Maintenance vs. Improvement on Private Roads and Easements in New Hampshire
Private road maintenance agreements and easements often draw a distinction between maintenance and improvements. Maintenance may be permitted while improvements are not. In other situations, maintenance requires one level of approval while improvements require another. When disputes arise, courts must decide which category the work falls into. A recent New Hampshire Supreme Court order provides insight into how courts approach this issue in disputes involving private roads and easements in New Hampshire.
Background
A dispute arose between neighboring landowners in Concord who shared a thirty-foot strip containing a grassy area and driveway providing access to their homes. One lot owner also owned the land “under” the easement area and needed the easement to access their lot. Another lot owner held an easement allowing that owner to “pass and repass” over the easement area and prohibiting obstruction of any portion of it.
The easement holder planted decorative groundcover in the grassy portion of the easement area. The underlying landowner removed the plantings, and litigation followed.
First Case – Ornamental Groundcover Exceeds Scope of Easement
The Superior Court ruled decorative groundcover exceeded the scope of the easement because the easement allowed only travel over the easement area and the plantings served an ornamental purpose rather than facilitating passage. The Supreme Court affirmed the Superior Court’s ruling in a 2023 order.
Second Case – Maintenance vs. Improvement
The dispute resurfaced after the underlying landowner dug within the easement area and installed an irrigation system. In the first case, the Superior Court also entered the following order:
[The easement holders] have the right and the duty to maintain the easement so that it can be used for the purpose for which it was granted [i.e., the right to pass and repass]. Permitted maintenance is that necessary to prevent unreasonable interference with the enjoyment of the owner of the underlying land (here, the right to pass and repass). [I]t is ordered that maintenance of the portion of the easement at issue shall be performed by or at the direction of the owners of the easement only, for the purposes described.
The easement holder argued the prior order did not give the underlying landowner authority to install the irrigation system. The trial court ruled installation of the irrigation system constituted an improvement rather than maintenance, meaning the work did not violate the earlier order. The Supreme Court largely affirmed that ruling on appeal.
How New Hampshire Courts Define Maintenance and Improvement
In explaining the result, the Supreme Court relied on definitions drawn from earlier New Hampshire decisions. Maintenance refers to work performed to keep property operating and productive. Courts describe maintenance as repair and upkeep intended to preserve existing conditions. An improvement, by contrast, is an alteration or development of property intended to enhance value or improve usefulness for a particular purpose.
Applying those definitions, the Court concluded installation of an irrigation system altered the property and enhanced its utility. The project therefore qualified as an improvement rather than maintenance.
Other New Hampshire Examples
Several New Hampshire Supreme Court decisions illustrate the distinction between maintenance and improvements, even though they arose outside the context of private roads or easements. These examples help explain how courts later analyze disputes involving private roads and easements in New Hampshire.
In one case, installation of a decorative water fountain built into a funeral home wall qualified as an improvement because it permanently altered the building and enhanced its appearance and use. In another case, installation and upkeep of a porch railing at leased premises qualified as maintenance because the work involved ordinary care and upkeep rather than a structural change intended to alter the property’s function.
These decisions show the basic principle courts apply. Work intended to preserve existing conditions likely qualifies as maintenance. Work intended to alter property or enhance its use likely qualifies as an improvement.
Another Analogy – Maintenance of Public Roads Under New Hampshire Case Law and Its Relevance to Private Roads
New Hampshire courts also define maintenance in the context of public roads, often referred to as “highways.” Maintenance means keeping a road in a state of repair and preserving it from decline. The cases also show a practical floor for maintenance. Snow plowing alone does not qualify. Plowing allows winter travel, but it does not repair or preserve the road itself. Courts look for work such as repaving, patching, grading, or other repairs intended to prevent deterioration caused by weather and ordinary use. Evidence of both winter and summer work often demonstrates maintenance.
The same reasoning often applies when courts evaluate work performed on private roads and easements in New Hampshire. Work intended to preserve the road and keep it usable for travel likely qualifies as maintenance. Projects intended to change the road or add new features likely qualify as improvements. Understanding this distinction can help owners of property served by private roads in New Hampshire evaluate proposed work and avoid disputes before they arise.
Spear v. Waite, No. 2022-0063 (non-precedential order) (N.H. Aug. 24, 2023) and Spear v. Waite, No. 2025-0161 (N.H. Feb. 26, 2026) (non-precedential order). (Because the Court issued “orders” rather than “opinions,” the rulings have no precedential authority over other cases, but may provide guidance on how New Hampshire courts may approach similar issues in the future.)
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