Five years ago the New Hampshire legislature passed a law shutting down Northern Pass’s ability to use eminent domain. Now it needs to act as soon as possible to make it clear Northern Pass has no right to tear down people’s stone walls, fences and other property to build its transmission line.
Recognizing that the Northern Pass transmission line is not a typical utility transmission line – but rather a merchant energy venture intended to benefit the bottom line of Connecticut and Canadian companies Eversource Energy and Hydro Quebec – the legislature, with overwhelming bipartisan support, passed a bill in 2012 making it clear that eminent domain could not be used for a project like Northern Pass.
That action closed the door on one way Northern Pass could take private property away from people.
But there’s a backdoor way Northern Pass might still be able to take people’s stone walls, fences, trees, shrubs and even houses, and the legislature needs to close that door, too.
Northern Pass would like to bury some of its 192-mile high voltage transmission line under state roads. The state Department of Transportation has given Northern Pass preliminary approval to do that, with 50 conditions, including the line cannot be buried under the paved part of the roads and Northern Pass must provide a survey meeting NHDOT’s standards establishing the boundary lines of these roads.
As has been reported, Northern Pass still hasn’t produced the survey and many landowners believe the Northern Pass burial route actually passes through their private property, not the state road right of way. One way or another, those boundaries will probably be determined, and because of the legislature’s action five years ago, Northern Pass will not be able to tear down any property outside the state’s right of way.
But what about the people who have stone walls, fences and other property on land they have always believed they owned but it turns out the state owns the land? Can Northern Pass tear down those walls and fences?
There’s a long-established legal concept known as adverse possession. If person A has plainly and openly used person B’s land for more than 20 years, for a stone wall, for example, and person B never objected to that use, then person B can’t come along now and legally remove the stone wall.
Person B can’t, but the State of New Hampshire can. If NHDOT needed to widen Routes 18, 112 and 116 to make them safer for cars and trucks, it could take down someone’s stone wall or fence even if it’s been there for 30 years. It should be noted that stone walls deemed historic get special protections, but non-historic stone walls are fair game.
It’s not clear that a private company like Northern Pass can take advantage of the government’s exemption from the adverse possession doctrine and tear down someone’s fence or stone wall, even if NHDOT has given the company permission to bury its transmission line under the state’s right of way, but you can bet your house Northern Pass will take the position that it can do so with impunity.
The legislature should act swiftly when it returns in January to make it absolutely clear that Northern Pass has no right to tear down any privately-owned stone wall, fence, tree, shrub or other property.