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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Sullivan
No. 2017-0137


                               TOWN OF GOSHEN

                                        v.

                             CARL N. CASAGRANDE

                           Argued: October 25, 2017
                       Opinion Issued: January 26, 2018

      Gardner Fulton and Waugh PLLC, of Lebanon (H. Bernard Waugh, Jr.
and C. Christine Fillmore on the brief, and Mr. Waugh orally), for the plaintiff.


      Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the
brief and orally), for the defendant.

      BASSETT, J. The defendant, landowner Carl N. Casagrande, appeals an
order from the Superior Court (Tucker, J.) granting a motion for summary
judgment filed by the plaintiff, the Town of Goshen. The issue before the trial
court was whether a section of road abutting Casagrande’s property is an
unmaintained town road, or whether, as Casagrande contends, it is private
property because the residents of Goshen voted at a town meeting in 1891 to
discontinue the road. After reviewing the record of the 1891 town meeting,
including the language of the warrant article, the trial court concluded that the
town had not voted to discontinue the road, and, therefore, Page Hill Road is a
public highway. We affirm.
      The following facts are undisputed. Casagrande owns property with
frontage on Page Hill Road in Goshen. Page Hill Road runs from Province Road
in Goshen to the Newport town line, where it becomes a Newport town
highway. Goshen maintains the southerly .17-mile portion of Page Hill Road
between Province Road and Casagrande’s driveway. The unmaintained portion
of Page Hill Road begins at Casagrande’s driveway. Casagrande has installed a
combination-locked gate that prevents vehicle access to Page Hill Road north of
his driveway. Only town police, local fire officials, and abutters who request
access have the combination to the lock.

      In 1891, the Goshen town meeting voted on whether to discontinue the
section of Page Hill Road north of Casagrande’s driveway. Article 11 of the
Warrant for the 1891 Goshen town meeting reads as follows:

      To see if the Town will vote to discontinue and throw up the
      highway leading from Willie E. Howe’s to Newport town line
      providing Newport will throw up theirs to meet us.

The vote of the town meeting was recorded as: “Art 11th: Voted to throw up the
road mentioned in this article.” The Town of Newport has never discontinued
its portion of Page Hill Road.

       Goshen filed suit in superior court requesting that the court permanently
enjoin Casagrande from blocking public access to Page Hill Road. Goshen
claimed that, because Page Hill Road is a Class VI highway, access cannot be
blocked by a locked gate. RSA 231:21-a, I (2009). Goshen moved for summary
judgment. Casagrande objected, contending that the unmaintained portion of
Page Hill Road north of his driveway was discontinued by a vote at town
meeting in 1891. Casagrande argued that the road was discontinued because
the condition precedent set forth in the warrant article — that Newport “throw
up” its portion of the road — is not reflected in the meeting minutes and,
therefore, was not incorporated into the vote of the town meeting. The trial
court granted summary judgment for Goshen, ruling that Casagrande had not
met his burden to prove the road had been discontinued. This appeal followed.

       The parties agree, as do we, that Goshen had the legal authority to
condition discontinuance of the road on a subsequent event. See New London
v. Davis, 73 N.H. 72, 75 (1904) (holding that a town’s ability to discontinue a
road would be “seriously hindered, or wholly prevented, if the vote could not be
made to depend upon a future event”). Moreover, the parties further agree
that, if the 1891 vote did not actually discontinue Page Hill Road, then the
unmaintained portion of the road in Goshen remains a Class VI highway, open
to the public. Thus, the dispositive legal issue on appeal, as it was in the trial
court, is whether the 1891 vote of the town meeting to discontinue Page Hill
Road was conditioned upon Newport’s discontinuance of its portion of Page Hill
Road.


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       In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Weaver v. Stewart, 169
N.H. 420, 425 (2016). If our review of that evidence discloses no genuine issue
of material fact, and if the moving party is entitled to judgment as a matter of
law, we affirm the grant of summary judgment. Id. We review the trial court’s
application of the law to the facts de novo. Id.

      On appeal, Casagrande argues that the trial court erred when it
concluded that the 1891 town meeting vote conditioned the discontinuance of
Page Hill Road on reciprocal action by the Town of Newport. He contends that,
unless a town meeting record is “unclear or ambiguous,” or incorporates the
warrant article by reference, the warrant article should not be considered when
interpreting the town vote. Our inquiry is not so limited.

       Resolution of this case requires that we interpret the record from the
1891 town meeting to determine whether the voters intended to condition
discontinuance of Page Hill Road upon action by the Town of Newport.
“Because public roads are discontinued by town vote, and such actions are
recorded, the best evidence of discontinuance is the official record.”
Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 37 (2007)
(quotation and ellipsis omitted). We have long “recognized that town meetings
do not consistently express their purposes with legal precision and nicety and
that votes adopted by such meetings will be liberally construed” to give legal
effect to language imprecisely employed to express the corporate purpose.
McMahon v. Town of Salem, 104 N.H. 219, 220 (1962) (citation omitted).
Therefore, we consider the entire record relating to the ballot question,
including the language of the warrant article, in ascertaining the voters’ intent.
See Town of Derry v. Simonsen, 117 N.H. 1010, 1015 (1977).

       Discontinuance is not favored in the law; once a road is established as a
public highway, it is presumed to exist as a public highway until it is
discontinued. Blagbrough, 155 N.H. at 36-37. “Discontinuance is a fact that
must be proved and the burden is upon the party who asserts discontinuance
to prove it by clear and satisfactory evidence.” Id. at 37 (quotation omitted).
Therefore, Casagrande bears the burden of rebutting the “strong presumption
against discontinuance,” and, in order to prevail, he must prove by “clear and
satisfactory evidence” that Page Hill Road has been discontinued. Id.
(quotation omitted).

      Casagrande argues that Article 11, which sets forth the condition
precedent, should not be considered because the town meeting minutes are
“very clear” and are sufficient to prove that Page Hill Road was unconditionally
discontinued. He argues that Sawyer v. Manchester & Keene Railroad, 62 N.H.
135 (1892), stands for the proposition that “where there is a failure in the
record of the vote to mention conditions contained in an article, those


                                        3
conditions cannot be ‘read into’ the vote.” However, in Sawyer, the court held
that even though witnesses testified that the meeting minutes recording a town
meeting vote were inaccurate, the minutes could not be amended years later
because a third party had relied on the vote as recorded in entering into and
performing a contract with the town. Sawyer, 62 N.H. at 152-57. Here, the
parties disagree about what the town meeting actually approved; more
specifically, whether the voters intended to discontinue Page Hill Road without
condition. Sawyer does not address what part of the town meeting record we
can review in ascertaining the voters’ intent.

       The town meeting minutes state as follows: “Art 11th: Voted to throw up
the road mentioned in this article.” These minutes reference the warrant
article, which places a condition precedent on the discontinuance of Page Hill
Road: “To see if the Town will vote to discontinue and throw up [the Town of
Goshen’s portion of Page Hill Road] providing Newport will throw up theirs to
meet us.” (Emphasis added.)

      Casagrande argues that the reference in the minutes to Article 11 does
not incorporate the condition stated in Article 11 but serves only to identify the
road at issue. Relying upon New London v. Davis, he argues that, had the
meeting minutes explicitly referenced the warrant article by using the language
“as per,” then the condition precedent stated in the warrant article would have
been incorporated by reference. Davis, 73 N.H. at 73. He contends that,
because the minutes state only “mentioned in this article,” the voters must
have chosen not to condition discontinuance on action from the Town of
Newport.

       Casagrande urges us to adopt a very constrained interpretation of the
phrase “mentioned in this article,” thereby terminating the public’s right to
travel on Page Hill Road. This is in derogation of the principle that town
meeting votes are to be “liberally construed.” McMahon, 104 N.H. at 220.
Based upon our review of the meeting minutes and Article 11, we are not
persuaded that the town meeting intended to unconditionally discontinue Page
Hill Road. There is a “strong presumption against discontinuance,”
Blagbrough, 155 N.H. at 37, and Casagrande has the burden to prove
discontinuance by clear and satisfactory evidence. Id. Therefore, because the
town meeting record is, at best, ambiguous as to whether the voters intended
to incorporate the condition precedent into the approved warrant article, we
conclude that Casagrande has not met his burden.

                                                  Affirmed.

     DALIANIS, C.J., and HICKS, LYNN, and HANTZ MARCONI, JJ.,
concurred.




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