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STATE OF NEW HAMPSHIRE SUPREME COURT No. 2012-___ Kevin P. Sheehan v. State Of New Hampshire, DRED et al.

Sheehan Verified Motion For Access To His Derry Home During Appeal
Kevin P. Sheehan (Sheehan), by his attorney, respectfully moves this Court for an Order granting him access to his home and land in Derry, New Hampshire using the Rockingham Recreational Trail while this Appeal is pending until 30 Days after a decision on his Appeal becomes final. In support thereof he states: 1. This Motion is being filed with this Court together with the timely filed original and eight copies of Sheehans Notice Of Appeal from the trial courts final order on the merits (Final Order) in Sheehan v. State Of New Hampshire, DRED et al, Rockingham Superior Court #2009-E-316. 2. The relief Sheehan seeks by this Motion, if granted, should not affect the outcome of this Appeal. 3. On December 2, 2011, together with his timely-filed Motion For Reconsideration of the trial courts Final Order, Sheehan filed a motion with the trial court seeking similar access to his Derry Home and Land during this appeal. By its Order dated January 4, 2012 (Clerks 1/5/2012 Notice of Decision), the Court denied his Motion For Access. Attached

to this Motion are the trial clerks 1/5/2012 Notice Of Decision and courts 1/4/2012 Order denying Sheehans Motion For Access. 4. On November 14, 2008, Sheehan purchased and became owner of record of a 13-acre tract of land in Derry, New Hampshire. On his land is located an old home which dates back to the nineteenth century (Sheehan Home). 5. The only usable motor vehicle access to and from the Sheehan Home and a paved Derry Town Road is over the former B & M Railroad right-of- way a distance of 0.40 miles to Warner Hill Road. A highway was laid out over 23 miles of this right-of-way by the Commissioners of Rockingham and Hillsborough Counties. It was completed in 1941 when the Commissioners made their Return Of Highway Layout. The old rail bed within the right-of-way, which was straight and flat and built to carry locomotives and trains, was used for local motor vehicle travel after the rails and ties were removed in the 1940s. The well-worn paved driveway of the Sheehan Home goes directly from the Sheehan Home to the old rail bed. 6. The States only apparent connection to the 1941 Highway Layout was that State Highway Commissioner F.E. Everett was one of the petitioners who in January 1938 petitioned the Rockingham Superior Court for the highway layout. Except for a three mile section made part of State Route 111, the laid out highway was never designated or developed as a State Highway nor was it ever formally discontinued. In January 1975 however the Governor and Council transferred control of this highway from the States Transportation Department to its DRED Department for recreational trail use. Apparently the State assumed it had the right, title, and authority to convert a highway laid out by the

Rockingham and Hillsborough County Commissioners in compliance with the laws in effect in 1941 into a recreational trail from which conventional motor vehicle traffic can be (and has been) excluded. The former railroad right-of-way and highway presently comprises and is known as the Rockingham Recreational Trail (RRT). Recreational vehicle traffic uses the old rail bed within the RRT. 7. Nonetheless conventional motor vehicle traffic continued to use the old rail bed within the RRT after January 1975, including for access between Warner Hill Road and the Sheehan Home. (See also 11 below) In July 2008 however NH-DRED installed a steel pole-gate near Warner Hill Road that prevented conventional motor vehicles from passing. This new gate blocked conventional motor vehicle travel over the RRT between Warner Hill Road and the Sheehan Home and Land that prior owners and occupants of the Sheehan Home had enjoyed since about the 1940s.1 8. Before the 1940s road access to the Sheehan Home and Land had been over Jackman Road, a gravel road now a Class VI Derry Town Road. In fact the Sheehan Home was the only home for which Jackman Road provided access. Derry abandoned maintenance of Jackman Road prior to 1965 according to a 1976 Derry Town Highway Map on file in the Rockingham Registry which was Sheehan Trial Exhibit 1.2 The old rail bed which is now within the RRT provided shorter and more direct access to a paved Derry Road, Warner Hill Road, from the Sheehan Home. It is likely that Derry abandoned

A gate installed in/about the late 1980s blocked motor vehicle access after (northeasterly of) the Sheehan Driveway but still allowed motor vehicle access between Warner Hill Road and the Sheehan Driveway and Home. Sheehan entered his case in the trial court on July 30, 2009 seeking permanent access for conventional motor vehicles between Warner Hill Road and his Derry Home and Land using the RRT.

At trial by Agreement of the Parties, all Exhibits marked for identification were admitted into evidence.

maintenance of Jackman Road because commencing about the 1940s the owners and occupants of the Sheehan Home stopped using Jackman Road as road access to the Sheehan Home because they preferred using the old rail bed that is now part of the RRT. 9. Regarding Jackman Road and its condition, the trial court found as follows (Final Order, p. 5, attached to the Sheehan Notice Of Appeal): Jackman Road, which abuts Sheehan's property, is an unpaved road which is presently not in very good condition. The road is at places narrow, is generally overgrown with vegetation or brush, and is intruded upon by trees. It presents a challenge to at all navigate with a motor vehicle. The Town of Derry discontinued Jackman Road's maintenance sometime prior to 1965. It is a Class VI town road. Sheehan asserts and the Court agrees that Jackman Road, in its present state, does not currently provide motor vehicle access to and from Sheehan's property. 10. Regarding the use of (the old rail bed within) the RRT as access to the Sheehan Home and Land, the trial court found (Final Order, p. 6): The corridor/route now constituting the RRT, or some portion or portions thereof, appears to have been used, to some degree and prior to 1975, for travel by motor vehicles after the railroad ties had been removed in about the 1940's. Sheehan Ex. 11. Perhaps prior to, but certainly at some point after the time the Town ceased to maintain Jackman Road, prior owners of Sheehan's property and their invitees ceased using it to get to and from their property, and instead used the corridor/route now part of the RRT for access. The Court heard from a number of previous owners/occupants of what is now the Sheehan property, and their testimony reflects that for many years they used the RRT for access. Other evidence establishes as well that the police and fire department have over many years accessed the property's house via the RRT without any need to deal with any restrictions or gates. 11. The State has held the position throughout the trial court proceedings that Jackman Road alone provided Sheehan with motor vehicle access to his Home and Land.

12. When Sheehan entered his case in the trial court on July 30, 2009, he moved for a Preliminary Injunction to access his Home and Land by the RRT while the case was pending. At the 8/26/2009 preliminary injunction hearing the Parties entered an Agreement the trial court approved that afforded Sheehan and his invitees controlled access to his Derry Home and Land using the RRT while the case was pending in the trial court. 13. Under this Agreement each time Sheehans vehicle or a vehicle of his invitee entered the RRT from Warner Hill Road, regardless of the time of day or the weather, Sheehan had to unlock a combination lock and remove the piece of rebar that held the lock so the pole could be locked in its housing, lift the heavy steel pole from its housing, pull it away from the opposite side of the gate (or else it will jam), carry the pole to the opposite side of the gate and then lower it gently to the ground. Once the vehicle has entered the RRT, to relock the gate, Sheehan had to pick up the heavy steel pole and carry it back to its housing on the opposite side of the gate, carefully align the holes in the top and bottom of the end of the pole with holes above the pole and below the pole, insert the rebar so it passes through all four holes, and relock the lock so it locks the pole in its housing. This procedure for both opening and closing the gate had to be repeated each time Sheehan or an invitee left the RRT for Warner Hill Road. If this Court grants his Motion, Sheehan will be obligated to comply with this procedure again. Common sense dictates that this procedure will not encourage overuse of the RRT. 3 14. The State has argued safety is a ground to try to deny Sheehan access. The Parties 8/26/2009 Agreement providing Sheehan access to his Home and Land remained

When there is enough snow on the ground for snowmobiles to operate, the gate is left open however.

in effect from August 29, 2009 to January 6, 2012, a period over 28 months. There have not been any complaints or reports of incidents involving Sheehan or his invitees adversely affecting the safety of RRT recreational users during this lengthy period. 15. The State may also argue as it has that Sheehan should have, at his own expense, upgraded Jackman Road. The State however has been well aware of the following. Sheehan received written terms and conditions to improve Jackman Road from the Derry Town Road Agent in November 2008 that were so onerous that in June 2011, shortly before trial, Derrys attorney felt compelled to send a letter to Sheehans attorney scaling down the Road Agents requirements. (Sheehan Trial Exhibits 5 & 6). At trial the Road Agent testified that the Derry had kept the gate that accessed Jackman Road locked until about two weeks prior to the trial in late July 2011 when, on advice of its attorney, Derry unlocked the gate. Also the State provided Sheehan with a State Highway Engineers written Estimate (Sheehan Trial Exhibit 9) to improve Jackman Road of $40,000, not a paltry sum. Of course actual costs could be greater as they often are. And this Estimate did not include the cost or, also important, the time required to secure the necessary permits, including securing environmental permits which might be required. 16. Additionally the State just cannot bring itself to acknowledge that if Sheehan eventually prevails in his case, he would not need Jackman Road to access his Derry Home. 17. And Sheehan asserts he has a good chance of prevailing on appeal. The trial court found the State could do what it wanted with the RRT, even use it as a recreational trail from which non-recreational motor vehicle traffic is excluded, because it ruled that the 1941 Highway Layout vested title to what is now the RRT in the State in fee simple.

This ruling is plain legal error. The 1941 Highway Layout simply laid out a new highway, an easement/right-of-way. It never vested fee simple title in the State. The Commissioners Return of Highway Layout made in October 1941 (States Trial Exhibit K) is not a deed or declaration of taking. Its operative words are we, therefore, lay out a new highway. The State of New Hampshire is not even mentioned once in it. And the State lacked the authority to acquire title to real estate for a highway in fee simple until Laws 1945, Ch 188, Part 7 was enacted, and then only for limited access highways. In Kostrelos v. Merrill, 101 NH 317, 318-319 (1958), 143 A.2d 400, 402, this court wrote: The laying out and construction of limited access highways is governed by RSA ch. 236 which had its origin in Laws 1945, c. 188, Part 7. This statute for the first time provided means by which the state could acquire title to real estate for a highway in fee simple, either by purchase or condemnation. (Emphasis Added). The trial court failed to recognize this was a factual statement this court made in 1958 on what the law had been, instead dismissing it as mere dicta. (Final Order, p. 12), 18. The trial court also ruled the RRT was never a highway. The result of this ruling includes its purpose would not be the publics viatic (travel, passage) use, no formal process would be necessary to discontinue the RRT as a highway, and it would not be protected by 216-F: 2, II from the encroachment of recreational trails. This ruling was also a plain error of law. It is true as the court found the RRT was never designated or developed as a State Highway. However the RRT did not have to be a State Highway to be a highway under our statutes and case law. The Commissioners completed laying out the RRT as a highway when they made their Return of Highway Layout. The Return is not a mere ministerial act. In effect, the return (of highway layout) is the laying out

(of the highway). Browns Petition, 51 NH 367, at 368 (1871) State v Michaud,

98 NH 356, at 357, 100 A2d 899 (1953). Highways are only such as are laid out in
the mode prescribed therefor by statute RL 1942, Ch 90, Section 1, now codified in NHRevStat 229:1. The RRT was laid out as a highway in the mode prescribed therefor by statute in 1941 when the Commissioners made their return. Though never a State Highway, the RRT was and remains a public highway or road nonetheless under both current law and prior law. It is a Class VI highway under the all other public ways clause in current law, 225:5, VII and was a highway under RL 1942, Chapter 100, Section 24, V & VI, as one of all other travelled highways (V) and/or all other existing ways, not regularly maintained (VI). As a highway, the RRT is limited to the publics viatic use, a formal discontinuance procedure is necessary to discontinue the publics viatic rights, and the public is protected from the encroachment of the States recreational trails by 216-F: 2, II, clause 1, because the RRT is an existing public road 19. Based on over 28 months of actual past experience, granting this Motion will not create actual danger for RRT recreational users. Sheehan has not had motor vehicle access to his Home for nearly a month. Denying this Motion will deny him motor vehicle access to his Home, including to bring in fuel and other necessities, during the entire appeal process, even though he has a good chance of prevailing on appeal. 20. By bringing this Motion and seeking the temporary relief he seeks, Sheehan is not admitting or conceding that defendant has any right, title or authority to make and/or enforce terms and conditions to limit or regulate access to and use of the RRT, including between Warner Hill Road and his Derry Home and Land.

Wherefore Kevin Sheehan respectfully moves the Court to enter an Order that: A. Sheehan and his invitees are granted and shall have conventional motor vehicle access between Warner Hill Road, Derry and his Derry Home and Driveway using the Rockingham Recreational Trail (RRT) while this appeal is pending and until 30 days after a decision on this Appeal becomes final: and B. The Following Terms and Conditions Are Applicable To Sheehans Access: (1) The State shall promptly provide Sheehan with the combination and/or key to the lock for the RRT pole-gate near Warner Hill Road; and. (2) Except when the pole-gate is left open by the State or by an organization such as the Snowmobile Association it authorizes, each time Sheehan or his invitees enter the RRT from Warner Hill Road or leave the RRT for Warner Hill Road using a conventional motor vehicle Sheehan is responsible to ensure that the pole gate is unlocked and opened and, after passing through the gate, that the gate is closed and locked again; and (3) Sheehan is responsible to ensure that he and his invitees while in conventional motor vehicles on the RRT keep their vehicle headlights on and/or use their vehicles flashing lights and drive in a safe and careful manner including to observe a speed limit of not more than 10 miles per hour; and (4) Sheehan is permitted to snowplow a path not more than eight (8) feet in width on the southeasterly side of the old rail bed within the RRT but shall leave the remainder of the old rail bed unplowed for snowmobile use; and