1Bedrock Realty Trust owns the property at issue. Bourne

and his wife had created Bedrock for the purpose of buying the

property. After the dispute with the town began, Bourne’s wife

removed herself as a trustee leaving Bourne as the sole trustee

of Bedrock. For ease of reference, the court will refer to both

Bourne and Bedrock as “Bourne.”

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. Civil No. 05-cv-365-JD

Opinion No. 2007 DNH 084

Town of Madison et al.

O R D E R

Plaintiff Samuel J. Bourne sued the town of Madison, New

Hampshire; its board of selectmen, John Arruda, Clifford Graves,

and Eileen Crafts, each individually and in their official

capacity; and Robert D. King, a Madison resident who had served

on the town’s road study committee in 1998, alleging that they

violated state law and deprived him of his constitutional rights. 

All of the alleged violations arose from a land use dispute

between Bourne and the town concerning an unpaved access road

leading onto Bourne’s property in Madison.1 At the core of the

dispute is Bourne’s desire to prevent public traffic -- viz.,

snowmobile traffic -- on the access road, which the town claims

is a public road. 

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 1 of 49
2

The defendants move for summary judgment and Bourne objects. 

After Bourne filed his objection, the court granted, in part,

Bourne’s motion to amend the complaint and permitted both parties

to file supplemental memoranda with regard to the defendants’

summary judgment motion. See Order of December 5, 2006 (document

no. 33). 

In response to an order to show cause, the defendants also

filed a motion to dismiss or to stay adjudication of Bourne’s

claims pending the resolution of related state proceedings in the

Carroll County Superior Court. During a telephonic scheduling

conference, the parties agreed to a stay of the trial in this

case pending a final judgment by the state court. See Order of

May 3, 2007 (document no. 93). The parties further agreed that

the court should proceed to rule on any pending motions and the

court accordingly ruled on the parties’ respective motions in

limine. See Order of May 9, 2007 (document no. 95). The court

now considers the defendants’ motion for summary judgment,

Bourne’s objection, and the parties’ supplemental memoranda.

 

I. Background

Bourne, a resident of Massachusetts, retained a real estate

agent in New Hampshire in the summer of 2002 for the purpose of

finding a wooded lot on which to build a family vacation home. 

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 2 of 49
2Class VI highways generally consist of “public ways” not

otherwise classified by New Hampshire law, including “all

highways discontinued as open highways and made subject to gates

and bars . . . and all highways which have not been maintained

and repaired by the town in suitable condition for travel thereon

for 5 successive years or more . . . .” N.H. Rev. Stat. Ann.

(“RSA”) § 229:5, VI. Class VI highways are “full public highways

that the public has a right to pass over.” Glick v. Ossipee, 130

N.H. 643, 646 (1988).

3

Bourne found a fifty-acre tract with a small pre-existing cabin

in the town of Madison in Carroll County. The property is

accessible by an unpaved road, called “Solomon Harmon Road,” that

connects with East Madison Road on its north end. The southern

side of the Bourne property abuts a large conservation parcel

known as the “McNair property,” on which the town permits

snowmobile use. 

Before Bourne purchased the property, his real estate agent

informed him that Madison has historically considered Solomon

Harmon Road to be a class VI highway under state law.2 Earlier

in the year, the town had adopted a regulation authorizing the

use of snowmobiles on certain class VI roads, including Solomon

Harmon Road. The town maintains that an easement that runs

concurrently with the road and that was granted to the town in

the 1970s, extends a north-south public trail from East Madison

Road to the McNair property.

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 3 of 49
4

Before Bourne completed purchase of the fifty-acre lot, he

was informed by the town administrator that, to obtain a building

permit, he would first need to execute a waiver agreement

relieving the town from maintenance responsibilities and from

liability with respect to travelers on Solomon Harmon Road. A

standard form waiver agreement was faxed to Bourne. He forwarded

the agreement to his attorney who revised it by adding two terms

favorable to Bourne: (1) that the public could not use the

stretch of Solomon Harmon Road on his property, (with exceptions

for police and fire emergencies), and (2) that the town “would

never reclassify Solomon Harmon Road” without Bourne’s consent. 

First Bourne Aff., Ex. 4.

Bourne mailed the “revised waiver” back to the selectmen

with a cover letter. The parties dispute the substance of the

cover letter and have each submitted what they claim to be the

cover letter received by the selectmen on August 26, 2002. 

Bourne’s version of the cover letter specifically requests the

selectmen to “review” the “revised” waiver agreement. First

Bourne Aff., Ex. 5. The cover letter produced by the town makes

no mention of any revisions to the agreement and does not invite

the selectmen to review it. Arruda Aff., Ex. 4. The defendants

contend that the selectmen assumed that Bourne had simply signed

the standard form waiver without change. The selectmen admit

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 4 of 49
5

that they did not read the revised waiver before they signed and

notarized it on August 28, 2002. Two days later, it was recorded

at the Carroll County Registry of Deeds, and on September 30,

2002, Bourne completed purchase of the fifty-acre lot.

Bourne then erected a chain across Solomon Harmon Road at

the entrance to his property. Robert Babine, the Madison code

enforcement officer, learned of the chain and removed it. After

Bourne complained to the town about the removal of his chain,

Selectman John Arruda discovered that the executed waiver

agreement was not the standard form waiver. Arruda sent Bourne a

letter stating that the revised waiver was “invalid” because the

selectmen lacked the authority to restrict public access to a

town road without convening a town meeting. Arruda stated that

if Bourne wanted a building permit, “it would be in [his] best

interest to sign the attached [standard form waiver] agreement.” 

First Bourne Aff., Ex. 7. 

Undeterred, Bourne hired a contractor to install a gate

across Solomon Harmon Road in early November 2002. Bourne’s

attorney told Bourne that counsel for the town had agreed that he

could install a gate so long as it was held open at all times. 

Nevertheless, while Bourne’s contractor was in the process of

pouring a foundation for the gate, Babine approached him and told

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 5 of 49
6

him that the town would remove any gate erected across the road. 

Bourne’s contractor completed the installation.

On November 11, 2002, Robert King sent a memorandum to the

board of selectmen with the subject heading: “Granting of

building permits on Solomon Harmon Road and other Class VI

roads.” Id., Ex. 13. King had served on the 1998 Madison Class

VI Road Study Committee that had created a report identifying

Solomon Harmon Road as a class VI road. In his November 11

memorandum, King advised the selectmen concerning the town’s

dispute with Bourne. He stated that the revised waiver was

invalid and that the selectmen should endeavor to have a new

agreement executed and recorded to “cancel[] out the existing

agreement.” Id. He also recommended that the town remove

Bourne’s newly erected gate. Anticipating a lawsuit, King

suggested that the town’s defense should be “to show that the

unlawful provisions were originated and sneaked into the [revised

waiver] by the Bournes, [sic] not by the Selectmen, and that

accordingly it is they, not the Selectmen, who caused the

agreement to be legally invalid.” Id.

The following day, Babine denied Bourne’s application for a

building permit citing five reasons: the revised waiver was

void, Bourne’s application did not show the location of the new

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 6 of 49
3“Current use” is a term of art relating to New Hampshire’s

tax code. In order to encourage the preservation of open space,

the tax code allows undeveloped land to be taxed at a reduced

rate based on its “current use” value as opposed to the real

estate market value. See RSA 79-A et seq.; Dana Patterson, Inc.

v. Town of Merrimack, 130 N.H. 353, 355 (1988). Forty-nine acres

of Bourne’s fifty-acre tract was designated as “current use.”

7

house in relation to the land in “current use,”3 the application

did not indicate the set-backs from the class VI road,

construction of a second dwelling would violate a zoning

ordinance, and Bourne needed approval from the State Wetlands

Bureau. Babine Aff., Ex. 1. 

On November 25, town counsel sent a letter to Bourne’s

attorney stating, inter alia, that Bourne would need to either

remove his gate or position it in such a way that it is always

open. The letter stated that if he refused to comply by December

1 the town would remove the gate. The letter also accused

Bourne’s attorney of “hiding” her involvement in revising the

waiver agreement and of “sandbagging” the town by submitting the

revised waiver without a cover letter alerting the selectmen to

the changes. First Bourne Aff., Ex. 15. The town removed the

gate on December 4.

On January 10, 2003, the town filed suit in Carroll County

superior court seeking rescission of the revised waiver and an

injunction to prevent Bourne from interfering with the public’s

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 7 of 49
4After this lawsuit settled in May 2003, Bourne wrote a

letter to town counsel in October 2003 accusing the town of

forging his signature. Both the town and Bourne subsequently

hired handwriting analysts. The town’s analyst concluded that

the signature on the town’s version of the cover letter was

genuine, while Bourne’s analyst believed it was forged. When

Bourne later learned that the Carroll County Sheriff had issued a

warrant for his arrest for making “false claims,” he submitted

his analyst’s affidavit to the sheriff. Bourne alleges that,

although the sheriff thereafter withdrew the arrest warrant, the

investigation remained open and the police pressured Bourne to

retract his accusation. 

8

access to Solomon Harmon Road. At the injunction hearing, the

town produced its version of Bourne’s August 26, 2002, cover

letter. Bourne thereafter filed a petition with the superior

court accusing the town of forging the cover letter. Bourne

asked the superior court to uphold the revised waiver and to

order the town to issue a building permit.

Before the superior court could rule, Arruda approached

Bourne with a settlement proposal. He told Bourne that if he

signed a new waiver agreement, the town would drop its lawsuit

and grant him a building permit. According to Bourne, Arruda

also promised that, following a hearing, the selectmen would be

able to relocate the public trail to the outside perimeter of the

Bourne property so that public use of the trail would not

interfere with his use and enjoyment of the property. Bourne

accepted Arruda’s offer.4

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9

On April 12, 2003, Bourne signed a new waiver (the “second

waiver”), which stated that it “supersede[s] an agreement dated

August 28, 2002, recorded on August 30, 2002, at the Carroll

County Registry of Deeds . . ., which parties agree is void as

ultra vires.” Defense Counsel Aff., Ex. 4. In the second

waiver, the town “agreed to issue a building permit for the

construction of a residence . . . and a license to maintain that

portion of Solomon Harmon Road serving as access to the [Bourne]

Property as if a private driveway,” so long as Bourne would

“maintain said roadway” and not hold the town liable for any

injuries or damages occurring on the road. Id. The second

waiver made no mention of relocating the public trail. Following

the stipulated dismissal of the town’s lawsuit in May, Bourne and

the town executed a “mutual release” of all claims “arising out

of” that action, with the exception that Bourne could seek to

adjudicate the legal status of the access road. Id., Ex. 6.

The town issued Bourne a building permit on May 7, 2003. 

Following a public hearing, the selectmen denied Bourne’s

petition to relocate the public trail, stating that the public

interest in maintaining the present location of the right-of-way

outweighed Bourne’s private interest. In particular, the

selectmen found that, because the trail “runs coincident with” a

recorded easement, “it would be contrary to the public interest

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 9 of 49
10

to move the class VI road to be in a different location than the

. . . easement.” First Bourne Aff., Ex. 18.

In October 2003, the Madison Planning Board denied Bourne’s

request for a permit to subdivide his property into four lots

because the Board found, inter alia, that the access road to the

property did not meet the width specifications of the town’s

subdivision regulations. First Bourne Aff. ¶ 35. In February

2004, the town revoked Bourne’s building permit. Id. ¶ 32. 

According to a letter signed by Babine, “[o]ne of the conditions

[of the permit] was that the land area where the new house is to

be constructed be taken out of current use status.” Id., Ex. 21. 

Babine’s letter stated that the town was revoking the permit

because that condition had not been met, but that the permit

could be reissued if Bourne resolved the problem. Id.

Bourne also claims that the defendants interfered with his

attempts to improve his property and the access road. In

December 2003, Bourne hired a contractor to lay crushed stone and

gravel on the road. The Madison chief of police, John Pickering,

purportedly on directions from the selectmen, ordered Bourne’s

contractor to cease work on the road because he was not using the

proper grade of gravel. In May 2004, Bourne hired the New

Hampshire Electrical Cooperative to install power lines along the

Solomon Harmon Road onto Bourne’s property. The installation was

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 10 of 49
11

delayed when the selectmen informed the Electrical Cooperative

that it needed to obtain pole setting permits. Id., Ex. 28. 

Bourne alleges that the town “refused to execute a conditional

license to allow the Co-op to proceed with the installation.” 

Id. ¶ 38. As a result, he claims that he was forced to pay his

neighbor for an easement over which to run the power lines. 

Following settlement of the town’s lawsuit, Bourne initiated

several suits of his own in the Carroll County Superior Court. 

In May 2003, he petitioned the superior court to overturn the

town’s denial of his petition to relocate the Solomon Harmon

Road. In September 2003, he challenged the legal status of the

Solomon Harmon Road, asking the superior court to remove the

class VI classification and deny the town’s claim to an easement

running over the road. He also requested an injunction against

snowmobiling on the road. In February 2005, he filed a third

action in superior court, challenging the selectmen’s approval of

a neighbor’s petition to lay out a class VI road over the Solomon

Harmon Road. These three actions were consolidated with a fourth

lawsuit brought against Bourne by two of his neighbors. Defense

Counsel Aff. ¶¶ 6-8. In the course of the state proceedings,

both parties have petitioned the superior court for temporary

relief on a number of issues. In one of the court’s rulings,

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 11 of 49
12

Bourne was ordered to remove the crushed stone and gravel that he

had laid on the Solomon Harmon Road.

Bourne commenced the present action in June 2005 by filing a

complaint in Massachusetts federal district court alleging that

the defendants had violated New Hampshire law and his

constitutional rights. The case was transferred to this court in

October 2005. The court subsequently granted Bourne’s motion to

amend the complaint in part. See Order of December 5, 2006

(document no. 33). As it now stands, Bourne’s second amended

complaint claims, under 42 U.S.C. § 1983, that the defendants’

conduct deprived him of his constitutional rights to due process

and equal protection. He also alleges claims arising under New

Hampshire common law: breach of the revised waiver, fraud,

negligent misrepresentation, and tortious interference with

contractual relations. He seeks monetary damages and an

injunction ordering the defendants to grant him a building

permit.

II. Summary Judgment

The defendants contend that Bourne has failed to raise a

sufficient issue of material fact with respect to his Fourteenth

Amendment claims. Specifically, the defendants argue that Bourne

has not demonstrated violations of his constitutionally protected

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 12 of 49
13

rights to due process or equal protection. In the alternative,

the defendants claim that they are entitled to qualified immunity

on the § 1983 claims. Additionally, the defendants argue that

the state law claims should be dismissed on summary judgment. 

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). The record evidence is construed in the light most

favorable to the nonmoving party and all reasonable inferences

are construed in that party’s favor. See Mauser v. Raytheon Co.

Pension Plan for Salaried Employees, 239 F.3d 51, 56 (1st Cir.

2001).

A “material fact” is one that “has the potential to change

the outcome of the suit under the governing law” and a factual

dispute is “genuine” if “the evidence about the fact is such that

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 13 of 49
14

a reasonable jury could resolve the point in favor of the

nonmoving party.” Grant’s Dairy--Me., LLC v. Comm’r of Me. Dep’t

of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir. 2000). 

The party that would bear the burden of proof at trial cannot

rely on speculation or conjecture and instead must present

sufficient evidence on essential factual elements of each claim

to generate a trial-worthy issue. See In re Spigel, 260 F.3d 27,

31 (1st Cir. 2001). An absence of evidence on a material issue

weighs against the party who would bear the burden of proof at

trial on that issue. See Perez v. Volvo Car Corp., 247 F.3d 303,

310 (1st Cir. 2001). 

A. Procedural Due Process

Bourne alleges that the defendants’ failure to provide him

with adequate notice and a hearing before removing his gate on

December 4, 2002, violated state law, see N.H. Rev. Stat. Ann.

(“RSA”) 231:21 (providing that gates and bars may be removed from

highways “upon like proceedings as in the laying out of

highways”), and his procedural due process rights. The

defendants argue that Bourne cannot establish a procedural due

process violation because sufficient post-deprivation relief was

available to him. Bourne responds that the defendants did not

have a sufficient basis to remove the gate without notice and a

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 14 of 49
15

hearing because he has established that the gate had remained

open at all times and, therefore, it did not interfere with

public traffic.

The court assumes, arguendo, that the defendants, including

King, deprived Bourne of a property interest while acting under

the color of state law. See SFW Arecibo, Ltd. v. Rodriguez, 415

F.3d 135, 139 (1st Cir. 2005) (outlining the elements for a

procedural due process claim under § 1983). The First Circuit

has long recognized that the failure to provide pre-deprivation

process does not violate procedural due process when the

deprivation of property “results from conduct of state officials

violative of state law.” PFZ Props., Inc. v. Rodriguez, 928 F.2d

28, 31 (1st Cir. 1991) (citing Parratt v. Taylor, 451 U.S. 527,

543 (1980)). Thus, in a case such as this, where the plaintiff’s

constitutional claim relies on an alleged violation of state law,

“the only question is whether the post-deprivation process

available to [the plaintiff] was adequate.” Id. 

Bourne does not argue that the post-deprivation relief

available to him was inadequate. The defendants have produced

the affidavit of the Madison town administrator stating that the

town has a zoning board of adjustment that “is available to hear

and decide appeals if it is alleged that the Board of Selectmen

or its Building Inspector has made an error in any order,

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16

requirement, decision, or determination relating to land use and

building matters.” Melissa S. Arias Aff. at 2; see also RSA

677:2 (providing that any person affected by a decision of a

local legislative body or the local board of adjustment relating

to zoning may apply for rehearing). New Hampshire law

additionally provides a mechanism for superior court review of

decisions made by local legislative bodies and local boards of

adjustment. See RSA 677:4 (“Any person aggrieved by any order or

decision of the zoning board of adjustment or any decision of the

local legislative body” may petition the superior court within

thirty days). Because Bourne has failed to establish a lack of

adequate post-deprivation remedies, the court grants the

defendants’ motion for summary judgment as to Bourne’s procedural

due process claim. See SFW Arecibo, 415 F.3d at 139-40; PFZ

Props., 928 F.2d at 31; cf. Amsden v. Moran, 904 F.2d 748, 757

(1st Cir. 1990) (noting that a procedural due process claim under

§ 1983 is not complete “unless and until the State fails to

provide due process”) (internal quotation marks omitted). 

B. Substantive Due Process

Recognizing the First Circuit precedent disfavoring

substantive due process and equal protection claims arising out

of land use disputes, Bourne attempts to cast his case as being

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17

about a wide-ranging conspiracy involving official corruption. 

He also seeks to demonstrate that the defendants’ conduct was

part of a “pattern of abuse based upon personal hostility.” 

Bourne Obj. at 15. The defendants, he argues, abused their

positions and conspired with others, including Bourne’s

neighbors, the local police, and the Carroll County Sheriff, in

an effort to force him out of town. The defendants argue that

Bourne’s allegations, even if taken as true, are insufficient to

meet the onerous “shocks the conscience” standard required to

succeed on a substantive due process claim.

Meritorious substantive due process claims in the context of

a land use dispute are rare. See, e.g., SFW Arecibo, 415 F.3d at

141; PFZ Props., 928 F.2d at 31. A plaintiff seeking to prove a

substantive due process violation must show “both that the acts

[of the defendants] were so egregious as to shock the conscience

and that they deprived him of a protected interest in life,

liberty, or property.” Pagan v. Calderon, 448 F.3d 16, 32 (1st

Cir. 2006) (emphasis in original). To “shock the conscience,”

the defendants’ conduct “must at the very least be extreme and

egregious, . . . or, put another way, truly outrageous,

uncivilized, and intolerable.” Id. (internal quotation marks and

citations omitted). Significantly, “[m]ere violations of state

law, even violations resulting from bad faith, do not invariably

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 17 of 49
18

amount to conscience-shocking behavior.” Id. (internal quotation

marks omitted). In all but the most extraordinary cases, the

substantive due process doctrine may not be invoked “to challenge

discretionary permitting or licensing determinations of state or

local decisionmakers, whether those decisions are right or

wrong.” Id. at 33; PFZ Props., 928 F.2d at 31 (“This Court has

repeatedly held . . . that rejections of development projects and

refusals to issue building permits do not ordinarily implicate

substantive due process.”).

Bourne argues, nevertheless, that the First Circuit has “not

ruled out the possibility of a substantive due process claim

based upon personal hostility towards the applicant,” Mongeau v.

City of Marlborough, 462 F. Supp. 2d 144, 151-52 (D. Mass. 2006),

and that the circuit has similarly “left the door slightly ajar”

for “federal relief in truly horrendous situations,” such as

cases involving claims of official corruption, bribery, or

political threats. Nestor Colon Medina & Sucesores v. Custodio,

964 F.2d 32, 45 (1st Cir. 1992); but see id. at 47 (declining to

decide whether such conduct violates due process); Raskiewicz v.

Town of New Boston, 754 F.2d 38, 44 (1st Cir. 1985) (noting that

charges of bad faith in land use cases are “commonplace” and that

if “all that were required to secure federal jurisdiction were

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19

loose claims of conspiracy and corruption, virtually any case of

this type could be brought into the federal court”).

Even assuming the First Circuit would recognize a § 1983 due

process action in the circumstances outlined in Nester Colon,

Bourne has not established a sufficient factual basis in support

of such a claim here. See 964 F.2d at 45 (noting that the

“threshold for establishing the requisite ‘abuse of government

power’ is a high one indeed”). Although Bourne speculates that

the defendants’ conduct stemmed from personal hostility against

him, he has not pointed to specific evidence supporting this

accusation apart from cataloguing the actions taken by the town

that were adverse to his interests. 

A party opposing summary judgment “may not rest upon mere

allegations; [he] must set forth specific facts demonstrating

that there is a genuine issue for trial.” Hoeppner v. Crotched

Mountain Rehab. Center, Inc., 31 F.3d 9, 14 (1st Cir. 1994)

(internal quotation marks omitted). Even in cases where the

critical element is the subjective motivation of the defendant,

“the plaintiff cannot survive summary judgment with unsupported

allegations and speculations, but rather must point to specific

facts detailed in affidavits and depositions--that is, names,

dates, incidents, and supporting testimony--giving rise to an

inference of . . . animus.” Id. (internal quotation marks

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 19 of 49
5Although the defendants do not raise the argument, the

court also notes that Bourne’s two affidavits, upon which his

entire case depends, are patently defective and have no

evidentiary value. Both of Bourne’s affidavits are unsworn, and

neither meet the statutory requirements for unsworn declarations. 

See 28 U.S.C. § 1746 (providing that, to have the effect of a

sworn declaration, unsworn declarations must include an

affirmation from the declarant that “under penalty of perjury . .

. the foregoing is true and correct”); Fed. R. Civ. P. 56(e)

(“Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.”).

20

omitted); see also Amsden, 904 F.2d at 757 (“Charges that

substantive due process was denied cannot rest on conclusory

allegations or rhetoric alone (even impassioned rhetoric).”). 

It is undisputed that the town reached determinations and

took actions that Bourne did not like. Although Bourne may have

disagreed, the town provided rational explanations for its

decisions. See supra at 5-11. Bourne has not adduced competent

evidence undermining the veracity of these explanations or

corroborating his own speculation that they were motivated by

personal animus. Nor has he presented sufficient competent

evidence to establish a conspiracy among Madison public officials

to force him out of town. Simply put, on the record established

here, a fact-finder could not reasonably infer that the

defendants were motivated by personal animosity or that they

conspired against him.5

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21

Bourne argues that the town improperly conditioned his right

to a building permit on the surrender of his private property

rights. The town offered a rational reason, however, which was

linked to a legitimate governmental interest (preserving free

passage on the public throughways) for the position it took. See

PZF Props., 928 F.2d at 31-32. Even if the defendants were

mistaken in their treatment of the Solomon Harmon Road as a class

VI road, the defendants’ conduct did not rise to the level of

conscience shocking, especially where the superior court provided

a readily available forum for correcting any errors by the town. 

See id. (“[A] mere bad faith refusal to follow state law in such

local administrative matters simply does not amount to a

deprivation of due process where the state courts are available

to correct error.”) (internal quotation marks omitted). 

To be sure, Bourne’s claims that the defendants forged a

cover letter, and that, when accused of the forgery, they

retaliated by pressuring the Carroll County Sheriff and the

county attorney to bring criminal charges against Bourne, are

more serious. Again, however, Bourne does not support these

claims with competent evidence. Bourne’s proposed handwriting

expert opined that the handwritten signature appearing on the

town’s version of the cover letter is not Bourne’s, and that the

computer-generated character impressions on the allegedly forged

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 21 of 49
22

cover letter are consistent with similar impressions on documents

known to have been created by the town. The court has ruled,

however, that Bourne’s expert is not qualified to testify as an

expert on the latter subject and that the methodology he employed

with respect to the former subject is unreliable. See Fed. R.

Evid. 702 (expert testimony must be relevant and reliable). The

court accordingly granted the defendants’ motion to exclude

Bourne’s expert testimony. See Order of May 9, 2007 (document

no. 95). Even if Bourne could establish the falsity of the

signature by other means (e.g., by having the trier of fact

compare the questioned signature with known Bourne signatures),

he has not shown how he would prove that the document originated

from the defendants.

More importantly, even assuming Bourne could establish that

a town official forged the cover letter, that act, by itself,

would not rise to the level of conscience shocking misconduct. 

Bourne’s contention that the defendants wrongfully conspired with

and pressured the county sheriff to bring meritless charges

against him in order to coerce him to drop his forgery accusation

is also unsupported. The documents Bourne points to merely

establish that the selectmen initiated an investigation by

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 22 of 49
6Bourne’s allegations are largely based on two letters. The

first letter, from Chief Pickering to an attorney at the Carroll

County Attorney’s Office, dated December 15, 2003, simply shares

the findings of the Madison police department’s investigation,

including the opinion of the town’s handwriting analyst, that the

signature on the town’s version of the cover letter was not

forged. The letter concludes by inquiring as to possible charges

that could be brought against Bourne for making false

accusations. See First Bourne Aff., Ex. 15. Over a year later,

town counsel for Madison wrote a letter requesting the county

attorney to issue a final report of his findings, and, “if called

for, appropriate criminal charges.” Second Bourne Aff., Ex. 14. 

Although both letters urge action, they do not display an attempt

to exert undue pressure on the county attorney to bring

unwarranted charges against Bourne. Indeed, Bourne was never

arrested or formally charged with a crime, and the complaints

against him were ultimately dropped.

23

informing Chief Pickering about Bourne’s forgery claim.6 

Anticipating a jurisdictional problem and seeking to avoid the

appearance of a conflict of interest, Pickering transferred the

investigation to the county sheriff who, in May 2004, issued

criminal complaints for “unsworn falsification” and for bringing

a “false report to law enforcement.” Those complaints were

ultimately dropped.

The record establishes that the county sheriff’s

investigation was not influenced by the defendants. In an

affidavit, Michael Santuccio, a sergeant of the Carroll County

Sheriff’s Office, states that Chief Pickering asked him “to

investigate mutual allegations of forgery by Samuel Bourne and

the Town of Madison Board of Selectmen.” Santuccio Aff. ¶ 3. 

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 23 of 49
7At a Madison town meeting in 2000, the town formally

accepted the findings of the 1998 Madison Class VI Road Study

Committee and adopted Article 26 mandating that the selectmen

would use “every reasonable effort” to defend against any

24

The sergeant affirms that his “role was to make an independent

determination as to whether either Mr. Bourne or a member of the

Town of Madison Selectmen had committed a forgery and, if so,

whether criminal charges should be pursued.” Id. He further

states that he did not receive any direction from nor was he

influenced by any Madison officials. Id. ¶ 5. The sergeant

ultimately concluded that there was insufficient evidence to

bring charges against either Bourne or the selectmen. See

Attach. to Santuccio Aff. Santuccio’s affidavit, which is not

challenged by Bourne, undermines his conspiracy theory. See

Raskiewicz, 754 F.2d at 45 (noting that on a motion for summary

judgment the court is “required to respect all inferences that

reasonably can be drawn from the facts, but [it] cannot ignore

uncontested facts that render inferences unreasonable or . . .

fantastic”).

At most, the record here suggests that the Madison selectmen

were overly assertive in their defense of the town’s class VI

roads. As even Bourne has pointed out, however, he is not the

only property owner in Madison that has tussled with the town

concerning a class VI road.7 Perhaps, as Bourne suggests, the

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 24 of 49
challenges to any class VI road unless the chances of a

successful defense were “remote.” Second Bourne Aff., Ex. 4. 

Pursuant to that article, the selectmen litigated a challenge

against a class VI road brought by Dr. David Riss, another

Madison landowner. See Second Bourne Aff. ¶¶ 9-10. 

8Bourne argues that a memorandum from Robert King to the

selectmen provides evidence of a plan “of ‘targeting non

residents’ or other Class VI road property owners in a conspiring

plot.” Bourne’s Supp. Mem. at 12. That memorandum, however,

merely informs the selectmen of the Class VI Roads Study

Committee’s efforts to notify all affected landowners of the

committee’s findings and notes that its “focus has been on new

and nonresident land owners who are unlikely to be aware of our

work.” Second Bourne Aff., Ex. 6. 

25

defendants were motivated by a desire to promote a snowmobile

trail system in Madison. Even assuming that to be the case, the

town’s efforts to assert more control over roads it believes to

be public is, “at worst, political decision making based on the

sort of parochial view [] of local interests held not to violate

substantive due process.” Nestor Colon, 964 F.2d at 47 (noting

that the “political animus” in that case “was based on the fact

that a large number of [town] residents did not want a hazardous

waste dump in [their town]”); see also Chiplin Enters. v. City of

Lebanon, 712 F.2d 1524, 1525 (1st Cir. 1983) (finding no

substantive due process claim where the plaintiff alleged that

the town had “maliciously den[ied] it a building permit for

invalid and illegal reasons and in bad faith”).8

 

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 25 of 49
26

In sum, although the summary judgment record is viewed in

the light most favorable to Bourne, speculation and conjecture

need not be credited. On the record established here, a trier of

fact could not reasonably conclude that the defendants’ conduct

was so “horrendous” as to amount to a deprivation of

constitutional magnitude. See Amsden, 904 F.2d at 757.

C. Equal Protection

Bourne’s equal protection claim fails for the same reasons

his substantive due process claim fails. Because Bourne has not

alleged “invidious discrimination based on a prohibited category

such as race or sex,” nor has he “pointed to an egregious

procedural irregularity,” SFW Arecibo, 415 F.3d at 142, he can

only prevail on an equal protection claim by establishing

“differential treatment” and “a gross abuse of power.” Pagan,

448 F.3d at 34. The “gross abuse of power” category has been

equated “with the ‘shocks the conscience’ concept used in

substantive due process cases.” Id. As in the substantive due

process context, “[e]ven an arbitrary, bad faith denial of a

benefit in derogation of state law, without more, will not cross

the constitutional threshold needed for an equal protection

claim.” Id. at 35. On this record, a jury could not reasonably

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 26 of 49
9The defendants do not argue that qualified immunity would

shield Robert King. The defendants have also not directly

challenged Bourne’s effort to establish municipal liability. See

Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978).

27

find an actionable deprivation of Bourne’s equal protection

rights. See PFZ, 928 F.2d at 32-33. 

D. Qualified Immunity

The court also agrees with the defendants’ alternative

argument that, even if Bourne had raised a triable issue with

regard to his due process or equal protection claims, the

defendant selectmen, Arruda, Graves, and Crafts, are entitled to

qualified immunity to the extent they are sued in their

individual capacities.9 The qualified immunity doctrine shields

government officials performing discretionary functions from

civil damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); see also Pagan, 448 F.3d at 31 (setting out

a three-part qualified immunity test and noting that it “protects

all but the plainly incompetent [and] those who knowingly violate

the law”) (internal quotation marks omitted). 

At most, Bourne’s constitutional claims are based on

allegations that Madison public officials conspired to drive him

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 27 of 49
28

out of town. In light of the First Circuit’s reluctance to

explicitly recognize a cause-of-action under § 1983 for

allegations of official corruption, see, e.g., Nestor Colon, 964

F.2d at 47 (declining to decide); Raskiewicz, 754 F.2d at 44-45

(doubting federal jurisdiction over “loose claims of conspiracy

and corruption”), a constitutional right to be free from such

conduct could not be said to be clearly established. Cf.

Mongeau, 462 F. Supp. 2d at 151-52. Nor would a reasonable

person have known, in the circumstances of this case, that the

challenged conduct amounted to constitutional infringement.

E. State Constitutional Claims

Citing Part 1, Article 1, and Part 1, Article 14 of the New

Hampshire Constitution, Bourne alleges that the defendants’

conduct also violated his state constitutional rights to due

process and equal protection. Because 42 U.S.C. § 1983 only

affords a civil remedy for the deprivation of rights secured

under federal law, see Williams v. City of Boston, 784 F.2d 430,

433 (1st Cir. 1986) (citing Parrat v. Taylor, 451 U.S. 527, 535

(1981)), and New Hampshire does not have its own statutory

equivalent to § 1983, Bourne is presumably asking the court to

imply a civil remedy here. See Sharon N. Humble, Implied Cause

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 28 of 49
29

of Action for Damages for Violation of Provisions of State

Constitutions, 75 A.L.R. 5th 619 (2000).

 The New Hampshire Supreme Court, however, has been

reluctant to expressly recognize such remedy. The only New

Hampshire Supreme Court decision directly addressing this issue

declined to imply, on the facts of that case, a cause of action

premised on violations of the New Hampshire equal protection and

due process provisions. See Rockhouse Mountain Prop. Owners

Assoc., Inc. v. Town of Conway, 127 N.H. 593, 597-601 (1986)

(declining to create a “constitutional tort” in a case involving

a dispute over the town’s denial to lay out a road); see also 14

Peter J. Loughlin, New Hampshire Practice: Local Government Law §

1106, at 372 (1995). 

It is well established in the First Circuit that plaintiffs

“who reject a state forum in order to bring suits in federal

court under diversity jurisdiction cannot expect that new trails

will be blazed.” Wilson v. Bradlees of New England, Inc., 250

F.3d 10, 16 (1st Cir. 2001); Andrade v. Jamestown Hous. Auth., 82

F.3d 1179, 1187 (1st Cir. 1996) (recognizing that a federal court

sitting in diversity “must take state law as it finds it, not as

it might conceivably be, some day; nor even as it should be”

(internal quotation marks omitted)). As the New Hampshire

Supreme Court has not yet recognized an implied right to damages

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 29 of 49
30

for violations of Part 1, Articles 1 and 14 of the state

constitution, the court will not entertain an action for damages

on such grounds here. Cf. Penney v. Town of Middleton, 888 F.

Supp. 332, 342 (D.N.H. 1994).

In any event, New Hampshire’s due process and equal

protection provisions appear to overlap the same federal

constitutional provisions. Bourne has not argued that the New

Hampshire Constitution offers more protection than the Fourteenth

Amendment in these circumstances, and the court has no reason to

believe that it does. Thus, even if the New Hampshire Supreme

Court would recognize a private right of action here, Bourne has

not established that he could prove a state constitutional

violation for the same reasons outlined in the above analysis of

the federal constitutional claims. 

F. State Common Law Claims

Bourne alleges that the defendants negligently

misrepresented their assent to the revised waiver, then breached

the revised waiver, and finally fraudulently induced Bourne to

agree to rescind the revised waiver. Additionally, Bourne

alleges the town tortiously interfered with his contractual

relations. Although Bourne’s second amended complaint names “all

defendants” with respect to the constitutional claims, the state

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 30 of 49
31

claims specifically name the town and selectmen, John Arruda,

Clifford Graves, and Eileen Crafts. Robert King, therefore, is

not a defendant to these claims. 

1. Federal Jurisdiction

The defendants ask the court to dismiss the state claims in

toto. They argue that, should the court grant summary judgment

as to the federal claims, “this case [would] no longer [have]

sufficient value to maintain federal jurisdiction.” Presumably

the defendants are arguing that the dismissal of the federal

claims reduces the amount in controversy below the threshold for

diversity jurisdiction. See 28 U.S.C. § 1332. But it has long

been established that the court determines the amount in

controversy with reference to the circumstances existing at the

time the complaint was filed. Conventry Sewage Assocs. v.

Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir. 1995). Moreover, once

jurisdiction has been established, based on a jurisdictional

amount alleged in good faith, it cannot be “ousted by a

subsequent change of events,” including when summary judgment is

granted on some claims but not others. Id. at 7 (citing Klepper

v. First Am. Bank, 916 F.2d 337, 340 (6th Cir. 1990)). The court

therefore retains jurisdiction to consider Bourne’s state law

claims.

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 31 of 49
32

2. Enforceability of the Mutual Release

Another threshold issue that must be resolved before

considering the merits of Bourne’s state law claims is the effect

of the mutual release. Shortly after Bourne and the town agreed

to settle the town’s 2003 lawsuit, in which the town sought

rescission of the revised waiver, the parties executed a mutual

release agreement purporting to waive “all claims arising out of”

that suit. The defendants argue that the mutual release bars the

state law claims pertaining to the revised waiver.

The town’s lawsuit began in January 2003 when the town

petitioned the Carroll County Superior Court to rescind the

revised waiver on the theory that it was void ab initio. The

town argued that Bourne had deceived the selectmen by failing to

inform them in his cover letter that he had added material terms

to the agreement and that, lacking such notice, the selectmen

signed the agreement assuming that it was the standard form

waiver agreement. Additionally, the town argued that the

selectmen lacked the authority to unilaterally transfer the

rights in a town road to a private citizen. The town argued that

it could only convey property rights or discontinue a town road

through a town meeting. Bourne responded with his own petition

accusing the town of manipulating his cover letter. He asked the

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 32 of 49
33

court to uphold the revised waiver and to order the town to issue

him a building permit.

The superior court never ruled on these issues because the

parties jointly stipulated to dismissal of the action. In April

2003, Bourne signed the second revised waiver that specifically

stated the intention of the parties “to supersede [the revised

waiver], which parties agree is void as ultra vires.” Defense

Counsel Aff., Ex. 4. In May of 2003, the parties stipulated to

docket markings dismissing the state action with prejudice. The

parties stipulated that judgment should be entered for “neither

party,” and that no fees, costs, or interest should be assessed

to either side. Defense Counsel Aff., Ex. 5. 

Later that month, Bourne and the town executed a “mutual

release of claims.” Defense Counsel Aff., Ex. 6. That release

provided that:

TOWN OF MADISON, and its agents, employees,

administrators, executors, affiliates, successors and

assigns, hereby release, and are released by, BEDROCK

REALTY TRUST, and their agents, employees,

administrators, executors, affiliates, successors, and

assigns, from all claims arising out of the matter

known as Carroll County Superior Court Docket Nr. 03-E005. All claims by any of the parties hereto are

forever discharged, waived and remised, with the

exception that Bedrock Realty Trust does not waive its

right to challenge/clarify by appropriate legal action

the use of the right-of-way (including issues of

motorized vehicles and snowmobiles) over their property

heretofore identified as Solomon Harmon Road as they

[sic] same may have been limited by easement conveyance

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 33 of 49
10Although release is an affirmative defense, under New

Hampshire law the burden of establishing a basis to avoid the

enforceability of a release resides with the party challenging

it. See Maltais v. Nat’l Grange Mut. Ins. Co., 118 N.H. 318, 320

(1978); Schofield v. E.R. Bates & Co., 90 N.H. 31, 3 A.2d 818,

820 (1939). The court notes, however, that the allocation of the

burden is not dispositive in this case. 

34

to the Town of Madison. The purpose of this mutual

release is to buy peace, terminate all other disputes

and further litigation. This release is given and

received in settlement of disputed matters and does not

operate as an admission of liability by any of the

signatories.

Id. (emphasis added).

Although the superior court never entered judgment in the

town’s lawsuit, the defendants correctly assert that the

settlement of a lawsuit can have preclusive effects on a

subsequent lawsuit. See Nottingham Partners v. Trans-Lux Corp.,

925 F.2d 29, 31-32 (1st Cir. 1991). Release is an affirmative

defense with the burden of establishing its applicability resting

with the defendants. See id. at 32 (citing Fed. R. Civ. P.

8(c)).10 In ascertaining the effect of the mutual release on

Bourne’s claims, the court looks to state law. See id. at 33.

Ordinary principles of contract formation and interpretation

apply to releases. See Huguelet v. Allstate Ins. Co., 141 N.H.

777, 779 (1997). In interpreting the contract, the court must

ascertain “the intention of the parties at the time it was

made[,]” by considering “the written agreement, all its

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 34 of 49
35

provisions, its subject matter, the situation of the parties at

the time it was entered into and the object intended.” 

Commercial Union Assur. Co. v. Brown Co., 120 N.H. 620, 623

(1980). The parol evidence rule, however, dictates that “absent

fraud, duress, mutual mistake, or ambiguity, [the court] must

restrict [its] search for the parties’ intent to the words of the

contract.” Parkhurst v. Gibson, 133 N.H. 57, 62 (1990). 

Contract interpretation is a legal question for the court. 

Huguelet, 141 N.H. at 779. 

To invoke the release defense, the defendants must establish

that the release “(1) applied to [defendants], (2) encompassed

the claims asserted [in the present lawsuit], and (3) was legally

enforceable.” Nottingham Partners, 925 F.2d at 32; cf. Barnes v.

N.H. Karting Ass’n, Inc., 128 N.H. 102, 107 (1986) (noting, in

the context of a negligence action, that the plaintiff’s claims

“must have been within the contemplation of the parties at the

time of the execution of the agreement”). 

Bourne concedes that the first requirement is met. He

argues, however, that the release was not intended to encompass

his present claims and that it is not legally enforceable. The

court considers the latter argument first because, if Bourne is

correct, it would prevent the release from being applied to any

of Bourne’s claims. 

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 35 of 49
11“The six factors are: (1) plaintiff’s education and

business experience; (2) the respective roles of the employer and

employee in . . . determining the provisions of the waiver; (3)

the clarity of the agreement; (4) the time plaintiff had to study

the agreement; (5) whether plaintiff had independent advice, such

as that of counsel; and (6) the consideration for the waiver.” 

281 F.3d at 276 n.4. 

36

Citing the six-factor “totality of the circumstances” test

outlined by the First Circuit in Melanson v. Browning-Ferris

Indus., Inc., 281 F.3d 272, 276 n.4 (1st Cir. 2002),11 Bourne

argues that his execution of the release was not knowing or

voluntary. Although Melanson concerned the validity of a release

of federal statutory rights, see id. at 274 (noting that a

release of rights under Title VII is valid if it is “knowing and

voluntary, as evidenced by the totality of the circumstances”),

the New Hampshire Supreme Court has considered similar factors in

actions seeking to rescind a release. See, e.g., Webber v.

Phipps, 95 N.H. 1, 56 A.2d 538, 539-40 (1948); Graham v. Weber,

79 N.H. 393, 109 A. 717, 718 (1920). 

Bourne argues that he lacked the business acumen to

effectively negotiate the release because he was not educated

beyond high school and he is a self-employed hardwood floor

contractor. He further argues that he had “essentially no role

in drafting” the release, that the meaning of release was not

clear to him, that he was not represented by counsel at the time

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 36 of 49
37

he executed the release, and that the consideration was

inadequate because the defendants did not deliver on their

promises and later threatened criminal prosecution. Bourne also

suggests that he executed the release under duress, claiming that

he and his wife were “under a tremendous amount of stress and

pressure from the Town to rescind the [revised waiver] and have

the action against them dropped.” Bourne Obj. at 22. 

The court finds no genuine issue of material fact as to the

validity of the release. Bourne concedes that he has a high

school diploma and that he runs his own business. As a selfemployed contractor, he presumably has some experience with

negotiating contracts. Moreover, the fact that Bourne purchased

a fifty-acre parcel of land, which he apparently sought to

improve and to subdivide into lots, further undermines his selfportrayal as a person unable to comprehend the terms of a mutual

release. Cf. Caban Hernandez v. Philip Morris USA, Inc., 486

F.3d 1, 9 (1st Cir. 2007) (upholding the validity of an

employer’s release where the plaintiffs all had high-school

diplomas and business experience).

The plain language of the mutual release, which was fully

contained on one page in four sentences, was well within the

comprehension of a lay person. Cf. Melanson, 281 F.3d at 277. 

Bourne states that he “understood that the ‘release’ related only

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 37 of 49
38

to the claims asserted by the Town in the action it brought

against me.” First Bourne Aff. ¶ 28. Since the revised waiver

was the subject of the town’s lawsuit, Bourne’s concession means

that he understood that the mutual release waived any claim the

town had concerning that agreement. The court rejects, as

contradicted by the plain language of the release, Bourne’s

implausible assertion that he failed to comprehend that the

mutual release also waived his claims pertaining to the revised

waiver. 

The fact that Bourne did not draft the release does not cut

strongly in his favor given the lack of evidence establishing

that the negotiations surrounding the release were one-sided. 

See Caban Hernandez, 486 F.3d at 9. Bourne’s allegation that the

town pressured him to sign the release without the advice of

counsel also lacks support. Bourne concedes that his former

attorney “had some communications with Town counsel regarding the

alleged release,” Bourne Obj. at 22, and the record establishes

that Bourne had hired attorneys in relation to his tug-of-war

with the town both before and after execution of the release. 

See Melanson, 281 F.3d at 278 (noting that the plaintiff “could

have contacted the same attorney she had spoken to just months

earlier” with respect to a related employment matter). Nor is

there any evidence that the town rushed Bourne into signing the

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 38 of 49
39

release. To the contrary, Bourne’s affidavit suggests that any

pressure was self-inflicted. See First Bourne Aff. ¶ 27 (“[M]y

wife and I were very anxious and stressed about the lawsuit the

Town filed against us and so we hoped if we acted quickly on

their proposal, the problems with the Town would be behind us.”);

see Goodwin R.R., Inc. v. State, 128 N.H. 595, 605 (1986)

(finding of duress requires party challenging the contract to

show, inter alia, “that the coercive circumstances were the

result of the other party’s acts, that the other party exerted

pressure wrongfully, and that under the circumstances the party

had no alternative but to accept the terms set out by the other

party”).

Finally, Bourne’s argument concerning the failure of the

town to provide adequate consideration is misplaced. Bourne

claims that Arruda made oral representations that the town would

grant him a building permit and would relocate the public rightof-way to the perimeter of his property. But these promises are

not reflected in the written release agreement. Even if Arruda’s

alleged oral statements are admissible under an exception to the

parol evidence rule, see Goodwin, 128 N.H. at 605 (parol evidence

admissible to establish consideration), Bourne’s affidavit

indicates that they pertained only to the second revised waiver,

not to the mutual release agreement. Bourne stated that Arruda

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 39 of 49
40

had told him that if he “‘gave back’ the ‘waiver agreement’ and

signed a new one, the Town would drop the lawsuit against [him],

grant [him] a building permit, and allow [him] to relocate the

alleged road/trail to the outside perimeter of [his] property

[subject to a public hearing on the relocation].” First Bourne

Aff. ¶ 26. 

Viewing the record as a whole, including Bourne’s affidavit,

it appears that Bourne and the town first negotiated a settlement

of the town’s lawsuit. It was during these negotiations that

Bourne alleges Arruda made the oral promise to relocate the

right-of-way. Regardless of whether such a promise was made,

Bourne ultimately signed a new waiver agreement superseding the

old one. With the exception of the promise to relocate the

right-of-way, the second revised waiver explicitly provided the

terms of the settlement agreement outlined above. The town then

stipulated to dismissal of its lawsuit with prejudice and granted

a building permit to Bourne. 

The parties subsequently executed a mutual release whereby

both parties agreed to waive any claims they had against each

other arising from the town’s lawsuit. The mutual release was an

agreement reached separately from the settlement agreement, and

the consideration to each party of the release was simply the

purchase of “peace.” Such consideration is valid and was not

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 40 of 49
41

undermined when the county sheriff later investigated Bourne’s

accusations of forgery and the town’s counter-accusation that

Bourne’s accusation was false. Notably, it was Bourne, not the

town, that caused the initiation of the criminal investigation. 

In any event, the release did not purport to immunize the parties

from criminal liability, nor could it. 

Therefore, the court concludes that there is no genuine

issue of material fact as to the enforceability of the mutual

release. The Melanson factors overwhelmingly favor a finding

that Bourne knowingly and voluntarily executed the release. Cf.

Caban Hernandez, 486 F.3d at 10 (affirming summary judgment based

on the validity of the defendants’ releases). Accordingly, the

court next considers the scope of the release and its effect on

Bourne’s specific claims.

3. Scope of the Mutual Release

The release was written broadly to immunize both parties

“from all claims arising out of” the town’s lawsuit. At a

minimum, this language purports to extinguish any controversy at

issue in the town’s lawsuit. The only apparent limit is the

narrow carve-out allowing Bourne the right to challenge the legal

status of Solomon Harmon Road. Presumably, it was this exception

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 41 of 49
42

that allowed Bourne to bring the proceedings that are currently

pending in the superior court.

The release further explains that its purpose is “to buy

peace, [and] terminate all other disputes and further

litigation.” This language, which mirrors New Hampshire Supreme

Court precedent concerning releases, suggests that the object of

the mutual release was not simply to put an end to the existent

controversies, but also to bar future controversies respecting

the same set of operative facts. See Huguelet, 141 N.H. at 779-

80 (distinguishing releases that purchase peace against future

controversy from releases that merely compensate for injuries);

Cogswell v. Boston & M.R.R., 78 N.H. 379, 101 A. 145, 147, 148

(1917) (holding that, because the purpose of the release was “to

terminate all dispute and litigation” between the parties, a

mutual mistake as to the extent of the plaintiff’s injuries was

not a basis for rescinding the release).

The central focus of the town’s lawsuit was the revised

waiver. Three of Bourne’s state law claims in this action

directly pertain to that agreement. Bourne first claims that the

defendants breached the revised waiver by failing to provide him

with a building permit, by contesting the validity of the

agreement, and by filing a state lawsuit against Bourne seeking

to rescind the agreement. Because the mutual release extends at

Case 1:05-cv-00365-JD Document 104 Filed 06/29/07 Page 42 of 49
43

a minimum to controversies that were pertinent to the town’s

lawsuit, such as questions as to the validity or enforceability

of the revised waiver, it bars Bourne’s breach of contract

action. The terms of the settlement agreement, as manifested in

the second revised waiver, also obviate any claims relating to

the revised waiver.

Bourne next alleges that the defendants fraudulently

represented to him that the Solomon Harmon Road is a class VI

road knowing that it was not. He also claims that the selectmen

forged, or caused the forgery, of his signature on a phony cover

letter in an attempt to strengthen the town’s argument in favor

of rescission of the revised waiver. As a result of these

deliberate misrepresentations, Bourne argues, he agreed to

rescission of the revised waiver. 

As described above, the mutual release extinguished any

disputes that were pending between Bourne and the town at the

time the town’s lawsuit was settled. Bourne’s allegation that

the defendants forged the cover letter parallels his petition in

the town’s lawsuit that argued that the town had manipulated the

cover letter. Thus, to the extent Bourne’s fraud claim is based

on the allegedly forged cover letter, it is barred by the mutual

release. To the extent that Bourne claims that the release was

itself fraudulently induced, or that the town continued to make

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fraudulent representations after settlement of the 2003 lawsuit,

the record does not support such claims.

To establish fraud, Bourne must prove “that the defendant[s]

made a representation with knowledge of its falsity or with

conscious indifference to its truth with the intention to cause

another to rely upon it[,]” and that he, in fact, justifiably

relied on that misrepresentation. Snierson v. Scruton, 145 N.H.

73, 77 (N.H. 2000). Fraud is never presumed; it “must be

established by clear and convincing proof, not ‘implied from

doubtful circumstances which merely awaken suspicion.’” Brochu

v. Ortho Pharm. Corp., 642 F.2d 652, 662 (1st Cir. 1981) (quoting

Lampesis v. Comolli, 101 N.H. 279, 283 (1958)).

As described above, however, the court has already

determined that Bourne’s forensic document examiner is not

qualified to testify as to the origin of the document containing

the alleged forgery. See supra at 21-22. Thus, even if Bourne

could establish that the signature on the disputed cover letter

is a forgery, he has not presented convincing evidence

establishing that it originated from the defendants. Similarly,

regardless of the bona fide legal status of the Solomon Harmon

Road, Bourne has not presented evidence establishing that the

defendants knowingly misrepresented the legal status of the road. 

Rather, the record establishes that the defendants relied on the

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1998 Madison Class VI Road Study Committee report identifying

Solomon Harmon Road as a class VI road.

Bourne’s third state law claim is that the Madison

selectmen, Arruda, Graves, and Crafts, negligently misrepresented

their assent to the revised waiver by signing, notarizing, and

recording it without reading it or showing it to town counsel. 

In reliance on the town’s apparent acceptance of the terms of the

revised waiver, Bourne argues, he completed the purchase of the

fifty acres in Madison. Bourne also alleges that the defendants

on several occasions negligently misrepresented that the Solomon

Harmon Road is a class VI road.

The court finds that these claims are also barred by the

mutual release. As explained above, the revised waiver, and the

circumstances under which it was executed, were directly at issue

in the town’s lawsuit. Although Bourne did not allege a claim of

negligent misrepresentation during the course of the town’s

lawsuit, the claim arises from the same set of operative facts

that were in dispute in that lawsuit. Accordingly, the court

finds that this claim was within the contemplation of the parties

at the time they executed the mutual release.

Lastly, Bourne claims that the defendants tortiously

interfered with his attempts to improve his property. To prevail

on a claim for tortious interference with contractual relations,

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Bourne must prove that (1) he had an economic relationship with a

third party, (2) the defendants knew of this relationship, (3)

the defendants intentionally and improperly interfered with this

relationship, and (4) Bourne was damaged by such interference. 

Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 40-41 (2005)

(citing Demetracopoulos v. Wilson, 138 N.H. 371, 373-74 (1994)).

This claim concerns Bourne’s attempts to hire a contractor

to lay crushed stone and gravel on Solomon Harmon Road and to

connect his property to the electrical grid. In December 2003,

the Madison chief of police ordered Bourne’s contractor to cease

work on the road because he was not using the grade of gravel

required for a public road. The following spring, Bourne

received inconsistent communications from town counsel concerning

his proposal to make repairs to the road. First, town counsel

represented that the selectmen had approved Bourne’s proposal,

but later that same day, he represented that the selectmen had

voted not to approve it. 

In May 2004, the town ordered the New Hampshire Electrical

Cooperative to cease installation of power lines along Solomon

Harmon Road until obtaining the necessary pole setting permits. 

Bourne does not dispute the town’s basis for halting the work,

but alleges that the town wrongfully delayed issuance of a

“conditional license” that would have allowed the Electrical

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Cooperative to finish its work pending acquisition of the

permits. Because Bourne believed that the town would not grant a

conditional license, he paid his neighbor for an easement over

his property on which to run the power lines. Bourne

acknowledges that, months later, on the day he completed purchase

of the easement, the town issued the conditional license.

The defendants do not explicitly argue that the mutual

release bars these claims. Because the facts surrounding these

claims occurred after the parties executed the mutual release,

and these claims do not directly concern the revised waiver, the

mutual release does not bar them. Nevertheless, the defendants

argue that this “matter is subsumed by the state court

litigation, and the superior court has directly addressed this

issue.” Defendants’ Supp. Mem. at 15. The defendants argue that

the Rooker-Feldman doctrine precludes this claim because the

superior court has already ruled that the town’s actions were

lawful. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C.

Court of Appeals v. Feldman, 460 U.S. 462 (1983).

Rooker-Feldman only applies to “cases brought by state-court

losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.” 

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517,

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1521-22 (2005). As explained in a previous ruling, the RookerFeldman doctrine cannot apply here because the state proceedings

had not “ended” before Bourne filed his federal lawsuit. See

Order of May 9, 2006 (document no. 95) (citing Federacion De

Maestros De P.R. v. Junta De Relaciones Del Trabajo De P.R., 410

F.3d 17, 24-27 (1st Cir. 2005)). In fact, the state proceedings

are still pending.

The defendants have not presented any alternative argument

for granting summary judgment on this claim. To be sure, a

ruling by the superior court is likely to answer the question of

whether the defendants had the authority to prevent Bourne from

making improvements to the road. If the defendants prevail in

the state case, they can argue the doctrine of collateral

estoppel mandates a finding that the defendants’ interference was

not improper. But the superior court has not yet ruled, and

lacking any developed argumentation on this claim, the court will

not grant summary judgment. 

III. Conclusion

Consistent with the above, the defendants’ motion to dismiss

or to stay proceedings (document no. 76) is granted to the extent

of the parties’ agreement as outlined by this court in its May 3,

2007 order (document no. 93), and in all other respects it is

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denied. The defendants’ motion for summary judgment (document

no. 25) is denied as to the plaintiff’s claim of tortious

interference with contractual relations, but is granted in all

other respects.

The parties are reminded that they shall promptly notify the

court when the Carroll County Superior Court has issued its

ruling in the related state action. Further, the parties would

be well advised to review their positions in light of the court’s

ruling on the summary judgment motion and make a good faith

effort to resolve this case promptly.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 29, 2007

cc: Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

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