Who Can Enforce Trespass Rights on a Private Road? The Fee Owner, Says the NH Supreme Court

Can a landowner sue for trespass when a neighbor uses a private road without permission—even if a homeowners’ association is responsible for maintaining the road?  According to the New Hampshire Supreme Court, the answer is yes. In Spain v. Bowles, the Court held that the owner of the land “underneath” the easement retains the right to exclude unauthorized users, regardless of the existence of a road maintenance agreement or association.

Background: A Private Road, a Broken Stone Wall, and a Dispute Over Access

In 2017, Lyn Spain and Dean Gullage purchased a lot on Millie’s Way in Dunbarton. Their deed subjected them to the Millie’s Way Maintenance Agreement and Association, which governs upkeep of the private road. Their lot also included the fee “underneath” the portion of Millie’s Way in question.

The defendants—James Bowles and the Batchelders—owned an adjacent lot that abutted Millie’s Way at the rear. Their property could be accessed without using Millie’s Way, but they had long used a gap in a stone wall to reach the road for various purposes, including driving, transporting hay, and operating equipment.

Bowles and Batchelder had no written easement and were not members of the Maintenance Association. Despite multiple requests and a cease-use letter from association members, the defendants continued to use Millie’s Way. In 2021, Spain and Gullage filed suit in superior court seeking declaratory and injunctive relief, along with damages for trespass.

Superior Court Ruling: No Easement, and Yes, the Plaintiffs Had Standing

After a bench trial, the superior court ruled for the plaintiffs on all fronts:

• Standing: The court rejected the defendants’ argument that only the Maintenance Association could sue. The court found that the plaintiffs, as fee owners of the portion of Millie’s Way in question, retained the right to exclude unauthorized users—even if the Association managed road maintenance.

• Easement Claim: The court found no evidence of a recorded easement and rejected the defendants’ claim that a 1989 planning board meeting had created access rights. At most, the defendants had a license from the prior owners, which terminated when the plaintiffs purchased the property.

The court ordered the defendants to stop using Millie’s Way.

Supreme Court Order: Affirmed on All Grounds

The New Hampshire Supreme Court affirmed the trial court’s findings and conclusions, addressing the defendants’ two primary arguments:

1. Standing to Sue

The defendants argued that the Maintenance Association—not individual members—controlled access to Millie’s Way. They emphasized that the association required a two-thirds vote to act and had not voted to authorize the lawsuit.

The Supreme Court disagreed. It found that the Maintenance Agreement governed upkeep, not ownership. The plaintiffs owned the land beneath Millie’s Way and therefore retained the right to bring a trespass action. The Court affirmed that fee ownership includes the right to exclude unauthorized users.

2. No Easement for the Defendants

The defendants also argued that the town planning board, in a 1989 hearing, had granted them permission to build a driveway off Millie’s Way. They treated the meeting minutes as the functional equivalent of an easement.

The Supreme Court dismissed this argument, finding no recorded document granting such rights. It emphasized that easements must be granted by deed or similar instrument and that meeting minutes—even if memorializing an informal discussion—do not meet this standard.

Key Takeaways

• Fee ownership matters: Even when a homeowners' association manages a private road, the underlying fee owner retains standing to sue for trespass.

• Planning boards do not create easements: A planning board’s verbal or informal assurance—without a recorded instrument—will not create an enforceable easement.

Spain v. Bowles (N.H. Sup. Ct. Order, June 24, 2025) (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority, but it may provide guidance on how a New Hampshire court might rule if presented with similar facts.)

For assistance with real estate, easements, private roads, or civil litigation, please contact Alfano Law at (603) 856-8411 or by filling out our Contact Form.  The firm offers free or low-cost initial consultations for most matters.