Whenever a city, town, or other type of municipality decides to install a sewer line, water line, or other item, they must obtain a license from the landowner. This allows the municipality to access the property for the installation, maintenance, and even the removal if necessary. But what happens when the landowner revokes the license? Would the municipality then be held liable for trespassing?
While this may seem like an unlikely scenario, it has actually happened in the state of New Hampshire. In the case we are referring to, the city had obtained a license from the landowner when a sewer line was installed. However, we all know that properties are sold and purchased by new owners all of the time. Therefore, it shouldn’t be surprising that a new homeowner wouldn’t want the city to have access to their property. In those scenarios, the new landowner can rescind the license that was in place.
It is that little loophole of licensing that has made easements a more popular choice with all municipalities in recent years. At least with easements, the property right is established for longer terms and cannot be removed as easily as a license.
The Supreme Court in New Hampshire was assigned the task of hearing the case of Boyle v. City of Portsmouth. Back in 1967, the City of Portsmouth installed a sewer line across the rear of a property. The property was owned by the state at the time, so a formal easement was never granted by the state.
In 2003, the land was sold to the owner of a car dealership who owned a piece of adjacent property. A year later, the new landowner discovered that there was a sewer line on the property. The new owner worked with the city to resolve the issue of the sewer line being on the property. However, by 2008, the new owner chose to send a letter to the city stating that they must remove the sewer line from his property.
The city refused to remove the sewer line and that is why in 2010, the owner chose to sue the city for trespassing.
During this case, the city continued to argue that they had a prescriptive easement, as well as an irrevocable license for this piece of property. The New Hampshire Supreme Court ruled that the city’s usage of this piece of property did not qualify as a prescriptive easement. Since all of the prior owners had given the city permission to use this part of the property, that permission could be revoked at any time.
As for the irrevocable license, the New Hampshire Supreme Court also disagreed with that. While the city had spent money on the sewer infrastructure, that didn’t mean the license couldn’t be revoked. According to the court, licenses cannot be transformed into irrevocable licenses, because that would violate the statute of frauds.
While a revoked license can cause significant problems for one party, in this case the city, the actual license can cause problems for the landowner as well. This is why all types of licenses cannot be considered as a permanent solution. If that were to occur, the courts would be filled with even more cases in the future.
Do you have a concern about a potential license on your property? Contact us today.