Introduction

This commentary analyzes the New Hampshire Supreme Court’s June 24, 2025 order in Lyn Spain & a. v. James Bowles & a. (No. 2023-0660). The decision affirms a Superior Court injunction prohibiting neighboring landowners from using a private subdivision road, Millie’s Way, where they lacked any recorded access rights. The case squarely addresses two recurring questions in private-road and subdivision practice:

• Whether the fee owners of land underlying a private road retain standing to bring trespass and exclusion claims when they participate in a road maintenance association and the easement for the road is “assigned” to that association; and
• Whether municipal planning board meeting minutes or approvals, standing alone, create a private easement for abutters.

The plaintiffs, Lyn Spain and Dean Gullage, own 30 Millie’s Way (Lot F5-2-3) in Dunbarton, a lot within a subdivision served by the private road Millie’s Way. Their deed obligated them to participate in the Millie’s Way Maintenance Agreement and Association, which allocates responsibility and funds for plowing, sanding, salting, and leveling the road.

The defendants, James Bowles, Deirdra Batchelder, and Steven Batchelder, own property abutting Millie’s Way but have alternative access to their land; they historically used a break in a stone wall at the rear of their property to enter from Millie’s Way. They had no written grant of access, were not members of the Maintenance Association, and used the road for activities including vehicular access, moving storage containers, and transporting large hay bales.

After informal requests and an association letter failed to stop the use, the plaintiffs sued for declaratory judgment, injunctive relief, and trespass. Following a bench trial, the Superior Court rejected the defendants’ standing challenge (that only the Association could sue) and found no easement in the defendants, concluding instead that any prior permission was merely a revocable license that terminated upon the plaintiffs’ purchase. The court ordered the defendants to cease using Millie’s Way. On appeal, the Supreme Court affirmed.

Summary of the Opinion

The Supreme Court affirmed the injunction and summary order under Sup. Ct. R. 20(3), holding:

• Standing: The Maintenance Agreement concerns roadway maintenance and does not displace or vest exclusively in the Association the right to control access or to sue trespassers. As fee owners of the land underlying Millie’s Way, the plaintiffs retain the right to exclude unauthorized users and to bring trespass claims. The Agreement’s “two-thirds vote” provisions relate only to amending or suspending maintenance responsibilities.
• No Easement for Defendants: The defendants have no easement to use Millie’s Way. Planning board minutes from a 1989 subdivision hearing—stating that if a subdivision passed, Bowles could “put a driveway in”—do not constitute a recorded instrument creating a private easement. The record contained no deed, recorded easement agreement, or recorded plan expressly granting the defendants an easement. The trial court’s finding that any prior use rested on a mere license—which terminated when plaintiffs took title—stood unchallenged by any adequate contrary evidence.
• Disposition: The order enjoining defendants from using Millie’s Way is affirmed. The Court declined to discuss remaining arguments as they did not warrant further consideration.

Analysis

Precedents Cited and Their Role

• Gaucher v. Waterhouse, 175 N.H. 291 (2022): Provided the appellate framework: deferential review of factual findings; de novo review of legal rulings and application of law to facts. The Court emphasized that it asks not how it would have ruled but whether a reasonable person could reach the same decision on the evidence.
• Village Green Condo. Ass’n v. Hodges, 167 N.H. 497 (2015): Cited to underscore that joint users of an easement share maintenance obligations. This supports reading the Maintenance Agreement as an allocation of maintenance responsibilities—not as a reallocation of ownership or exclusion rights.
• Burke v. Pierro, 159 N.H. 504 (2009): Invoked to reaffirm that fee owners retain the right to exclude trespassers. Participation in a maintenance regime does not “vitiate” the fee owner’s right to exclude unauthorized users of the private road.
• Bellevue Props. v. 13 Green St. Props., 174 N.H. 513 (2021): Defendants relied on Bellevue’s “bundle of sticks” notion—i.e., that property rights can be limited—to argue plaintiffs lacked authority to bar access. The Court rejected that application, noting plaintiffs owned the fee underlying Millie’s Way and, therefore, had standing to sue.
• Carlson, Tr. v. Latvian Lutheran Exile Church of Boston and Vicinity Patrons, 170 N.H. 299 (2017): Clarified that easement holders (dominant estate) generally lack standing to bring possession-based actions like trespass without the fee owner. This distinction reinforced that the fee owner—not merely the easement holder or an association—has the possessory interest to exclude trespassers.
• Low v. Streeter, 66 N.H. 36 (1889): Noted that a right-of-way does not convey the soil or a possessory interest; consequently, an easement holder cannot even prevent a non-interfering trespasser. This venerable principle underscores why the fee owner’s role is central in trespass actions.
• Soukup v. Brooks, 159 N.H. 9 (2009): Confirmed that easements arise when a deed expressly conveys them and associated plans are recorded. The Court used Soukup to demonstrate what a valid easement looks like—highlighting the absence of such documentation here.
• Close v. Fisette, 146 N.H. 480 (2001): Explained that a signed and recorded access agreement can create a valid easement even if the referenced plan was not itself recorded. Again, this illustrates the need for a proper instrument—something the defendants lacked.
• Vogel v. Vogel, 137 N.H. 321 (1993): Cited in declining to address the defendants’ remaining arguments as insufficient to warrant further discussion.

Legal Reasoning

1) Standing and the Role of the Maintenance Agreement

The defendants’ central standing theory was that “exclusive control over the use and maintenance of Millie’s Way was deeded to the Association” and that, absent a two-thirds vote authorizing suit, individual lot owners could not bring trespass claims. The Court rejected this for two reasons.

• Textual focus of the Agreement: The Maintenance Agreement “relates to the improvement and maintenance” of Millie’s Way and establishes an Administrator to coordinate upkeep “to keep the roadway in a reasonable condition for vehicular traffic and to provide access to utility lines.” The Agreement allocates maintenance obligations and funding; it says nothing that displaces fee ownership or vests exclusive exclusion/enforcement power in the Association.
• Two-thirds vote provisions: The Court read these provisions as procedural mechanisms to amend or suspend maintenance responsibilities, not as a grant of exclusive authority over access or litigation decisions. Thus, the Association’s inaction or lack of a vote did not bar the fee owners from enforcing their possessory right to exclude unauthorized users.

Anchored in Burke and Carlson, the Court reaffirmed that the fee owner—here, the plaintiffs as underlying owners of the soil beneath Millie’s Way—has standing to bring trespass claims. Bellevue’s “bundle of sticks” concept did not negate this baseline possessory right in the circumstances presented.

2) No Easement Arising from Planning Board Minutes

The defendants argued that a 1989 planning board hearing—where, in response to James Bowles’s question, the board “stated yes” about putting in a driveway if the subdivision passed—created an easement. The trial court found, and the Supreme Court agreed, that:

• The minutes “do not discuss the Bowles family’s right to access Millie’s Way,” and the subdivision’s approval was not conditioned on granting access to the Bowles family.
• There was “no recorded instrument granting the defendants easement access.”

Drawing on Soukup and Close, the Court reiterated that easements are typically created by an express conveyance in a deed and/or a recorded easement agreement or plan. Informal statements in planning board minutes—absent a recorded grant—do not satisfy this requirement. The Court was “not persuaded” that the minutes, standing alone, constituted the “written instrument conveying the subject easement.”

Moreover, the Superior Court had found that any past use was pursuant to a revocable license granted by prior owners, which terminated when plaintiffs purchased their lot. While the Supreme Court did not need to rest its decision on the license finding, its affirmance leaves that determination undisturbed and underscores the doctrinal difference: a license is permission revocable at will (and typically terminates upon conveyance), whereas an easement is an interest in land that must be properly granted.

3) Appellate Posture and Deference

Applying Gaucher, the Court deferred to the trial court’s factual findings and credibility determinations after a one-day bench trial and reviewed legal questions de novo. It concluded the record supported the trial court’s rejection of both the standing challenge and the easement claim, affirming the injunction. Additional arguments were deemed unworthy of further discussion under Vogel, and the case was resolved via summary order under Sup. Ct. R. 20(3), signifying that no extended written opinion was necessary to clarify the law.

Impact

A. Private Roads and Maintenance Associations

• Enforcement remains with fee owners: Participation in a maintenance association and allocation of maintenance duties do not strip fee owners of their right to exclude trespassers or their standing to sue. Associations cannot be used as a shield by unauthorized users to block fee owners’ enforcement actions.
• Association procedures do not control access rights: Internal voting thresholds for maintenance decisions do not determine who may enforce access restrictions against third parties. Unless an instrument expressly transfers enforcement rights or ownership interests, fee owners retain them.

B. Municipal Land Use Processes vs. Private Property Rights

• Minutes and approvals are not conveyances: Statements in planning board minutes—even if “clear and unambiguous”—do not create private easements without a corresponding recorded grant or deed language. Municipal approval processes must be distinguished from private-law conveyances.
• Practice pointer for boards and developers: If subdividers and boards intend cross-access or driveway rights benefiting third parties, those rights must be memorialized in recorded easement instruments or deed conditions. Reliance on meeting colloquy is legally precarious.

C. Litigation Strategy for Easement Holders

• Choose the right plaintiff and claim: Under Carlson, easement holders generally cannot bring possession-based claims like trespass without the fee owner. If access is being interfered with, consider claims tailored to easement interference or be prepared to join the fee owner.
• Document access rights: Longstanding use and informal permissions are vulnerable. Without a recorded instrument, courts are unlikely to recognize a permanent property interest.

D. Real Estate Transactions and Neighbor Relations

• Licenses vs. easements: Reliance on a neighbor’s permission (license) can end abruptly, including at conveyance. Parties needing reliable access should negotiate and record an easement.
• Due diligence: Purchasers and abutters should examine the registry of deeds for recorded easements. Absence of a recorded right is a red flag that continued use may be unlawful and enjoinable.

Complex Concepts Simplified

• Standing: A threshold question of who is legally entitled to bring a particular claim. In property cases, standing to sue for trespass usually lies with the party who holds a possessory interest in the land (typically the fee owner).
• Fee ownership (underlying fee): Ownership of the “soil” of the land itself. Even when others have use rights (e.g., an easement), the fee owner retains core rights, including the right to exclude non-authorized third parties.
• Easement: A nonpossessory property interest that allows use of someone else’s land for a specific purpose (e.g., right of way). It is typically created by deed or another recorded instrument; it “runs with the land.”
• License: Mere permission to do something on another’s land. It is revocable and generally terminates when the land is conveyed unless renewed. A license does not create an interest in land.
• Servient vs. Dominant Estate: The land burdened by an easement is the servient estate (owned by the fee owner); the land benefitted by the easement is the dominant estate (held by the easement holder). The dominant estate holder has use rights but not possession.
• Maintenance Agreement/Association: A contract among users allocating costs and responsibilities for upkeep of a private road. It does not, without more, transfer ownership or exclusive enforcement rights.
• Recorded instrument: A document filed in the registry of deeds (e.g., deed, easement agreement, plan) that gives public notice and defines property interests. Courts rely on these instruments to recognize durable property rights.
• Sup. Ct. R. 20(3) order: A procedural rule allowing the Supreme Court to decide a case by order rather than a full opinion when extended discussion is unnecessary; the order is still authoritative.

Conclusion

This order provides clear guidance for New Hampshire property owners, associations, practitioners, and municipal boards:

• Fee owners maintain the right to exclude unauthorized users from private roads even when they participate in maintenance associations; such agreements do not divest fee owners of standing to sue for trespass or to seek injunctive relief.
• Easements require proper conveyance, typically through recorded deeds or signed/recorded agreements. Planning board minutes or informal assurances are not substitutes for a recorded grant.
• Easement holders’ litigation posture is limited for possessory actions; if a trespass action is contemplated, include the fee owner or choose claims specifically tailored to interference with easement rights.
• Licenses are fragile: long-tolerated neighborly uses can end upon a property transfer, underscoring the need to formalize necessary access rights.

By affirming the injunction here, the Supreme Court reinforces a stable, record-based framework for private access rights: maintenance agreements allocate upkeep, not ownership; fee owners hold the core right to exclude; and durable easement rights arise from recorded instruments—not from municipal meeting minutes. The decision should reduce confusion in future disputes involving private roads, associations, and purported unrecorded access rights.