate the statute of frauds (a legal concept requiring permanent transfers of property rights be in writing). The Court refused to overrule Houston v. Laffee, 46 N.H. 5050 (1866), a historic case which held an oral (“parol”) license could never become an easement.
A landowner’s decision to revoke a license to use their property can cause significant problems for the licensee that may seem unfair (the opposite also is true). However, allowing informal and orally granted licenses to forever burden future landowners would likely be even more problematic and increase the odds of litigation.