Questions arise when towns abandon roads

The questions come up in all of the area towns from time to time as people move to remoter sections.

What is the status of that old road?

Was it closed or abandoned in the past, or is it now my private road?

Can it be used by the public for hiking or snow mobiles?

In order to build a new house, most towns require frontage on a "Class V or better road," meaning one that is regularly maintained by the town. To build on a Class VI road, it must be upgraded or some kind of agreement reached with the Planning Board.

But if the house is already there, the question comes up: Does the public have a right to use this road that is mostly my driveway?

In the past, roads were created or adopted by a vote of the town. Therefore, in order to close or abandon an old one, it also requires a vote at Town Meeting. That can be a contentious issue if the road in question is a popular way to get up the mountain, landowners want to cut the lumber or the Fire Department wants access to the back country.

New Hampshire road laws are complicated, especially where it comes to Class VI, the unmaintained town roads. These roads are mostly the result of a declining population after the Civil War, when many properties were abandoned.

According to the town history, the first "road into Lyndeborough" came from the Amherst Northwest Parish, now Mont Vernon, by way of Johnson’s Corner in the late 1700s. There are now few signs of that road, which was abandoned many years ago, but a few years ago, use of it caused a disagreement between neighbors.

What is now my driveway was abandoned in 1890 when the road was moved to provide a second access to South Cemetery. According to various Internet sources, until 1903, a town could only abandon a road. At that time, the state Legislature passed a law allowing roads to be closed "subject to gates and bars," which allowed the landowner to install a gate, apparently for confining livestock. The roads could be used by the public, but they had to open and close the gates.

In 1925, the state freed towns from maintaining closed roads and freeing them from liability should the condition of the road cause an accident. But the roads remain public, and a landowner cannot arbitrarily close one; thus, the current Class VI.

In 1994, the Legislature enacted the Emergency Lane Statute, which allows a town to upgrade or maintain a Class VI road for firefighting.

But new landowners frequently don’t understand the concept of "gates and bars," and attempt to prevent hikers from walking past their homes. Some have gone to court over the idea, and some petition Town Meeting to close the road, which is rarely done.

Lyndeborough recently went through this exercise, which involved several trips to Concord and many hours of research through old records in order to establish that the road in question had never been closed. Wilton had a similar problem for years over a discontinued road to Temple.

The old roads have been here since the 1800s, and many people have used them in the past and want to continue to do so. Landowners cite privacy rules, and the public claims right of historic access. It isn’t an easy question to answer.

If you really want to know all about this, find a copy of "A Hard Road To Travel: New Hampshire Laws of Local Highways, Streets and Trails." It was published by the Local Government Center in 2004. While it can be a cure for insomnia, it is an interesting read and has most of the answers to road questions. They aren’t going to go away.

Keep up with the past with Another Perspective, which runs monthly in The Telegraph. Jessie Salisbury can be reached at 654-9704 or jessies@tellink.net.