If you tolerate a few members of the general public to cross your land for twenty years, you may have opened the door to the entire general public crossing your land. The legal theory is called a “public easement.” A desire to access lakes and public recreational land are ripe situations for the creation of these types of rights.
Prior to 2016, only a handful of New Hampshire Supreme Court decisions referenced the concept of public prescriptive easements. The Court brought the concept into the sunshine in the case of Jesurum v. WBTSCC Limited Partnership, 169 N.H. 469 (2016). In Jesurum, cars traveled over, and parked on, land owned by a trust for which Bill Binnie, former candidate for US Senate, served as trustee. They did so for over twenty years.
This theory is distinct from highways created by prescription. These require evidence of use prior to January 1, 1948. Some clarification may be needed to distinguish between a prescriptive “highway” and a prescriptive – what? Parking area? Path? The difference is important because it affects the amount and type of use that may continue. While refinement of the meaning of public easements may be required, the theory, at least, exists quite clearly.
Simple techniques exist to prevent this sort of right from developing. This is provided action is taken prior to the running of the twenty years. For more information, please contact Alfano Law Office at (603) 856-8411. You can also contact us here.
Paul J. Alfano, Esq.