An access easement is a right to pass over someone else’s property for – you guessed it – access. Other types of easements exist that are not for access, such as an easement to place and operate a cell tower on someone’s land. A private road also provides access to one’s land.
Generally, only a limited number of people may use an access easement. Similarly, only a limited number of people may use a private road.
A municipality has no right to use or regulate an easement or private road, absent the consent of the landowners or imposition of a statute.
What, then, is the difference between an easement and a private road? Until the passage of statutes in New Hampshire deploying the term “private road,” the answer would have been “very little.”
Confusion began in 1983 with the enactment of RSA 674:41. This statute prohibits the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed is a Class V, municipally-maintained road. By jumping through a few hoops, a person also may erect a building on a Class VI (non-town maintained) or private road. The statute, however, did not define the term “private road,” resulting in litigation.
The New Hampshire Supreme Court oral argument for one such case, Russell Forest Management LLC v. Town of Henniker 162 N.H. 141 (2011), makes one appreciate the difficulty being a judge. One issue before the court was whether a particular easement rose to the level of a private road. Noting neither RSA 674:41 – nor any statute – defined the term private road, the Chief Justice looked to the justices on her left and right and commented wryly this was not the first time the legislature tossed a matter they could not, or would not, resolve the court’s way. (The court decided the easement was not a private road.)
More recently, RSA 231:81-a came into effect August 2, 2019. That statute says that when more than one residential owner enjoys a common benefit from a private road, the new law requires each residential owner to contribute “equitably” to the “reasonable cost” of maintaining the private road. As with RSA 674:41, RSA 231:81-a does not define private road.
Subdivision regulations sometimes use the word “road” without fleshing out its meaning, resulting in a “we’ll know it when we see it” approach.
And what about implied easements in subdivisions? Recording a subdivision plan, and then conveying lots according to the plan, ordinarily creates an implied easement to use the roads on the plan, but does that make those “roads” private roads for RSA 674:41 and RSA 231:81-a?
This much, at least, can be said: while all private roads likely also are easements, not all easements are private roads.