July 23, 2008
by Ed Naile
CNHT has a request from some of the 16 homeowners and taxpayers situated on a small peninsula on a lake in Milton for some help with an odd threat to their right to access their property. Here goes:
The homeowners received a letter dated 11/29/07 from New Hampshire Northcoast (NHN), a railroad, stating that according to their information the 200’ road that leads from a public highway to the peninsula and in the process crosses their train tracks, is a “private way.” The company does not provide any proof that this 200’ of paved road, the only access to the peninsula, also known as Little America, is “private” – proving something like this can become a sticky wicket in jolly old New England.
Next, the company offers the suggestion that the homeowners get liability insurance to cross NHN tracks. Remember that recently, just up the tracks from Little America, two teenage girls were run over by a train while laying across the tracks getting a sun tan. The NHN letter states that Little America is required to “document their rights” to cross the tracks with a contract which typically includes insurance.
NHN sends a copy of a state law, RSA 373:10, which if read objectively has no requirement for Little America to do anything. The railroad also sent a suggested insurance policy format.
Nice try, but Little America ain’t buying. They have deeds with rights of way over those tracks that go back to the 1940’s at least.
Next NHN sends a follow up letter on 5/29/08 stating that NHN will have no alternative but to close the crossing as of August 1, 2008. NHN also claims once more that the street in question, Ohio Street, is private. Once again no proof of a vote by the town or any other evidence Ohio St. is private.
This is where CNHT comes in.
I went to the Milton Selectmen’s meeting two weeks ago, a two hour drive, and let them have a Right to Know request for the deeds to the property involved. They complied and shazaam, it turns out the land on which Ohio Street is situated is owned by (drum roll please)…the State of New Hampshire!
Now readers, you’re an enlightened bunch, here are some other facts and laws.
– Ohio Street is paved – done so by owners years ago
– Little America had deeded rights of way.
– Little America has public water and the Town has water facilities on the peninsula.
– The town has been plowing the road for a long time.
– The land is owned by the State of NH.
– Anyone is allowed and has always been allowed to use Ohio Street as a public way.
373:1 Facilities. – It shall be the duty of every railroad to provide suitable crossings, stations and other facilities for the accommodation of the public, and suitable gates, crossings, cattle passes and other facilities for the accommodation of persons whose lands are divided, or are separated from a highway, by a railroad.
373:6-a Private Crossings Used by Public. – Whenever it shall appear, after notice and hearing held by the department of transportation upon its own motion or upon petition of any interested party, that an existing grade crossing is being used as a public highway and the adjacent approach or approaches thereto are maintained for use in a manner similar to a public highway, the department of transportation may require the same to be laid out, constructed and protected, and the costs thereof apportioned in accordance with the provisions of this chapter provided that the railroad shall not be charged with any of the said costs.
373:10 Railroad Signs, Gates and Other Protection. – Every railroad shall construct, or improve, and operate and maintain at every grade crossing of its railroad with another railroad or highway such warning signs, gates or other protection; it shall so regulate the speed of its trains across any grade crossing and it shall give such appropriate warning of the approach of its trains to any grade crossing as the department of transportation, after notice and hearing, may find necessary in the interest of safety of the railroad or of the public; provided, however, that cost of constructing or improving such warning signs, gates or other protection shall be apportioned in accordance with the provisions of RSA 373:3. The railroad shall maintain signs, signals, gates or other equipment installed within the limits of its right of way, after the installation thereof.
And my favorite: Closing of Highway Crossings Section 373:24
373:24 Service of Orders. – In the case of a private crossing, such order shall be served upon the railroad and the landowner affected, or his legal representative. In the case of public crossings, service shall be made upon the railroad, the clerk or clerks of the towns directly served by such crossing, and, in addition, the order shall be published in a newspaper having general circulation throughout the county where such crossing is located.
Source. 1935, 110:3. RL 299:41. 1951, 203:58 par. 24, eff. Sept. 1, 1951.
If on August 1, 2008 the railroad company, NHN, does indeed close the access to 16 private homes along with the town water facilities without first going through the owner, the State of NH, the process of DOT hearings, and notice and agreement of the Town of Milton they need to have their heads examined.
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