Adams v. Bradshaw
1991 N.H. LEXIS 131, 599 A. 2d 481, 135 N.H. 7 (1991)
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Rule of Law:
A property owner's right to connect to a municipal sewer system is a revocable license, not a vested property right, and a municipality may discontinue the service for cause, such as abating a nuisance, without it constituting an unconstitutional taking that requires just compensation.
Facts:
- In 1932, the Town of Monroe built a sewer system to service approximately fifty properties in its village area.
- The system collected raw sewage and discharged it, untreated, directly into the Connecticut River.
- The Town was notified that its state and federal permits to pollute the river would expire on July 1, 1988, and would not be renewed.
- After being informed that a new wastewater treatment facility could not be constructed before the deadline, the Town's citizens voted in February 1989 to completely abandon the sewer system.
- The townspeople also voted to use a capital reserve fund to construct individual septic systems for Town-owned buildings.
- Several properties serviced by the sewer were found to be incapable of sustaining on-site septic systems.
Procedural Posture:
- Property owners (plaintiffs) sued the Town of Monroe and its selectmen in Superior Court, seeking to prevent the discontinuance of the town sewer.
- The Superior Court ruled that the Town's vote to discontinue the sewer was legal.
- The Superior Court also ruled that the discontinuance constituted inverse condemnation, which required the Town to pay just compensation to the property owners.
- The Superior Court enjoined the discontinuance pending any appeal or suit for compensation.
- Both the Town of Monroe (defendants/appellants) and the property owners (plaintiffs/appellees) appealed the Superior Court's decision to the New Hampshire Supreme Court.
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Issue:
Does a municipality's discontinuance of its public sewer service, which has become a nuisance by polluting a river, constitute an unconstitutional taking of the connected property owners' property, requiring just compensation?
Opinions:
Majority - Thayer, J.
No, a municipality's discontinuance of its sewer service for cause does not constitute an unconstitutional taking requiring just compensation. A municipality's authority to construct and maintain a sewer system means the system is municipal property, and ownership includes the right to control and dispose of it. The right granted to a property owner to connect to this system is in the nature of a revocable license, not a vested property right. This license can be revoked at any time for cause, such as when the sewer becomes a nuisance, as it did here by unlawfully polluting the Connecticut River. Citing extensive authority from other jurisdictions and legal treatises, the court holds that in the absence of a vested property right, there can be no taking under the state constitution, and thus no requirement for the Town to pay compensation for discontinuing the service.
Analysis:
This decision establishes a significant precedent in New Hampshire regarding the nature of municipal services, clarifying that access to a public sewer is a privilege, not a right. It gives municipalities considerable discretion to discontinue or alter infrastructure, particularly when facing environmental or public health mandates, without incurring liability for inverse condemnation. The ruling effectively shifts the financial burden of finding alternative solutions, such as septic systems, from the municipality to the individual property owners when a public system is decommissioned for cause. This strengthens municipal authority over its property and limits the scope of takings claims based on the withdrawal of public utilities.
