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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

New Hampshire Water Council

No. 2018-0094

APPEAL OF TOWN OF LINCOLN

(New Hampshire Water Council)

Argued: November 28, 2018

Opinion Issued: June 7, 2019

Upton & Hatfield, LLP, of Portsmouth and Concord (Russell F. Hilliard

and Brooke Lovett Shilo on the brief, and Mr. Hilliard orally), for the petitioner.

Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant 

attorney general, on the brief and orally), for the respondent.

BASSETT, J. The petitioner, the Town of Lincoln, appeals an order of the 

New Hampshire Water Council upholding a decision by the respondent, the

New Hampshire Department of Environmental Services (DES), ordering the 

Town to repair the Pemigewasset River Levee, a fortified embankment with

granite block facing, located along approximately 1,700 feet of the 

northwesterly bank of the East Branch of the Pemigewasset River in Lincoln. 

The Water Council found that the Town was the owner of the levee pursuant to 

RSA 482:11-a (2013), and therefore was obligated under the statute to 

maintain and repair the levee. We reverse.

The record supports the following facts. In 1912, the Franconia Paper 

Company constructed the levee on company property along the Pemigewasset 
2

River. In 1959, the levee was damaged by a flood. At town meeting in March 

1960, the residents of the Town voted to approve a restoration of the levee, to

be performed by the United States Army Corps of Engineers. To facilitate the 

project, and in order to secure federal funding for the restoration under the 

Flood Control Act of 1936, the residents authorized the Town to enter into 

agreements with the Army Corps, and to “acquire any real estate interests”

necessary for the restoration project. In June 1960, the Town executed an

Assurance Agreement with the Army Corps (the Assurance), obligating the 

Town to 

(a) provide without cost to the United States, all lands, easements, 

and rights-of-way necessary for the construction of the project; (b) 

hold and save the United States free from damages due to the 

construction works; (c) maintain and operate all the works after 

completion in accordance with regulations prescribed by the

Secretary of the Army.

In order to satisfy these obligations to the Army Corps, and because the 

Town did not own the land or the levee, in July 1960 the Town entered into a 

Right-of-Entry Agreement (the REA) with the fee owner, the Franconia Paper 

Company. The REA granted to the Town and the United States the “right to 

enter upon the . . . lands to perform construction work of any nature necessary 

in the restoration of the [levee], and to enter upon said lands at any time to 

inspect the restored [levee] with a view to its proper maintenance and

operation.” The REA also provided that the Franconia Paper Company reserved 

for itself, and its successors and assigns, all rights in the land that would not 

interfere with those it had granted to the Town and the United States. 

Pursuant to these agreements, the reconstruction of the levee was done by the 

Army Corps.

In 1971, the Franconia Paper Company, then under a new corporate 

name, conveyed certain parcels of land to the Franconia Manufacturing 

Corporation by quitclaim deed. The deed provided that Franconia 

Manufacturing Corporation was taking the land subject to the rights previously 

granted to the Town and the United States, and provided that both the Town 

and the United States held easements enabling them to “enter the premises via 

the present access road or by whatever route is necessary and convenient at 

any time to inspect the restored flood control [levee] with a view to its proper 

maintenance and operation . . . .” (the 1971 deed). The 1971 deed also 

provided that

[t]he [Franconia Manufacturing Corporation], by accepting this 

conveyance covenants and agrees to assume and discharge the 

obligations of the [Franconia Paper Company] (assumed by the 

[Franconia Paper Company] by instruments executed . . . in 1961) 

to maintain the [levee] on the northerly bank of said East Branch 
3

as constructed by and under the supervision of the United States 

Army Engineers.

In 2011, the levee was severely damaged by Tropical Storm Irene. In 

2014 and 2015, DES inspected the levee and determined that it was a “dam in 

disrepair,” classifying it as a “high hazard [potential] dam.” See RSA 482:2, I, V 

(2013). In August 2015, DES issued a Letter of Deficiency to the Town listing

the levee’s defects and requesting that the Town bring the levee back into 

compliance. The Town responded to DES, stating that, although it was not the 

owner of the levee, it already had plans to complete the needed repairs. After 

the Town and DES failed to agree on how to proceed, DES ordered the Town to 

repair the levee, concluding, without express analysis, that the Town was the 

owner of the levee. The Town appealed the order to the Water Council.

The Water Council upheld the DES decision in an order on the parties’ 

cross-motions for summary judgment, interpreting RSA 482:11-a, which 

provides that “[t]he owner of a dam shall maintain and repair the dam so that it 

shall not become a dam in disrepair.” RSA 482:11-a. Although the Water 

Council found that the Town was not the fee owner of the levee, and had not 

acquired fee ownership through either the process of dedication and 

acceptance, see Hersh v. Plonski, 156 N.H. 511, 514-16 (2007), or a vote of the 

selectmen pursuant to RSA 41:14-a (2012), it also found that the Town was the 

owner of the levee within the meaning of RSA 482:11-a. The Water Council 

stated that

the Town’s argument that it is not the owner of the dam within the 

meaning of RSA 482:11-a, and therefore not subject to DES 

regulatory action is rejected. The Town holds an easement interest 

in the dam that is sufficient for purposes of imposing on [the Town] 

the repair and maintenance requirements of [RSA 482:11-a].

The Water Council denied the Town’s motion for rehearing, and this appeal 

followed.

RSA chapter 541 governs our review of Water Council decisions. See

RSA 21-O:14, III (2012). The party seeking to set aside the Water Council’s 

order bears the burden of proof “to show that the [order] is clearly 

unreasonable or unlawful.” RSA 541:13 (2007). “[A]ll findings of the [Water 

Council] upon all questions of fact properly before it shall be deemed to be 

prima facie lawful and reasonable.” Id. “[T]he order or decision appealed from 

shall not be set aside or vacated except for errors of law, unless the court is 

satisfied, by a clear preponderance of the evidence before it, that such order is 

unjust or unreasonable.” Id. “In reviewing the Council’s findings, our task is 

not to determine whether we would have found differently or to reweigh the 

evidence, but, rather, to determine whether the findings are supported by 

competent evidence in the record.” Appeal of Cook, 170 N.H. 746, 749 (2018). 
4

We review the Water Council’s rulings on issues of law de novo. See id.; RSA 

541:13.

The Town argues that the Water Council’s decision is clearly 

unreasonable or unlawful because the Town is not the “owner” of the levee 

within the meaning of RSA 482:11-a. The Town does not argue that, in order 

to be an “owner” for the purposes of RSA 482:11-a, the person or entity must 

be the fee simple owner of the property. Rather, the Town contends that the 

word “owner” means one who has at least “legal, rightful, or equitable title” to

the property at issue. The Town asserts that it does not fall within this 

definition because its only property interest in the levee — the right of access

set forth in the REA — is insufficient to make the Town an “owner” within the 

meaning of RSA 482:11-a.

DES acknowledges that the Town is not the fee owner of the levee, yet it 

argues that fee ownership is not required by RSA 482:11-a. In support of this 

position, DES offers two interrelated arguments. First, citing our recent 

decision in Appeal of Michele, 168 N.H. 98, 102-05 (2015), it asserts that this 

court “has already determined that an easement holder is an owner for 

purposes of RSA 482-A.” Second, DES contends that we should apply the 

definition of “owner” set forth in Michele, and that, if we do, the Assurance, the 

REA, and the 1971 deed constitute a “series of transactions” sufficient to make

the Town an owner within the meaning of RSA 482:11-a. The Town contends

that Michele is distinguishable and does not control. For the reasons set forth 

below, we agree with the Town.

Resolution of the question of whether the Town is an “owner” within the 

meaning of RSA 482:11-a requires that we engage in statutory interpretation. 

“Statutory interpretation is a question of law, which we review de novo.” 

Petition of Carrier, 165 N.H. 719, 721 (2013). “In matters of statutory 

interpretation, we are the final arbiter of the intent of the legislature as 

expressed in the words of a statute considered as a whole.” Id. “We first look 

to the language of the statute itself, and, if possible, construe that language 

according to its plain and ordinary meaning.” Id. “We interpret legislative 

intent from the statute as written and will not consider what the legislature 

might have said or add language that the legislature did not see fit to include.” 

Id. “The legislature is not presumed to waste words or enact redundant 

provisions and whenever possible, every word of a statute should be given 

effect.” Garand v. Town of Exeter, 159 N.H. 136, 141 (2009) (quotation 

omitted). “We construe all parts of a statute together to effectuate its overall 

purpose and avoid an absurd or unjust result.” Carrier, 165 N.H. at 721. 

“Moreover, we do not consider words and phrases in isolation, but rather 

within the context of the statute as a whole.” Id. “This enables us to better 

discern the legislature’s intent and to interpret statutory language in light of 

the policy or purpose sought to be advanced by the statutory scheme.” Id.
5

RSA 482:11-a provides that “[t]he owner of a dam shall maintain and 

repair the dam so that it shall not become a dam in disrepair.” RSA 482:11-a. 

The legislature did not define the term “owner.” See RSA 482:2 (2013). “When 

a term is not defined in the statute, we look to its common usage, using the 

dictionary for guidance.” Michele, 168 N.H. at 102 (quotation omitted). 

Webster’s Third New International Dictionary defines “owner” as “one that has 

the legal or rightful title whether the possessor or not.” Webster’s Third New 

International Dictionary 1612 (unabridged ed. 2002). Relatedly, it defines 

“ownership” as “the state, relation, or fact of being an owner: lawful claim or 

title.” Id. These are the same definitions we looked to in Michele, where we 

were presented with a similar question: whether the easement holders in that 

case could be considered owners for the purposes of the statute at issue in that 

case, RSA 482-A:11, II (2013). Michele, 168 N.H. at 101. 

In Michele, the easement holders wished to install a seasonal dock in 

water adjacent to the shoreline property over which the easement holders had 

an easement. Id. at 100. The easement at issue in Michele provided that the 

holders of the easement “shall have the right . . . to the exclusive use of said 

parcel of shore frontage for whatever purposes they may desire.” Id. at 100. 

The easement holders applied to DES for a permit to build the dock, which was

granted. Id. On appeal, the landowners argued that DES lacked the authority 

to issue the permit to the easement holders because only fee owners could 

apply for a permit. Id. at 101. The landowners primarily based their argument 

on RSA 482-A:11, II, which provides that “‘[b]efore granting a permit under this 

chapter, the department may require reasonable proof of ownership by a 

private landowner-applicant.’” Id. at 101-02 (quoting RSA 482-A:11, II 

(emphasis added)). Because the statute did not define “ownership,” we looked 

to the dictionary definitions set forth above. Id. at 102-03. We acknowledged 

that these are broad definitions, but, because we “[saw] no reason . . . to limit 

the meaning of the terms when the legislature did not see fit to do so,” we 

concluded that “ownership,” as used in RSA chapter 482-A, was not limited to 

fee ownership, and did not require possession. Id. at 103. We further 

concluded in that case that “parties who hold title to a shoreline easement, 

such as the [easement holders],” were “owners” under RSA 482-A:11, II. Id.

The facts in this case differ significantly from those in Michele. Most 

importantly, the scope of the easement in this case is far narrower than the one 

at issue in Michele. In Michele, the easement at issue was expansive, providing 

the holders of the easement with the legal right to the “exclusive use” of the 

subject land “for whatever purposes they may desire.” Id. at 100. We observed 

that “an easement is a nonpossessory right to the use of another’s land,” and 

that “a grantee takes by implication whatever rights are reasonably necessary 

to enable it to enjoy the easement beneficially.” Id. at 103 (quotations omitted). 

We concluded, therefore, that “anyone who could build a dock under the 

common law [could] apply for a dock permit,” and that, “[g]iven the broad grant 
6

of the . . . easement,” the easement holders “[had] a sufficient ownership 

interest to obtain a dock permit under RSA chapter 482-A.” Id. at 104.

Here, the easement is non-exclusive and far narrower in scope. Under 

the REA, the Town and the United States have only a limited right “to enter 

upon [the] lands at any time to inspect the restored [levee] with a view to its 

proper maintenance and operation,” whereas the Michele easement gave the 

easement holders “exclusive use” of the land “for whatever purposes they may 

desire.” Michele, 168 N.H. at 100. The expansive easement in Michele granted 

exclusive rights that are tantamount to fee ownership — with all of its 

incidental benefits and burdens. In contrast, the easement at issue in this 

case is both limited and non-exclusive — the fee owner specifically retained 

ownership and control over the levee. Accordingly, the facts of this case are 

distinguishable from Michele, and do not lend support to the argument that 

the Town is an “owner” within the meaning of RSA 482:11-a. 

Nor does the rationale of Michele support the argument that the 

ownership obligations of RSA 482:11-a should be imposed upon the Town. In 

Michele, it was crucial to our analysis that the right to apply for a dock permit 

was reasonably necessary for the easement holders to enjoy the full scope of 

their easement. See id. at 103. Here, that crucial logical link is absent — the 

Town is not seeking rights that are reasonably necessary to enjoy its easement

and protect its citizens and property; it already holds those rights under the 

REA. Rather, DES flips the logic of Michele on its head in seeking to impose

upon the Town additional ownership obligations under RSA chapter 482. 

Although DES contends that these obligations “are fully within the scope of the 

Town’s interest,” we disagree.

The REA granted only limited rights to the Town and the United States

“to enter upon said lands at any time to inspect the restored [levee] with a view 

to its proper maintenance and operation.” The REA did not place any 

obligations on the Town; rather, it granted rights to both the Town and the 

United States, reserving for the owner all other property rights that would not 

interfere with those it had granted to the Town and the United States. 

In 1960, the Franconia Paper Company had the capacity to transfer fee 

ownership — with its attendant rights and obligations — to the Town or any 

other party, but it did not do so. Rather, the Franconia Paper Company chose 

to retain ownership and control of the levee, and regarded the levee restoration 

as a benefit conferred upon it by the United States and the Town. Indeed, the 

REA recites the restoration of the levee as the consideration received by the 

company in exchange for granting the access rights to the Town and the United 

States. Further, in 1971, when the Franconia Paper Company, then operating 

under a different name, did transfer fee ownership, the new owner explicitly 

agreed “to assume and discharge the obligations of the [Franconia Paper 

Company] . . . to maintain the [levee] on the northerly bank of said East 
7

Branch as constructed by and under the supervision of the United States Army 

Engineers.” Thus, it is evident that the Franconia Paper Company did not 

understand or intend that, simply by entering into the REA, it had shifted the 

obligation of ongoing levee repair and maintenance to the Town. See Arcidi v. 

Town of Rye, 150 N.H. 694, 703 (2004) (observing that, in order to determine 

the scope of an easement, we consider the parties’ intent in light of the 

surrounding circumstances at the time the easement was granted).

In support of its position, DES contends that, in the Assurance, the 

Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and 

repair.”1 However, the fact that the Town undertook certain maintenance 

obligations in the Assurance does not mean that the additional obligations of

“ownership” under RSA 482:11-a can or should be imposed upon the Town. In 

the Assurance, a contract that, by its terms, does not convey a property 

interest, the Town agreed with the Army Corps to maintain and operate the 

levee “in accordance with regulations prescribed by the Secretary of the Army.”

The Town did not assume ownership of the levee, nor did it agree to maintain 

and operate the levee in accordance with state regulations applicable only to 

“[t]he owner.” RSA 482:11-a. Thus, given the Town’s limited property interest

under the REA, and the Town’s limited contractual agreement with the Army 

Corps, the rationale in Michele does not support imposing the additional 

obligations of ownership on the Town.

Michele is also distinguishable because it involved a different statute and 

regulatory regime than is at issue in this case. Unlike RSA 482-A:11, II, the 

statute at issue in Michele, which applies to “a private landowner-applicant”

seeking a wetlands permit, the statute at issue here, RSA 482:11-a, applies 

only to “[t]he owner” of a dam. If the legislature had intended to place the 

obligations of RSA 482:11-a on a broader class of persons or entities, it knew 

how to do so. See, e.g., RSA 482:11, I (2013) (using the terms “owner or 

contractor”); RSA 482:9 (2013) (using the term “person”).

 

Nonetheless, the dissent argues that the statutory purpose, to lessen 

flood damage and enhance public safety, supports a broad construction of the 

word “owner” under the statute. See RSA 482:1 (2013). However, we must 

observe, as we did in Michele, that there is no evidence that the purpose of RSA 

482:11-a is “to change the balance of property rights between fee owners and 

easement holders from what it was under the common law.” Michele, 168 N.H. 

at 103. In essence, the dissent would allow a broad statutory purpose to 

empower DES to impose new ownership obligations on the holder of a limited 

easement, thereby altering the balance of property rights between the Town

 

1 The Town contends that DES is impermissibly asking the Court to enforce the terms of the 

Assurance — an agreement to which DES is not a party. However, DES, in its brief and at oral 

argument, explicitly disclaims that it is seeking to do so. Rather, DES is using the terms of the

Assurance to support its statutory argument.
8

and the fee owner(s) — to say nothing of the potential impact on landowner 

liability. We have cautioned before that “‘it frustrates rather than effectuates 

legislative intent simplistically to assume that whatever furthers the statute’s 

primary objective must be the law.’” State v. Dor, 165 N.H. 198, 205 (2013) 

(quoting Rodriguez v. United States, 480 U.S. 522, 526 (1987) (per curiam)); 

see also Adoption of T.K.J., 931 P.2d 488, 492 (Colo. App. 1996) (observing 

that “liberal construction does not permit a court to rewrite the statute”). 

Therefore, absent evidence that the legislature intended such a result, we 

believe it would be error to allow the broad statutory purpose to override the 

specific language chosen by the legislature, which places these obligations only 

on “[t]he owner.” RSA 482:11-a; see also Carrier, 165 N.H. at 721 (observing 

that “[w]e interpret legislative intent from the statute as written”).

Moreover, in Michele, we observed that the regulations promulgated by 

DES under RSA chapter 482-A were consistent with our holding because the 

regulations contemplated that “only applicants for major projects need be the 

fee owner; applicants for minor projects, like the [easement holders’] dock, may 

have a lesser ownership interest.” Michele, 168 N.H. at 104 (emphasis added). 

Here, the regulations promulgated under RSA chapter 482 do not contemplate 

different levels of ownership, and therefore do not support the position that the 

Town’s easement gives rise to “ownership” under RSA chapter 482. Moreover, 

the regulations under RSA chapter 482 imply that the Town’s property interest 

is not sufficient to be deemed “[t]he owner.” For example, one of the 

regulations states that “[i]n lieu of repairing or reconstructing a dam . . . the 

owner may” either “[r]emove the dam,” or “[b]reach or modify the dam.” N.H. 

Admin. R., Env-Wr 302.04(a). Neither of these options appears to be available 

to the Town, as they fall outside the scope of the Town’s right “to enter upon 

[the] lands at any time to inspect the restored [levee] with a view to its proper 

maintenance and operation.” (Emphasis added.) Thus, the statute and 

regulatory regime at issue here are distinguishable from Michele, and do not 

lend support to the argument that the Town’s limited access rights make it 

“[t]he owner” under RSA 482:11-a.

 

For these reasons, we agree with the Town that Michele does not control 

the outcome in this case. For the same reasons, a related argument advanced 

by DES necessarily fails. DES argues that through a “series of transactions,” 

namely the Assurance, the REA, and the 1971 deed, the Town acquired a 

sufficient ownership interest in the levee to be deemed an “owner” within the 

meaning of RSA 482:11-a. However, DES provides us with no case, statute, or 

other legal authority to support the notion that the contractual obligations set 

forth in the Assurance, when combined with the rights granted to the Town in 

the REA and the 1971 deed, are sufficient to establish ownership for purposes 

of RSA 482:11-a. Absent such authority, the “series of transactions” argument 

appears to rest solely upon Michele, which we have already distinguished.2

 

2

The dissent protests our rejection of the “series of transactions” argument. However, in an effort 
9

Despite these distinctions, the dissent contends that Michele controls the 

outcome of this case, and relies on Michele for the broad proposition that “a 

person who holds an easement interest in property is an ‘owner’ thereof.” 

Michele, 168 N.H. at 105. However, the holding of Michele was that, given the 

scope of the exclusive rights conferred by the easement, the easement holders 

had “a sufficient ownership interest to obtain a dock permit under RSA chapter 

482-A.” Id. at 104 (emphasis added). The holding in Michele is necessarily 

confined to the question and facts presented in that case. The broader 

proposition relied on by the dissent was not essential to the outcome in 

Michele, is therefore dicta, and it does not control the outcome here. See In re 

Estate of Norton, 135 N.H. 62, 64 (1991) (observing that nonessential remarks 

are non-binding dicta).

Moreover, all easements are not created equal. To employ the traditional 

law school metaphor of a “bundle of sticks” representing property rights, here 

the Town holds but one stick out of the bundle. By comparison, the easement 

holders in Michele held nearly all of the sticks in the bundle — the fee owners 

retained no rights of use or control over the lakefront property, having 

transferred those rights to the easement holders. See Michele, 168 N.H. at 

100. Thus, in contrast to Michele, the Town’s “single stick” is not a sufficient 

ownership interest to deem it “[t]he owner” under RSA 482:11-a. Simply put, 

the Town “owns” an easement, it does not “own” the levee.

The dissent nonetheless concludes that it is “eminently fair and 

reasonable” to impose the obligations of RSA 482:11-a upon the Town because 

the levee was “restored for the benefit of the public using public monies as a 

result of the vote of the Town’s residents.” However, the question before us is 

not whether we think it would be reasonable or fair for the legislature to 

impose these obligations upon the Town, but rather, whether the legislature 

did impose the obligations of “ownership” on an entity, such as the Town, with 

a limited right of access. We conclude that it did not. The legislature made a

judgment, and we must interpret the language that it enacted. See Carrier, 

165 N.H. at 721. “The wisdom, effectiveness, and economic desirability of a 

statute is not for us to decide. Nor may we substitute our judgment for that of 

the legislature.” Smith Insurance, Inc. v. Grievance Committee, 120 N.H. 856, 

863 (1980).

 

to bolster its position, the dissent cites authority that actually supports a different and 

uncontested proposition — in fact, one already embraced by the majority — that, in determining 

the scope of an easement, all of the documents and surrounding circumstances should be 

considered. We agree. The dissent nonetheless fails to consider all of the circumstances

surrounding the granting of the access easement. It focuses on two documents, failing to take 

into account the fact that the Franconia Paper Company explicitly retained ownership and control 

over the levee in the REA, and that, in the 1971 deed, its successor agreed to assume and 

discharge the Franconia Paper Company’s obligation to maintain the levee.
10

In sum, because the Water Council’s conclusion that the Town is an 

“owner” of the levee under RSA 482:11-a is dependent on its flawed reasoning

that Michele controls the outcome in this case, the Town has met its burden to 

show that the order of the Water Council is clearly unreasonable or unlawful. 

See RSA 541:13. Accordingly, although we need not decide the precise degree

of ownership that makes a person or entity an “owner” for the purposes of RSA 

482:11-a, we hold that the limited access easement held by the Town in this 

case falls short of that threshold. Because our holding on this issue is 

dispositive of this case, we decline to address the parties’ other arguments. 

Dionne v. City of Manchester, 134 N.H. 225, 230 (1991).

Reversed.

HICKS and HANTZ MARCONI, JJ., concurred; LYNN, C.J., and 

DONOVAN, J., dissented.

LYNN, C.J., and DONOVAN, J., dissenting. At town meeting in March 

1960, the residents of the Town of Lincoln (Town) voted to approve “the 

proposed local protection project for the Restoration of the Flood Control Dike” 

at issue in this case, and to authorize the selectmen to “acquire any real estate 

interests for said project.” In order to secure federal funding for the restoration 

project, the selectmen executed an Assurance Agreement with the United 

States Army Corps of Engineers obligating the Town to, inter alia, “[m]aintain 

and operate all the works after completion in accordance with regulations 

prescribed by the Secretary of the Army.” In addition, the Town entered into a 

Right-of-Entry Agreement with the fee owner that granted it and the United 

States the “right to enter upon the . . . lands to perform construction work of 

any nature necessary in the restoration of the dike, and to enter upon said 

lands at any time to inspect the restored dike with a view to its proper 

maintenance and operation.” Thereafter, the Army Corps of Engineers restored 

the dike. No party disputes that the dike in this case constitutes a “dam” 

within the meaning of RSA 482:11-a, which provides in part that “[t]he owner 

of a dam shall maintain and repair the dam so that it shall not become a dam 

in disrepair.” RSA 482:11-a (2013). Rather, the parties dispute whether the 

Water Council erred in ruling that “owner” includes the Town, thereby 

obligating the Town to maintain and repair the dam pursuant to RSA 482:11-a.

In Appeal of Michele, 168 N.H. 98 (2015), the court was presented with a 

similar question: whether the easement holders in that case could be 

considered “owners” for the purposes of the statute at issue in that case, RSA 

482-A:11, II (2013). Michele, 168 N.H. at 101. Because the term was not 

defined by the legislature, the court looked to its common usage, using the 

dictionary for guidance. Id. at 102. The court noted that Webster’s Third New 

International Dictionary defines “owner” as “one that has the legal or rightful 

title whether the possessor or not.” Webster’s Third New International 

Dictionary 1612 (unabridged ed. 2002); Michele, 168 N.H. at 102-03. The 
11

court further noted that an easement “is a nonpossessory right to the use of 

another’s land.” Michele, 168 N.H. at 103 (quotation omitted). Thus, the court 

stated that “a person who holds an easement interest in property is an ‘owner’ 

thereof.” Id. at 105.

The majority does not disagree that the Town holds an easement to enter 

upon the land “to perform construction work of any nature necessary in the 

restoration of the dike, and to enter upon said lands at any time to inspect the 

restored dike with a view to its proper maintenance and operation.” The 

majority concludes, however, that the facts in Michele are distinguishable, and 

therefore Michele should not govern this case. We are not persuaded. As the 

court explained in Michele, the term “owner” is broadly defined and requires 

neither fee ownership nor possession. The court noted that there is no reason 

to limit the meaning of the term when the legislature has not seen fit to do so. 

Id. at 103. Rather, in determining whether the easement holder had a 

sufficient ownership interest to be an “owner,” the court looked to the purpose 

of the statute. Id. at 103-04. 

Similarly, here the legislature has not limited the term “owner.” Unlike 

the majority, we again see no reason to limit the meaning of the term when the 

legislature did not see fit to do so.3 See id. at 103. Thus, we would construe it 

broadly in accordance with its common usage. See RSA 21:2 (2012). RSA 

chapter 482 mandates the repair of dams in disrepair in order to, among other 

things, lessen flood damage and enhance public safety. RSA 482:1 (2013). The 

issue, accordingly, is whether in light of this purpose the Town has a “sufficient 

ownership interest” to be considered the “owner” under RSA 482:11-a. See

Michele, 168 N.H. at 104. The majority faults DES for not citing “legal 

authority to support the notion that the contractual obligations set forth in the 

Assurance, when combined with the rights granted to the Town in the REA and 

the 1971 deed, are sufficient to establish ownership for purposes of RSA 

482:11-a.” Significantly, however, the majority does not contend that such 

authority does not exist. On the contrary, our case law offers ample support 

for considering all these documents together, along with all the other 

circumstances of the parties at the time the easement was granted. See Arcidi 

v. Town of Rye, 150 N.H. 694, 703 (2004) (“our task is to determine the parties’ 

intent in light of the surrounding circumstances at the time the easements 

were granted”); Dumont v. Town of Wolfeboro, 137 N.H. 1, 5 (1993) (“Defining 

the rights of the parties to an expressly deeded easement requires determining 

the parties’ intent in light of circumstances at the time the easement was 

 

3 The short answer to the majority’s view that “if the legislature had intended to place the 

obligations of RSA 482:11-a on a broader class of persons or entities, it knew how to do so,” supra

at 7, is that this contention is based on circular reasoning. The question is not whether the 

legislature could have imposed liability upon persons or entities other than “owners,” but whether 

an easement holder is an owner within the meaning of the statute. Because under wellestablished law an easement holder is an owner of property, the legislature had no reason to use 

an additional term to capture this form of ownership.
12

granted.”). Here, consideration of the entire series of transactions by which the 

Town acquired its access easement as well as its obligation to the federal 

government to repair and maintain the levee makes it eminently fair and 

reasonable to treat the Town as an “owner” of the levee within the meaning of 

RSA 482:11-a. Indeed, the Town’s ownership interest could hardly be more 

closely tied to the purpose of the statute — the Town’s easement is for the 

purpose of entering upon the land to inspect the restored dike with a view to its 

proper maintenance and operation. As the majority notes, the easement was 

obtained in order to satisfy the Town’s obligations under the Assurance 

Agreement with the Army Corps of Engineers, which included the obligation to 

maintain and operate the dike after completion in accordance with Army 

regulations. Thus, the easement was intended to permit the Town to carry out 

its obligation to maintain the dike, thereby lessening flood damage and 

enhancing public safety, which are stated purposes of RSA chapter 482. 

The majority’s approach attempts to distance the terms of the Assurance 

Agreement from the terms of the Right-of-Entry Agreement, rather than reading 

them together, as the court normally does, see Motion Motors, Inc. v. Berwick, 

150 N.H. 771, 777 (2004), in determining whether the Town’s easement 

interest is sufficient to constitute the Town an “owner” of the levee within the 

meaning of RSA 482:11-a. Only by doing so is the majority able to assert that 

the Town’s “only property interest in the levee” is “the right of access set forth 

in the REA.” Supra at 4 (emphasis added). The reality is that when the two 

agreements are read together it is clear that the Town voluntarily undertook 

significant obligations, i.e., to repair and maintain the levee — that accompany 

its easement right of access. For example, could there be any serious question 

that the Franconia Paper Company or its successors would not have the right 

to deny the Town the ability to repair the levee, pursuant to the Town’s 

obligations under the Assurance Agreement, on the ground that doing so would 

constitute an “overuse” of the easement? The answer obviously is that the 

paper company would have no such right. Thus, contrary to the majority’s 

intimation, the Town’s ownership interest in the property is far more than a 

right of access simpliciter. In short, when all of the relevant agreements and 

all of the circumstances are considered together, it is obvious that the Town’s 

interest in the levee represents significantly more than the “single stick” of 

ownership described by the majority. Under these circumstances, we agree 

with the Water Council that the Town has a sufficient ownership interest to be 

considered the “owner” under RSA 482:11-a.4 

 

4 The majority rejects this analysis in part upon the ground that DES is seeking to “impose 

upon the Town” additional ownership obligations under RSA chapter 482. It also notes that 

the Town, while obligating itself to maintain the dike in accordance with Army regulations, did 

not agree to maintain it in accordance with state regulations. And it contends that Franconia 

Paper Company may not have intended to shift “the obligation of ongoing levee repair and 

maintenance to the Town.” In our view, all of these observations miss the mark. The question 

before us is not whether the Town agreed in 1960 to maintain the dike in accordance with state 

regulations or whether Franconia Paper Company believed it had shifted the obligation of 
13

We are not persuaded that this result is unjust or unreasonable. See

RSA 541:13 (2007) (order shall not be set aside unless court is satisfied, by a 

clear preponderance of evidence before it, that order is unjust or 

unreasonable). The dike was rebuilt as a result of the vote of the Town 

residents, presumably because the residents believed it was in the public 

interest to do so. The Water Council refers in its order to a presentation by the 

Town in 2016 in which the Town represented that the purpose of the dike is to 

protect lives and property in the floodway, which consists not only of private 

dwellings that then generated over $311,000 in annual property tax revenue, 

but also of several parcels of public and Town land. The dike was rebuilt using 

public monies, obtained in part as a result of the Town’s promise to the Army 

Corps of Engineers to maintain it. In essence, this was a public works project 

intended for the safety and the benefit of the community. The legislature has 

imposed a duty, independent of any agreements among the entities involved in 

this case, to maintain and repair the dike. We find nothing unjust or 

unreasonable in concluding that the legislature has imposed upon the Town 

the obligation to maintain and repair a dike restored for the benefit of the 

public using public monies as a result of the vote of the Town’s residents.5 

As the majority correctly notes, the question before us is whether the 

legislature imposed the duty to maintain and repair a dam upon an entity, 

such as the Town, with an easement. The majority further correctly notes that 

we “interpret legislative intent from the statute as written.” Here, the 

legislature has used the term “owner” to describe those entities who should be 

charged with maintaining and repairing dams — a term that is broadly defined 

and that requires neither fee ownership nor possession. Moreover, the 

legislature has itself stated the purposes of the statute. RSA 482:1 (2013). 

 

repair and maintenance to the Town. Nor is this a case in which DES is creating new 

obligations to impose upon the Town. Rather, the issue is whether the legislature intended to 

impose the obligation of maintaining and repairing a dam upon an entity with an easement 

under the circumstances of this case. The parties do not dispute that the restored dike in this 

case is a “dam” for purposes of RSA 482:11-a. Thus, the issue is whether the legislature 

intended “owner” in RSA 482:11-a to apply to the Town under the circumstances of this case. 

In light of the legislature’s use of the broad term “owner” and in light of the stated purpose of 

the statute, we are persuaded that the legislature did intend that an entity that voluntarily 

undertook an obligation to the federal government to maintain a dike that it voted to have 

restored using public monies, and that obtained a property interest for the specific purpose of 

being able to enter upon the land to carry out that obligation, should fall within the definition 

of “owner” for the purposes of RSA 482:11-a.

5 We note that we have not been asked to decide whether any party other than the Town could 

also be considered “the owner” under RSA 482:11-a, resulting in more than one party having 

the obligation to maintain and repair the dike, or whether, if such an obligation can be 

imposed on multiple parties as “owners,” an owner that has incurred more than its fair share 

of the costs of that obligation may seek contribution from the other owners. See RSA 21:3 

(Supp. 2018) (words importing the singular number may be applied to several persons or 

things). Accordingly, we express no opinion as to those questions. 
14

Thus, our broad construction of the term “owner” is the result of interpreting 

legislative intent from the statute as written. 

Accordingly, we respectfully dissent.