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Legally Speaking – with Bob Mionske: Whose road is it anyway?

Dear Bob,The three highest roads in New England all run on public land. However,the roads are operated by private entities that do not allow bicycles:1. Mount Washington Auto Road, Glen, New Hampshire2. Mount Mansfield Auto Toll Road, Stowe, Vermont3. Mount Equinox Skyline Drive, Manchester, VermontTwo of them (Mount Mansfield and Mount Equinox) do allow motorcycles.Might there be any basis to challenge this?SW,MassachusettsDear SW,First of all, thank you for your help in digging up some importantfacts that made an answer possible. After starting my research, I discoveredthat there was no

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By Bob Mionske

Mt. Washington: Why not all the time?

Mt. Washington: Why not all the time?

Photo: Chris Milliman

Dear Bob,
The three highest roads in New England all run on public land. However,the roads are operated by private entities that do not allow bicycles:

1. Mount Washington Auto Road, Glen, New Hampshire
2. Mount Mansfield Auto Toll Road, Stowe, Vermont
3. Mount Equinox Skyline Drive, Manchester, Vermont

Two of them (Mount Mansfield and Mount Equinox) do allow motorcycles.Might there be any basis to challenge this?
MassachusettsDear SW,
First of all, thank you for your help in digging up some importantfacts that made an answer possible. After starting my research, I discoveredthat there was no blanket answer that covered all three roads, so thisweek, we’ll start with Mount Washington and in the next couple of monthstackle the two Vermont roads.

The Mount Washington Auto Toll Road is 8 miles long, running from thetown of Glen House on New Hampshire Highway 16 to the summit of the mountain,a state-owned park. Although it runs through a state park, the road andthe land under it are owned by a private company, as explained in an 1857case, Petition of the Mount Washington Road Company:

The petitioners are a corporation, created by an Act passedJuly 1, 1853 which empowered them to lay out a road “beginning in or nearthe Peabody River Valley, thence to the top of Mount Washington, and thenceto some point on the north-westerly side of said mountain, between thenotch of the White Mountains and Cherry Mountain.

This makes for a tough argument. Because the Mount Washington road is aprivate road on private land, it would appear to be the equivalent of thedriveway in front of my house. If I don’t want bicycles to use my driveway,I am within my rights to prohibit them. True, the road is the only wayto get from Highway 16 to the summit, but as we have discussed in thiscolumn before, while you generally have a right to go from A to B, youdon’t have a right to get there by a specific route or method of travel.But read on…When the New Hampshire legislature granted a charter to the Road Corporationin 1853, it gave it the power of eminent domain, also known as condemnation.Eminent domain is the ability to force an unwilling landowner to sell toyou, with the price determined by a court. To build the road, the RoadCompany had condemned the land of one J. M. Thompson, who objected on thegrounds that the government cannot delegate the power of condemnation toa private company. The court said it could:

The power to take private property for public use may beexercised by the government through the means of a private corporation.The fact that the members have a pecuniary interest . . . will not preventthe State from using it to accomplish a public object.

There is a big qualification, however. Eminent domain can only be usedby the government to advance a public purpose:

If the enterprise was of a public character and the roadopen to public use, the legislature would have the power to authorize thetaking of private property to accomplish the public object.

Therefore, if the Mount Washington Road Company used its grant of eminentdomain to build its project, the resulting road must be a “public purpose.”The court’s language appears to suggest that in the case of a road, thismeans a “road open to public use.” But what does that mean, especiallyfor a toll road? As the court made clear a little later, it means thatyou can charge a toll, but that you must allow all comers:

As respects the general objects and use of the proposedroad, it is in no respects different from the numerous turnpike roads whichhave been made in this state under legislative grants . . . Such roads,being open to all travelers are public highways; and the circumstance thata toll is paid for the use of them does not deprive them of their publiccharacter . . . a turnpike road is a public highway, differing from freeroads only in the manner of use. All citizens may use a turnpike on conditionof paying the established toll.

Is it possible that with the changing times and changing circumstances,the Road Company simply felt it better to start prohibiting certain classesof users? In an 1860 case, Downing v. Mount Washington Road Company,the court determined that the Mount Washington Road Corporation was strictlyconfined by the terms and conditions of its legislative charter, and couldnot add new terms and conditions at its pleasure:

This charter confers the usual powers heretofore grantedto turnpike corporations, and no others . . .It may be safely assumed thatthe powers which have not heretofore been found necessary, and  havenot been claimed or exercised under such charters, are not to be consideredgenerally as incidentally granted.

Translation: Once required to accept all comers, always requiredto accept all comers.To be more precise, as I read it, if the legislature told the Road Companyin 1853 that they had to treat their road as a public toll road, that’sfinal until the legislature says differently. The Mount Washington AutoToll Road cannot use the excuse that it is a private road to do anythingthey want with it, because it’s not a private road! Except for the factthat they can charge a toll, it’s just as public a road as State Highway16 that connects to it.Okay, this leads to the next problem. We know that a state can prohibitbicycles on certain public roads if it has a “rational basis” for doingso. However, as our correspondent S.W. points out, public roads in NewEngland with similar characteristics are open to bicycles. Mount Greylockin Massachusetts has 15 percent pitches in places—some in turns, and MountAscutney in Vermont and Cadillac Mountain in Maine are comparable. Moreover,a quick review of New Hampshire case law indicates that the state has historicallyfollowed an inclusive policy towards use of the road, even as far backas 1857, in Graves v. Shattuck, where the court stated that theroads of New Hampshire . . .

Are designed and constructed for the general convenienceof mankind, to be used for all those purposes to which from the earliestperiod of their construction they have been accustomed to be appropriatedand it cannot be a nuisance for anyone to use them as they have ordinarilybeen used.

New Hampshire, with its libertarian tradition, frowns on group exclusions,as the State Supreme Court made clear when it threw out a City of Concordordinance requiring the licensing of all truckers and teamsters in Statev. Moore (1940):Relief from highway congestion may not be accomplished by unfair ordiscriminatory measures. While the use of the highways is a privilege,that privilege may not be granted arbitrarily and bestowed at will andpleasure as a favor to some group of  travelers while imposing a deprivationof use to others.And this includes cyclists, as North Hampton found out in 1903 whenit tried to argue that wheelwoman Sally Hendry was not a legitimate roaduser:

We see no reason why the fact that the plaintiff was ona bicycle, instead of on horseback or on foot pushing her bicycle, shouldpreclude her recovery. Common sense rejects this distinction . . . thebicycle is recognized by the Public Policy of New Hampshire as a legitimatemethod of traveling upon the highway, and that it is in common use forthat purpose with general consent.

So where do we stand?1)  While the Mount Washington Auto Road is a privately-ownedroad on private land, its owners cannot treat it as a private driveway.The original legislative grant given to its developers allowed them touse eminent domain, and condemnation can only be used to acquire land fora public purpose. New Hampshire courts have said that for a turnpike, “publicpurpose” equals “public road plus toll.”2)  Although it is still possible to banish cyclists froma public road if there is a “rational basis” for doing so, the traditionin New Hampshire seems to discourage prohibiting entire groups of usersfrom access to the roads, and as I read the cases, the criteria New Hampshirecourts apply is not the more typical efficiency argument (“would banningbicycles promote more efficient use of the roadway?”) but a stricter testbased on the law of nuisance (“does bicycle use unreasonably interferewith the reasonable use of the roadway by others.?”)The actual procedure for challenging the ban, and the full applicationof New Hampshire law, are things that would require a New Hampshire licensedattorney to work out, but from my research I really think there may bea fighting chance.
Good Luck
(Research and drafting provided by Bruce Epperson J.D.)

Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.