(This is an excerpt from our Road Law Guide. To read more and download the full guide click here.)
In the context of public roads, acceptance is an act by a municipality or the general public to make a dedicated road available for use by the traveling public. Acceptance can be accomplished formally, such as by vote of the appropriate body, or informally, such as by physical actions taken by the public or the municipality.
The distinction between acceptance of a road for purposes of giving the public the right to use a road versus acceptance which imposes on a municipality the duty to maintain a road can be confusing, thus a distinction between “acceptance for use” versus “acceptance for maintenance” can provide a helpful distinction.
As stated earlier, 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. Once so dedicated, and assuming no other facts exist indicating the owner does not unequivocally manifest an intention to abandon the property and dedicate it to public use, the public then 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 may be presumed in the absence of some burdensome condition imposed by the donor. For example, an argument could be made the public right of passage is beneficial because it relieves 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.
Alternately, the “public servitude” created by recording a plan and conveying lots pursuant to the plan (see RSA 231:51) may simply refer to the power of the public to accept a road for use (versus maintenance) by opening, using, or building the road, and may have nothing to do with maintenance.
The type of acceptance imposing an obligation on a municipality to maintain a road is another matter. A municipality often assumes this responsibility by town meeting vote or its equivalent, but this is not necessarily the exclusive manner in which municipalities may accept dedicated streets.
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.
You can contact Alfano Law Office by calling (603) 856-8411 or at this link.