Henniker landowner sues town water department
Lorin Mulligan poses for a portrait with the road that the town of Henniker built on her property as an access road to a water tank a couple of years ago over her left shoulder on September 23, 2013. Over her right shoulder is the trail that she cut through the woods that resembles what the land looked like previous to the road's creation. Mulligan is suing the town saying that they did not have the right to do that.
A dispute between a Henniker landowner and the town water department has turned to legal archaeology, as both parties dig up 19th century records to make their case before a jury in November.
Property owner Lorin Mulligan alleges Cogswell Springs Waterworks, the town-owned water department, cut a gravel road through her property to access a 350,000-gallon town water storage tank on a neighboring property without her permission.
The water department claims it has the right to access the tank by way of her land – and that both deeds and Mulligan herself had given the town permission to do so.
Soon a jury will have to consider a deed that dates back to 1894 as well as two very different accounts from both parties in a he-said, she-said dispute that has brought them to court.
Mulligan and her lawyer, Mark Hodgdon, appeared in Merrimack County Superior Court for a summary judgment hearing yesterday. They sat in the courtroom across from water Superintendent Norm Bumford and Henniker attorney Andrew Schulman as the judge listened to their back-and-forth over hotly disputed facts and muddled histories.
“It is clear that the town felt it had proprietary ownership over her land. It is not her job to give them more land,” Hodgdon said in the hearing yesterday. “It’s their job to pay for it.”
But the town’s objection to the summary judgement outlines the disjoint between Mulligan’s claims and those of the water department.
“Unfortunately, for all concerned, the case instead turns on differing accounts of decades of personal interactions,” the document states.
Mulligan bought approximately 22 wooded acres in 1990. She cleared part of the property with the help of family and friends, and then laid the foundations for what are now a house and a stable. The road that now runs through her woods is what she calls “a gravel scar” on the land where she lives with six dogs and eight horses.
“They literally bullied and bulldozed their way through my property,” she said in an interview.
The deed to Mulligan’s property, signed by a 19th century predecessor, allows the town to lay an underground water pipe from the neighboring storage tank through her land. That document also allows the town to enter Mulligan’s property to make repairs to the waterline – but not the tank. At the time, the water department was supposed to access the tank itself by way of another property and its deed.
Mulligan claims the town used that neighboring property only throughout the decades it maintained the water tank before she bought her land.
The town argues differently.
“In reality, since at least the 1950s, and likely since 1941 or even earlier, the only way the town accessed the water tank was by traversing the plaintiff’s property,” court documents filed by Henniker’s attorney state.
When Mulligan bought her land in 1990, a gravel driveway did travel along its edge to access a fraternity house then owned and used by New England College. The fraternity house is now abandoned, and Mulligan has also bought that smaller parcel.
She claims that road ended at the fraternity house, and no discernible path continued into the woods. Mulligan said she gave the town water department permission to drive to the end of the road and then hike up into the woods to access the storage tank.
In court documents, the town claims “there was not only a discernible trail but it was used for access to the tank by jeep.”
Mulligan said she gave Bumford and the town water department permission to build small culverts on her property to help with their hike to the tank when repairs were needed.
In 1998, the town asked permission to install an electrical conduit to the tank, and Mulligan said she agreed. In 2009, Mulligan said the town asked to bring more material onto her land to access the tank for significant repairs. But when she went out to see their work for the first time, she found a gravel road she claims she did not allow. The road now extends from the fraternity driveway all the way up through the woods to the edge of her property and the water tank.
“I was livid because they did not come to me and say, ‘We’d like to build a road,’” Mulligan said. “They just came to me and said, ‘We’d like to bring in some material.’ ”
The town, however, claims Mulligan’s allowances all along were permission enough to construct and use the gravel road.
“In this case, Mulligan now claims that the Town does not have an easement to cross her land to access the water tank or to maintain the dirt and gravel driveway,” Schulman wrote in his objection to her motion for summary judgement. “This contradicts her representations, by word and deed in 1998. It thus appears that Mulligan had her fingers crossed behind her back in 1998 and never intended to grant the Town anything other than a temporary license that could be revoked at any time for any reason.”
The landowner’s anger brought her before the judge in hopes of a clean ruling in her favor on summary judgment, but the parties will need to rehash most of what Schulman yesterday called “small, granular facts” before the jury in November.
“I don’t agree with some of the things the opposing counsel said,” Mulligan said after the hearing. “I’m hoping the people (in the jury) understand that municipalities just can’t take someone’s property.”
(Megan Doyle can be reached at 369-3321 or email@example.com or on Twitter @megan_e_doyle.)