It is widely accepted that Rhode Island landowners should be awarded compensation for regulatory takings such as municipal utility construction that is performed on or under their property while the landowner maintains possession of the property. Furthermore, if a municipal or state actor takes entire possession of private land for utility or development purposes using eminent domain, then the landowner must be awarded just compensation for the taking. Although it occurs more rarely, landowners may also be entitled to compensation for utility lines that existed on their property before the owner took possession of the land. The Supreme Court of New Hampshire recently affirmed a lower court’s ruling that a landowner was entitled to relief for his claim that a pre-existing sewer line on his property was an unlicensed trespass for which the city had no easement or other legal right of possession.
The plaintiff in the recently decided case is a man who purchased a piece of property that was adjacent to a car dealership he owned in 2003. While formulating plans to build another car dealership on the new property in 2004, the plaintiff discovered that there was a sewer line underneath part of the property for which the city had no recorded easement. According to the facts outlined in the appellate opinion, the city was granted permission to construct the sewer line in 1967 by the previous owner of the property. However, it never obtained a written or legally enforceable permanent easement for the existence of the sewer line.
In 2008, the plaintiff sent a letter to the city, demanding the removal of the sewer line and revoking any permission or license for the sewer’s existence. The city refused to accommodate the plaintiff’s demands, and in 2010 he sued the city for trespass, demanding that the sewer line be removed from his property. The city responded to the complaint, arguing that they had gained a prescriptive easement, or at least a permanent license to maintain the sewer line, based on the funds expended in the construction and maintenance of the line, and their open and notorious use of the land since 1967. At trial, it was decided that the city’s arguments for an easement or permanent license were invalid, as the plaintiff rescinded any permissive use of the land one year after he purchased the property in 2004, and commenced legal proceedings six years later in 2010. Because the city did not adversely possess the land against the plaintiff for the 20 years required by statute, they had no legal right to maintain possession of the sewer line.