NH Supreme Court Confirms the "Whole Road" Presumption

In the quirky world of roads, many state courts have adopted a rebuttable presumption that abutters own the fee to the middle of roads, subject to the rights of the public to use the road.  But what happens where no one owns land on the other side of the road?What if a public body of water is on the other side?  Does the abutter still own to the middle?

The short answer is no.  In those cases, the abutter is presumed to own the entire road, and the doctrine is called the “whole road” presumption.  The New Hampshire Supreme Court recently confirmed the doctrine is alive and well in the case of Cucchi v. Town of Harrisville, 2024 N.H. 29 (June 4, 2024).

Background

John Cucchi owned a parcel of land south of Skatutakee Lake in Harrisville. His property abutted buts the southern edge of Skatutakee Lake Road, a Class V highway laid out in 1939.  The layout called for the highway to be 100 feet wide, resulting in the highway extending into the lake.

The portion of the highway used by the traveling public (the “road”) did not occupy the entire 100 feet, leaving a narrow strip of land between the road and the lake. This disputed parcel, north of the road but within the highway, was claimed by both Cucchi and Pamela Worden.

Cucchi acquired his land in 2019. His title traced back to a 1999 deed from June Clooney to Stanley Castor (the “Castor Deed”), which described the northern line of Cucchi’s lot as following the south line of Skatutakee Road.

Worden, who owns adjacent land comprised of three merged parcels, claimed title to the disputed parcel through a 2002 deed from Clooney to Ruth Shepard and Toni Silk (the “Silk Deed”). The Silk Deed conveyed “all right, title and interest, if any,” in the disputed parcel. Worden acquired this property in 2016 and merged it with other land she owned in 2019. In 2021, the Town of Harrisville, pursuant to a 1978 warrant article authorizing such action, conveyed most of its rights in the disputed parcel to Worden by quitclaim deed.

Superior court proceeding

Cucchi filed an action in the superior court to quiet title to the disputed parcel, arguing the Castor Deed is presumed to have conveyed the entire fee under the highway due to its bordering public waters.  Cucchi sought other relief as well, not addressed here.

In response to the parties’ cross motions for summary judgment, the superior court granted summary judgment in favor of Pamela Worden on the issue of who owned the disputed parcel.  Underlying the court’s ruling was a conclusion that the width of the highway, for purposes of applying the middle-of-the-road or whole-road presumptions, was the road, i.e., just the traveled portion of the highway rather than the entire 100’.  Using only the traveled portion of the highway meant the highway did not extend into the lake, leaving land between the road and the lake. With land on the other side of the road, the court concluded Cucchi only owned to the middle of the road rather than to the lake.

Supreme Court appeal and decision

In paragraph 12, the Supreme Court summarized the key facts as follows:

Here, there is no dispute concerning the relevant facts. The parties agree that Clooney…owned the fee in the land under the [highway] right-of-way at the time of the Castor Deed.  It is undisputed that the [highway] right-of-way is 100 feet in width extending to the shore of the lake. Nor is there a dispute that the entirety of the disputed parcel lies within the [highway] right-of-way. Thus, contrary to the finding of the trial court, there was no land owned by Clooney “on both sides of the highway” at the time of the Castor Deed. Rather, Clooney owned land on only one side of, and underneath, the highway right-of-way. The whole-road presumption therefore applies unless the deed contains a “clear and unequivocal declaration . . . to limit the title of the grantee to the edge of the street.”

Once the Court determined the highway extended to the water, the next question was whether June Clooney clearly and unequivocally declared an intention to retain title to the highway in the Castor Deed.

The Castor Deed described the northern boundary of Cucchi’s parcel as running “easterly along the south line of Skatutakee Road.”  (This sort of description is typical in real estate transactions, thus the presumption of road ownership, whether to the middle or for the entire road.)  The Court noted its prior rulings that such boundary descriptions are not enough to reserve the fee beneath a highway. Without an explicit reservation, the whole-road presumption applies, meaning the Castor Deed conveyed the entire right-of-way, including the disputed parcel, to Cucchi.

The Cucchi decision and corresponding road ownership presumption is a good example of the common law at work.  Other than a handful of specialty statutes permitting state or local ownership of certain types of roads, no New Hampshire statute declares who owns the fee “underneath” abutting roads, and no such statute likely ever has existed, both before or after statehood, which is a very long time.  Real estate rights largely have remained quietly and securely in the hands of the courts.   

For assistance with road ownership and road law, contact Alfano Law at (603) 856-8411 or at this link.