Road Acceptance – A Proposal

Road “acceptance” is a common enough term, but what exactly does it mean?  Does it mean a municipality has the obligation to maintain the road in question, or does it simply mean the public has the right to use the road?  And what is required for an acceptance to occur?  This distinction can be confusing.

Fortunately, the Supreme Court tackled the issue in the seminal case of Harrington v. Manchester.[1]  In that case the court noted “…a failure to distinguish between what is necessary to vest the right of passage in the public and what is necessary to constitute an acceptance such as will render the city or municipality responsible for the construction and maintenance of the streets.”[2]

This distinction can be quite important in a number of contexts, one being so-called paper streets.  Although a municipality may not have the obligation to maintain a paper street, certain persons, or even the public at large, may have the right of passage.[3]  In this article I describe the two types of acceptance and propose the adoption of two terms, acceptance-for-use and acceptance-for-maintenance.

 Acceptance-for-Use

Recording a plan and conveying lots in accordance with the plan constitutes an unequivocal intention to dedicate the streets shown on the plan to public use.  This act also creates certain rights in abutters, which is beyond the scope of this article.[4]  Once so dedicated, and assuming no other facts exist indicating the owner does not unequivocally manifest an intention “to abandon his property and dedicate it to public use,” the public has the immediate right to take the street for public use.  At this stage, the public would have no right to use the dedicated street for public use; the public still needs to accept the street.

If the public right of passage over the street would be beneficial to the public, public acceptance will be presumed in the absence of some burdensome condition imposed by the donor.  In the Harrington case, the public right of passage was beneficial because it relieved the municipality of the obligation to pay damages to the abutters should the municipality formally create a highway at a later date through the lay out process, which is what happened in that case.  In most cases, therefore, dedication of a street immediately gives the public the right of passage over the street.

Acceptance-for-Maintenance

Imposing the obligation to maintain a street on a municipality is another matter.  The need for a separate, distinct act of acceptance by municipalities for purposes of maintaining a street is clear:  “…it would be a great hardship upon towns if an individual could lay out a way upon his own land, throw it open to the public, and then oblige the town to charge themselves with the maintenance and repairs of it.”[5]

A municipality ordinarily accepts a dedicated road today by town meeting vote or by affirmative action of the board of mayor and aldermen or city council; however, other methods exist by which a municipality may be deemed to have accepted a road for maintenance purposes.  Some of these theories are old, yet none have been eliminated by the General Court or the Supreme Court.  In fact, the ability of a municipality to accept a road via town meeting vote simply is the newest method, having been created by the General Court in 1945.   A court may deem a road accepted if the municipality repairs the road or if the public uses the road for twenty years, coupled with municipal maintenance.

i)  By Local Legislative Action

A municipality may accept a dedicated road by town meeting vote or its equivalent.  The legislature created this power in 1945 when it re-introduced dedication and acceptance as a mode of creating a highway.  Although the Supreme Court stated the purpose of the 1945 amendment was “to enable municipalities to accept dedicated streets with only a formal vote,” the Court did not say this was the exclusive manner in which municipalities could accept dedicated streets.[6]  In fact, at least one case after 1945 acknowledged twenty years public use could constitute acceptance[7] and another acknowledged some threshold of public use, without reference to the need for it to continue for twenty years, could constitute acceptance.[8]

Planning boards do not have the power to accept roads.  Planning Board approval of a subdivision plot does not constitute acceptance by the municipality of any street shown on the plot.

A municipality may accept a street corresponding to one shown on the municipality’s official map or on a subdivision street plat approved by a planning board with platting jurisdiction.  A municipality also may accept a street that received the legal status of a public street prior to the planning board obtaining platting jurisdiction.

Municipalities may accept streets not shown on the official map or on approved plans as long as the ability to do so appears in an “ordinance or other measure.”[9]  The “ordinance or other measure” must be submitted to the planning board for its approval.  If the planning board approves the ordinance, then the ordinance becomes effective upon an affirmative vote of a majority “of the entire membership of the local legislative body.”  If the planning board disapproves the ordinance, then the ordinance requires a two-thirds vote.

A municipality with the town meeting form of government may delegate to the board of selectmen (or other governing body) the authority to accept dedicated streets.  Only municipalities which have conferred upon a planning board platting jurisdiction in accordance with RSA 674:35 may delegate this power.  If such a delegation of authority is made, a board of selectmen may vote to accept any dedicated street only if the street corresponds in its location and lines with a street shown on a subdivision plat or site plan approved by the planning board, or on the municipality’s official map, or on a street plat made and adopted by the planning board. The board of selectmen must hold a public hearing on the proposed acceptance prior to taking action.

One old case holds that Selectmen also may accept a road by laying it out.[10]  Because the layout process is a separate method by which a municipality may assume the responsibility to maintain a road, this form of acceptance probably holds little meaning.

For cities, the city council or board of mayor and aldermen must accept the dedicated road.  Practitioners should obtain copies of minutes to establish acceptance.  Do not rely on the word of a clerk.

RSA 231:51 gives the governing body of municipalities (versus the legislative body) the power to release a street from all public servitude unless the street is opened, built, or used for public travel within twenty years from dedication.  Being “opened, built or used for public travel” means either the street is formally accepted by vote of the legislative body or a use commences which may ripen into acceptance.  Failure to accept such streets, lanes or alleys “deprives the public of any independent right it has in the road,” provided the local governing body so votes.[11]   Private rights, such as implied easements, remain unaffected.

ii)  By Municipal Repair of Road

Under common law, the selectmen could accept a road by authorizing its repair, erecting signs or by “any other official act of recognition.”[12]  In addition, towns could accept a road by voting to raise money for its repair or by performing “any other act recognizing an obligation to repair.”[13]  Road repair as evidence of acceptance fell victim to the imposition of the twenty year rule in 1842; however, evidence of road repair may be relevant again today following the re-codification of dedication and acceptance in 1945.

iii)  By Twenty Years Use

While public use of a dedicated road for less than twenty years may establish acceptance, twenty years public use “may furnish conclusive evidence of acceptance.”[14]  Before 1913, “an offer of dedication created a permanently vested right in the town to accept [a dedicated] street.”[15]  Between 1913 and July 16, 1989, a road could be accepted only if it was opened, built or used for public travel within twenty years of dedication.  Beginning July 16, 1989, the power to accept a road may be terminated after twenty years by vote of the governing body of the municipality.

Use of a road that ultimately may ripen into acceptance may commence, therefore, in the nineteenth year following dedication and arguably need not continue for twenty years.  One reason this is possible is the Supreme Court’s ruling that the “20 years prior to January 1, 1968” language in RSA 229:1 applies to prescription only.  If the language applied to all types of uses, whether prescriptive or the type that historically ripened into acceptance, then acceptance by use would not be valid today, unless the use began twenty years before January 1, 1968.  Under the current version of RSA 231:51, if a use commences, say, in the twenty-first year following dedication, that use still may ripen into acceptance, but the governing body of a municipality may terminate the power of acceptance prior to that point.

Occasional use is insufficient to constitute public acceptance of a dedicated way.  For example, occasional, seasonal use of a paved path to the ocean is insufficient for public acceptance, especially where abutters, tenants, friends and neighbors make up most of the use.  Limited use of land by neighboring owners without express permission does not constitute public acceptance.

Public use of a road for twenty years also may create a presumption that the municipality laid out the road and is obligated to maintain it.  This theory is distinct from the twenty years that may furnish conclusive evidence of acceptance or the twenty years required for prescription or even the twenty years required for custom.  No recent cases have re-stated this theory.

As you can see, the methods by which a municipality can accept a road for purposes of assuming the obligation for its maintenance are more extensive than the type of acceptance that merely bestows upon the public the right of passage.