UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

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

Town of Madison, et al.

O R D E R

Samuel J. Bourne, who is proceeding pro se, brought federal

and state claims against the Town of Madison, its selectmen, and

a resident of Madison, challenging their actions in regard to

property he owns in Madison and a right-of-way that runs across

his property. Through motion practice, all but one of the claims

have been resolved against Bourne, leaving his claim for

intentional interference with contractual relations. Bourne and

the defendants each move for summary judgment on that claim and

each opposes the other’s motion.1

1The defendants argue in part that Bourne’s motion for

summary judgment is untimely. Under the scheduling order, as

amended by the defendants’ assented-to motion, motions for

summary judgment were due before October 21, 2006. However, both

the plaintiff and defendants now contend that the single

remaining claim in this case can be resolved through summary

judgment. Therefore, before the court and the parties commit the

resources necessary for a trial, it is prudent to consider

motions for summary judgment.

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 1 of 32
Standard of Review

Summary judgment is appropriate when “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to 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). All reasonable inferences and all

credibility issues are resolved in favor of the nonmoving party. 

See id. at 255. 

When parties file cross-motions for summary judgment, the

court must consider the motions separately to determine whether

summary judgment may be entered under the Rule 56 standard. Pac.

Ins. Co., Ltd. v. Eaton Vance Mgmt., 369 F.3d 584, 588 (1st Cir.

2004); Bienkowski v. Northeastern Univ., 285 F.3d 138, 140 (1st

Cir. 2002). In assessing the motions, the court must determine

whether either of the parties deserves judgment as a matter of

law on facts that are not disputed.” Estrada v. Rhode Island,

594 F.3d 56, 62 (1st Cir. 2010).

2

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 2 of 32
I. Properly Supported Motion for Summary Judgment

The defendants challenge the factual basis Bourne provided

to support his motion for summary judgment. Instead of filing an

affidavit to support the factual statements in his motion, Bourne

attempted to verify the entire nineteen-page motion with the

following statement, known as a jurat: “Respectfully Submitted,

under oath and under the pains of perjury that each and every

detail stated within this motion for Summary Judgment is believed

to be the truth and nothing but the truth.” Bourne signed and

dated his motion following that statement.

To support a motion for summary judgment, an affidavit must

“be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(e)(1). “This

‘requisite personal knowledge must concern facts as opposed to

conclusions, assumptions, or surmise.’” Livick v. Gillette Co.,

524 F.3d 24, 28 (1st Cir. 2008) (quoting Perez v. Volvo Car

Corp., 247 F.3d 303, 316 (1st Cir. 2001)). Personal knowledge,

for purposes of an affidavit, cannot be based on a belief that

certain things are true. See, e.g., Quinones v. Buick, 436 F.3d

284, 291 (1st Cir. 2006); Nat’l Tower, LLC v. Plainville Zoning

Bd. of Appeals, 297 F.3d 14, 24 n.4 (1st Cir. 2002); Perez, 247

F.3d at 315.

3

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 3 of 32
Therefore, because Bourne’s jurat states only that he

believes the facts in his motion are true, it is ineffective to

convert the motion to an affidavit for purposes of summary

judgment. Under the local rules of this district, “[a]

memorandum in support of a summary judgment motion shall

incorporate a short and concise statement of material facts,

supported by appropriate record citations, as to which the moving

party contends there is no genuine issue to be tried.”2 LR

7.2(a)(1). Although Bourne attempted to cure the deficiency of

the motion jurat in his reply, even if the jurat used in the

reply met the requirements of Rule 56(e), a reply cannot be

substituted for the motion.3

To the extent the facts Bourne states in the “Background”

section of his motion are properly supported by citations to the

record, those facts will be considered for the purpose of

2Bourne did not file a memorandum, as required by Local Rule

7.1(a)(2), or incorporate a statement of material facts, as

required by Local Rule 7.2(a)(1), with his motion for summary

judgment.

3Bourne concluded his reply with the statement: 

“Respectfully Submitted, under oath and under the pains of

perjury that each and every detail stated within this reply to

defendant’s objection to Plaintiff’s motion for summary judgment

is based on personal knowledge and believed to be the truth and

nothing but the truth.” Bourne’s reply, however, does not meet

the personal knowledge requirement because it is rife with

statements of his opinion, conclusions, and assumptions.

4

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 4 of 32
deciding his motion. Facts stated in the motion that are not

properly supported will not be considered. Bourne used the same

jurat in signing his objection to the defendants’ motion for

summary judgment that he used in his reply. The defendants did

not challenge Bourne’s attempt to convert his objection to an

affidavit. In the absence of an objection from the opposing

party, any inadequacy in the jurat is waived for purposes of the

pending motion for summary judgment. See Desrosiers v. Hartford

Life & Accident Co., 515 F.3d 87, 91 (1st Cir. 2008).

II. Background4

In 2002, Bourne, a resident of Massachusetts, bought a

fifty-acre parcel of land, with a small cabin, in Madison, New

Hampshire, which parcel abuts a large tract of conservation land

where the town permitted snowmobile use. Access to the cabin was

provided over a roadway known as Solomon Harmon Road, which at

that time the town considered to be a Class VI highway under

state law. Before Bourne bought the property, the town had

adopted a regulation that allowed snowmobiles to use certain

Class VI roads. The dispute that arose between Bourne, the town,

4The background information is taken from the factual

statement included in the order dated June 29, 2007, and the

parties’ properly supported facts, submitted in support of the 

motions and objections.

5

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 5 of 32
and Bourne’s neighbors was due, at least in part, to Bourne’s

efforts to bar the public from using Solomon Harmon Road for

snowmobiling. 

In November of 2002, Bourne hired the New Hampshire Electric

Co-op to construct electric lines to the cabin on his property

with an estimated cost of $6,662. Problems developed between

Bourne and the town about the installation of poles and electric

lines along Solomon Harmon Road. In addition, a dispute arose

between Bourne and his neighbors, the Cyrs, about the use of

Solomon Harmon Road. 

A. Dispute with the Cyrs

In late 2002, the Cyrs filed an action in state court

seeking injunctive relief to protect their use of that part of

Solomon Harmon Road which ran over Bourne’s property. In his

answer, Bourne charged that the Cyrs had blocked New Hampshire

Electric Co-Op from beginning pole installation along the

roadway. Bourne also filed suit against the Cyrs in state court,

alleging interference with his use of the roadway.

On May 7, 2003, the state court found that the Cyrs had

satisfied their burden for the issuance of a preliminary

injunction to enjoin Bourne “from obstructing in any way the use

of the subject right-of-way by the Petitioners. Neither party

6

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 6 of 32
shall cut trees or modify the said right-of-way in any way

without prior Court approval.” The court also ordered that the

Cyrs did not have the right to delegate use of the right-of-way

to anyone other than their immediate family for the use of a

“mechanized vehicle” and that all use was limited to the “‘marked

trail.’” A few months later, the state court ordered, pursuant

to an agreement reached between the parties:

that [Bourne] may cause to be installed an electrical

pole(s), anchors, and wires to service his property. 

Said electrical pole(s), anchors, and wires shall be

placed only within the subject 30-foot right-of-way and

shall not obstruct the use of same. Further, in

installing said electrical pole(s), anchors, and wires

trimming of the trees, regardless of their location,

will be allowed. No tree shall be destroyed and or

[sic] removed.

Cyr v. Bourne, 02-E-130 (N.H. Superior Ct. Sept. 15, 2003). 

On November 6, 2003, the state court approved an agreement

between the Cyrs and Bourne which provided that the access road

to Bourne’s property was a Class VI highway, known as Solomon

Harmon Road; that under Bourne’s agreement with the town, Bourne

was responsible for maintenance of the road; that Bourne would be

allowed to repair the road “with oversight by the Madison

Selectmen”; that before making necessary repairs, Bourne must

meet with the selectmen to gain approval for his proposed

repairs; that notice of the repairs would be provided to the

Cyrs; and that after the road was repaired, Bourne would be

7

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 7 of 32
“permitted to snow plow and sand the said roadway in the normal

and customary manner.”

An inspection of the road area was done on November 18,

2003, by a group that included the superior court judge. 

Following a meeting of the selectmen, town counsel sent a letter

to Bourne’s counsel on November 19, 2003, which detailed the

actions the selectmen had approved for the road. The letter

confirmed that Solomon Harmon Road was a Class VI road, stated

its location and required Bourne to agree to that location, and

stated that Bourne was required to provide a survey of the road

before any permanent improvements were made. The letter further

provided that if the stated conditions were met, Bourne would be

allowed to make temporary improvements to the road by filling

ruts and spreading “one and a half inch crushed bank run gravel”

but would not be allowed to cut or remove trees within the road’s

right-of-way or spread or use any of the stone that was then

piled on Bourne’s property. With respect to permanent

improvements to the road, Bourne was required to make a written

proposal with certain specifications to the Board of Selectmen. 

The letter also stated that the selectmen had agreed to accept,

review, and approve Bourne’s application for installing utilities

within the right-of-way for Solomon Harmon Road. The letter

summarized the remaining issues to be resolved with Bourne and

8

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 8 of 32
addressed the current use status of the property and improvements

Bourne had made to the cabin without a building permit. 

During the fall of 2003, Bourne hired Richard Verrochi to

repair the road. In early December, 2003, Verrochi used crushed

stone, topped with bank run crushed gravel, to fill ruts and to

cover the road, contrary to the directions given by the town for

repair work on the road. The Madison police chief ordered

Verrochi to stop all repair work on the road.

In January of 2004, the superior court issued a decision in

consolidated cases Cyr v. Bourne, 02-E-130, and Bedrock Realty

Trust v. Cyr, 03-E-120, allowing Bourne to maintain the right-ofway during the winter by plowing and lightly sanding the surface,

as provided in the parties’ agreement that had been approved by

the court in November of 2003. The order prohibited Bourne from

putting down “heavy levels of gravel and crushed stone” and from

obstructing the Cyrs’ use of the right-of-way. The court granted

Bourne’s motion to remove timber within the right-of-way

conditioned on Bourne showing a purchase and sale agreement for

the modular home that he represented he was buying and on Bourne

hiring a professional tree removal service to do the work.

In the same order, the superior court held that Bourne was

in willful contempt of the court’s previous orders (issued on May

6, 2003, and November 6, 2003) pertaining to improvements to

9

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 9 of 32
Solomon Harmon Road. The court ordered Bourne to remove all

stone that he had caused to be spread on the right-of-way and to

comply with all of the terms of the court’s previous orders. The

court also awarded attorneys’ fees to the Cyrs, concluding that

Bourne’s oppressive, vexatious, arbitrary, capricious, or bad

faith conduct had begun or unnecessarily prolonged the litigation

and that the Cyrs had been forced to litigate when Bourne’s

position was patently unreasonable. The court granted the Cyrs’

motion to dismiss Bourne’s suit, 03-E-120.

A hearing was held in Cyr v. Bourne, 02-E-130, on May 3,

2005. At the hearing, Bourne offered the testimony of Larry

Martin, who worked for the New Hampshire Electric Co-op. Martin

testified that the town police chief ordered his crew to stop

work along Solomon Harmon Road, where they were cutting trees in

preparation for installing utility poles, and that Roger Cyr was

present when that occurred. During a deposition, Selectman

Graves testified that the selectmen told the police chief to stop

the work on Solomon Harmon Road.

On May 18, 2006, Bourne and the Cyrs entered a stipulation

concerning work to be done on the roadway.5 The Cyrs agreed to

5Bourne represents that the litigation with the Cyrs ended

in a settlement, after the court ruled that the Cyrs did not have

deeded rights to the roadway over Bourne’s property, and that the

Cyrs paid Bourne $8,450 as part of the settlement. Bourne did

10

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 10 of 32
allow Bourne to cut several marked trees within the roadway

easement for purposes of installing electric poles and lines. 

They also agreed that the power lines would be erected on the

easement Bourne obtained from another neighbor, Davis, not on

Solomon Harmon Road. Bourne also agreed that the Cyrs could cut

trees necessary to install underground power lines to their

house.

B. Dispute with the Town

During the same period, Bourne sought a building permit for

his property. The town required Bourne to sign a waiver

agreement to relieve the town of maintenance and liability with

respect to Solomon Harmon Road. The town faxed a standard form

agreement to Bourne, which Bourne sent to his attorney. Bourne’s

attorney revised the agreement, adding provisions that the town

could not use the part of Solomon Harmon Road that crossed

Bourne’s property and that the town would not reclassify the road

without Bourne’s consent. Bourne signed the revised waiver and

sent it back to the town. The town recorded the revised waiver

without reading it. 

Once the waiver form was recorded, Bourne erected a chain

not file any evidence to support his statement.

11

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 11 of 32
across Solomon Harmon Road at the entrance to his property. The

Madison code enforcement officer removed the chain. In November

of 2002, Bourne hired a contractor to build a gate across the

road. The code enforcement officer informed the contractor that

the town would remove the gate if it were constructed. The town

removed the gate on December 4, 2002. 

Selectman John Arruda discovered that the recorded waiver

form was not the standard form and sent Bourne a letter stating

that the waiver was, therefore, invalid because the selectmen

lacked authority to restrict public access to a town road without

first convening a town meeting to consider the issue. Arruda

told Bourne that if he wanted a building permit it would be in

his best interest to sign the standard waiver which Arruda

attached to the letter. A dispute arose between Bourne and the

town about whether Bourne’s cover letter, which accompanied the

revised waiver, notified the town that the provisions of the

waiver had been changed. 

On November 11, 2002, Robert King, a resident of Madison who

had served on the Class VI Road Study Committee in 1998, sent a

memorandum to the selectmen about granting building permits for

property on Solomon Harmon Road. King advised that the waiver

Bourne signed was invalid, that a new agreement should be signed

and recorded, and that the town’s defense to a suit brought by

12

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 12 of 32
Bourne should be that the selectmen did not add the provisions

that invalidated the waiver. The code enforcement officer denied

Bourne’s request for a building permit on November 12, 2002.

The town filed suit on January 10, 2003, in state court,

seeking rescission of the recorded revised waiver and an

injunction to prevent Bourne from interfering with the public’s

use of Solomon Harmon Road. Bourne filed a petition, also in

state court, accusing the town of forging the cover letter that

it represented it had received with the revised waiver and asking

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

Bourne a building permit. Before a ruling in the town’s case,

Arruda offered a settlement that if Bourne signed a new waiver,

the town would drop its suit and issue a building permit.6 The

case was settled in May of 2003. Bourne signed a new waiver; the

parties signed a release; and the town issued Bourne a building

permit on May 7, 2003.7 The town’s suit was dismissed.

Bourne filed four suits against the town. In the three

6Bourne remembered that the town also offered to relocate

the public trail, after a hearing, so that use of the trail would

not interfere with Bourne’s use and enjoyment of his property.

7The record shows that in a letter dated February 6, 2004,

the town code enforcement officer notified Bourne that his

building permit was revoked due to his failure to meet the

condition that the land area for building had to be taken out of

current use designation.

13

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 13 of 32
suits filed in 2003, Bourne sought relocation and widening of the

roadway (03-E-061), removal of the road’s Class VI status (03-E114), and injunctive relief to prohibit the town from allowing

snowmobiles and other vehicle use of the road (03-E-144). Later,

on February 24, 2005, Bourne appealed the decision of the

selectmen to lay out Solomon Harmon Road as a Class VI road (05-

E-014). All four suits were eventually consolidated.

Following a hearing before the selectmen, the town denied

Bourne’s petition to relocate Solomon Harmon Road to a location

at the perimeter of his property, concluding that it would be

contrary to the public interest to locate the public trail at a

place away from the recorded easement. In October of 2003, the

town denied Bourne’s request to subdivide his property into four

lots due to the inadequacy of the access road. Bourne had the

right-of-way area surveyed, which was completed on April 28,

2004. 

 At a selectmen’s meeting on November 18, 2003, Bourne

raised the subject of erecting electrical poles along Solomon

Harmon Road. The meeting notes state that Bourne’s counsel would

submit a proposal for that project. A letter from town counsel

to Bourne’s counsel, sent on November 19, 2003, summarized the

issues that then existed between the town and Bourne. The letter

stated, among other things, that before the selectmen would

14

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 14 of 32
approve improvements to Solomon Harmon Road, Bourne would have to

provide a survey of the road by a licensed surveyor. Once a

survey was obtained, Bourne would be permitted to make temporary

improvements to the road by filling in ruts and spreading “one

and a half inch crushed bank run gravel.” Bourne was prohibited

from removing trees or using the stone located on his property on

the road.

In Bedrock Realty Trust [Bourne] v. Town of Madison, 03-E144 (N.H. Superior Ct. November 25, 2003), the court granted in

part and denied in part Bourne’s request for temporary injunctive

relief. The court imposed “temporary provisions” on the parties

“pending final resolution” of the case. The court ordered Bourne

not to “interfere with or limit the public use or access to the

so-called Solomon Harmon roadway in any way; nor shall the [town]

interfere with the reasonable use of Lot 19 by [Bourne].” Id.

The remainder of the order pertained to the town’s obligations

with respect to Solomon Harmon Road for public snowmobile use. 

After the winter of 2003 to 2004, Bourne hired Hanson

Excavation to repair the roadway and to make improvements that

were necessary before electrical poles could be installed. In a

letter to Bourne’s counsel, dated April 14, 2004, town counsel

stated that the selectmen had reviewed the proposed construction

but voted not to approve it. The letter stated that if Hanson

15

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 15 of 32
submitted a new proposal that did not include cutting trees the

selectmen would consider it. The letter also advised Bourne’s

counsel about the procedure for submitting a request for current

use assessment. 

In May of 2004, the New Hampshire Electric Co-op submitted a

revised pole plan, with an estimated cost of $9,753, and also

notified Bourne that the selectmen had informed the Co-op that

the location of the Class VI road was being surveyed and that the

Co-op would have to obtain pole setting permits before beginning

work. Counsel for the town notified Bourne’s attorney about a

letter Bourne sent to the selectmen and explained that the

selectmen were reluctant to approve the repairs Bourne proposed

because of the “liberties” Bourne had taken in the past and

because the survey was not complete. Counsel also stated that

the selectmen had driven on the road and found that it was

passable in its current condition.

 On October 19, 2004, Bourne submitted a memorandum to the

selectmen addressing a variety of issues. He stated that the

access road needed repair before the first snow in order to

permit access during the winter, that the New Hampshire Electric

Co-op notified Bourne that the town was preventing them from

installing power lines to Bourne’s property, and that he should

be issued a building permit immediately. During a deposition

16

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 16 of 32
taken in this case, Selectman Graves testified that the selectmen

told the chief of police to stop the electrical service work on

Solomon Harmon Road.

On April 25, 2006, Bourne purchased an easement from another

neighbor, David Davis, to allow electrical service to be brought

from the street to Bourne’s house. The new easement ran along

Solomon Harmon Road. The same day, the selectmen granted the New

Hampshire Electric Co-op a license to install electric service

under the plan submitted the year before. A construction

estimate, dated April 7, 2006, to install electric service to

Bourne’s property totaled $22,967.05.

Bourne filed suit in this court on October 17, 2005,

alleging federal civil rights claims and state law claims against

the town; selectmen Arruda, Graves, and Crafts; and Robert D.

King. The state court litigation continued at the same time. On

June 29, 2007, the court granted summary judgment in favor of the

defendants on all of Bourne’s claims except his claim of

intentional interference with contractual relations. The state

court actions continued. The court also granted the parties a

limited opportunity to move for reconsideration of that order

based on the outcome in the state court litigation. 

A bench trial was held in state court in March of 2007 on

the consolidated cases brought by Bourne against the town. On

17

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 17 of 32
August 10, 2008, the superior court ruled that it lacked

authority to relocate the Kelsey Easement (which provided the

right-of-way known as Solomon Harmon Road) to a different place

on Bourne’s property, that the Kelsey Easement prohibited public

use of snowmobiles and other mechanized vehicles (with limited

exceptions); and that the town had not shown the existence of

Solomon Harmon Road by prescription or an occasion to lay out

Solomon Harmon Road as a Class VI road. The superior court

denied Bourne’s request for attorneys’ fees, stating: “Although

the Town did not prevail on any of the issues presented, the

court finds the town did not conduct itself or respond to this

litigation in a manner warranting attorneys’ fees.” Bedrock

Realty Trust v. Town of Madison, 03-E-0061, 03-E-0114, 03-E-0114,

05-E-0014, at *17-*18 (N.H. Superior Ct. Aug. 10, 2008). 

Bourne moved for an award of damages and for a hearing. On

June 30, 2008, the superior court awarded Bourne $698 in damages

for the cost of reinstalling his gate but denied his request for

other damages because those claims were not “sufficiently

causally related to the injunction previously issued by the

court.” The court concluded that a hearing was not warranted. 

The court also noted that Bourne’s request for damages caused by

the injunctions could not be granted because he failed to request

an injunction bond.

18

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 18 of 32
Bourne appealed the superior court’s decision to deny his

request for an award of fees and for damages, and the town

appealed the superior court’s determination that the easement was

not a Class VI highway. The New Hampshire Supreme Court

reiterated the superior court’s holding that the town had “no

right to allow public snowmobile access to [Bourne’s property]

pursuant to an easement granted to the town by [Bourne’s]

predecessor (easement) or a Class VI prescriptive highway, and

that the town had no ‘occasion’ to lay out a portion of the road

approaching the property . . . .” Bedrock Realty Tr. v. Madison,

Case No. 2008-0550, at *1 (N.H. Supreme Ct. May 14, 2009). The

supreme court affirmed the superior court’s ruling that the

easement was not a Class VI highway. 

The supreme court also affirmed the superior court’s

decision not to award attorneys’ fees, rejecting Bourne’s

argument that he had a “‘clearly defined’ right to preclude

public snowmobile access to [his] property that should not have

required litigation.” Id. at *2. The supreme court concluded

that the record did not show “that the litigation was instituted

or unnecessarily prolonged through the town’s oppressive,

vexatious, arbitrary, capricious or bad faith conduct, or that

the town’s position was patently unreasonable.” Id. (internal

quotation marks omitted). The court further stated: “While the

19

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 19 of 32
town’s position as to the existence of a Class VI highway may not

have been persuasive, it was not so lacking in evidentiary

support as to have entitled [Bourne] to attorney’s fees.” Id. at

*3.

With respect to Bourne’s request for a hearing and for

damages, the Supreme Court vacated the award of $698. The court

concluded that Bourne’s failure to request an injunction bond

precluded an award of damages arising from the injunctions. The

court also concluded that Bourne was not entitled to a hearing on

his claims for damages and for an award of attorneys’ fees. 

After the New Hampshire Supreme Court issued its decision,

Bourne moved for reconsideration in this court of this court’s

decision granting summary judgment in the defendants’ favor on

his claims except for his claim of intentional interference with

contract. His motion was denied. His subsequent motions for

reconsideration and for relief from judgment were also denied.

20

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 20 of 32
III. Bourne’s Motion for Summary Judgment

In support of his claim for intentional interference with

contract, Bourne alleges: “Defendants Board of Selectmen, John

R. Arruda, Jr., Clifford A. Graves, and Eileen T. Crafts

wrongfully interfered with the installation of electrical power

service and road maintenance being performed by contract by

Plaintiff and third parties (viz. New Hampshire Electric

Cooperative and various road maintenance contractors)[.]” 2d Am.

Compl. ¶ 70. The claim against Crafts has been dismissed

voluntarily, leaving the town, Arruda, and Graves as defendants. 

Bourne contends that he is entitled to summary judgment on

his claim against the town, Arruda, and Graves for intentional

interference with contract. The defendants object, asserting

that Bourne cannot show that their interference with maintenance

of the roadway was improper and that he cannot show that they

caused any damages with respect to interference with utility

service because of the interplay between the Cyr litigation and

the town’s actions.8

8Bourne urges the court to ignore the defendants’ references

to the Cyr litigation, arguing that “the defendant’s [sic] are

attempting to confuse the court with issues of a non-party Roger

Cyr’s interference with the Plaintiff’s deeded rights, in order

to side track the Court’s attention from the defendant’s [sic]

outrageous conduct.” Bourne, however, also discusses and

provides evidence of his disputes and litigation with the Cyrs. 

Therefore, Bourne provides no persuasive ground for ignoring the

21

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 21 of 32
When the party with the burden of proof moves for summary

judgment, the moving party “must provide evidence sufficient for

the court to hold that no reasonable trier of fact could find

other than in its favor.” Am. Steel Fabricators, Inc. v. Local

Union No. 7, 536 F.3d 68, 75 (1st Cir. 2008). A claim for

intentional interference with contractual relations requires

proof of the following elements: “‘(1) the plaintiff had an

economic relationship with a third party; (2) the defendant knew

of this relationship; (3) the defendant intentionally and

improperly interfered with this relationship; and (4) the

plaintiff was damaged by such interference.’” Singer Asset

Finance Co., LLC v. Wyner, 156 N.H. 468, 478 (2007) (quoting

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

Bourne provides evidence showing that at the time in

question he claimed as his property the right-of-way then known

as Solomon Harmon Road. Bourne also provides evidence that he

contracted with the New Hampshire Electric Co-op to install

electric service along the roadway to his property and with

contractors to repair the roadway. Evidence also supports

Bourne’s charge that the town knew of his plans to install

electric service and to make repairs to the roadway and acted to

circumstances that involved the Cyrs.

22

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 22 of 32
stop or limit Bourne’s plans. The defendants object, contending

that Bourne cannot show that their interference with repairs and

improvements to the right-of-way was improper or that their

actions caused his damages with respect to the delay in

installing electrical service to his property.

A. Interference with Road Maintenance and Improvement

Only improper interference with contractual relations is

actionable under New Hampshire law. Tsiatsios v. Anheuser-Busch,

Inc., 2009 WL 114557, at *5 (D.N.H. Jan. 16, 2009). Factors to

be considered in determining whether an actor’s interference is

improper are: 

(a) the nature of the actor’s conduct, 

(b) the actor’s motive, 

(c) the interests of the other with which the actor’s 

conduct interferes, 

(d) the interests sought to be advanced by the actor, 

(e) the social interests in protecting the freedom of 

action of the actor and the contractual interests of 

the other, 

(f) the proximity or remoteness of the actor’s conduct 

to the interference and

(g) the relations between the parties.

Roberts v. Gen. Motors Corp., 138 N.H. 532, 540-41 (1994)

(quoting Restatement (Second) of Torts, § 767 (1977)). In

contrast, conveying truthful information and honest advice to a

third person do not constitute improper interference with

contractual relations, and, further, actions taken in good faith

23

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 23 of 32
to protect a party’s own legitimate interests are not improper

interference. Tsiatsios, 2009 WL 114557, at *5 (citing

Restatement (Second) of Torts § 772, cmt. b and § 773 (1979));

see also Roberts, 138 N.H. at 541.

Bourne contends that the defendants’ actions in interfering

with repairs to the roadway were improper because the town did

not have a legal right to control the roadway. Bourne relies on

the state court’s subsequent conclusion that Solomon Harmon Road

was not a Class VI highway, that the town did not show that it

was a highway by prescriptive use or due to an “occasion” to lay

out the road, and that the town’s easement along the road did not

include the use of snowmobiles. The state court also concluded

that the record pertaining to the status of the right-of-way was

sufficiently ambiguous that Bourne did not have a clearly defined

right to exclude snowmobile access to the roadway and that the

town did not begin or prolong the litigation through “oppressive,

vexatious, arbitrary, capricious or bad faith conduct.” Bedrock

Realty Trust v. Madison, Case No. 2008-0550 (N.H. Supreme Ct. May

14, 2009). 

At the time in question, therefore, from 2002 through 2006,

the town could have believed, reasonably, that the roadway was a

Class VI highway, giving the town authority to control access and

work done to the road. Indeed, Bourne agreed in the settlement

24

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 24 of 32
reached with the town in May of 2003, that Solomon Harmon Road

was a Class VI highway. Further, the superior court’s orders

pertaining to maintenance of the road in the context of the

litigation with the Cyrs justified the town’s actions taken in

accord with the orders. 

Bourne’s suspicions, assumptions, and surmise about

malfeasance by the defendants do not provide evidence of an

improper purpose to support summary judgment in his favor. In

addition, the state court’s rulings about the status of Solomon

Harmon Road do not support Bourne’s theory that the defendants

acted improperly in their earlier dealings with him while the

town believed that it had the authority to control the road.

B. Interference with Installation of Electric Service

Bourne contends that the defendants’ interference with the

installation of electric service to his property delayed the

project which resulted in higher costs. The defendants argue

that because the installation of the electric utility service was

delayed by the litigation between the Cyrs and Bourne, any

interference by the town during that period did not cause

Bourne’s damages.

As Bourne points out, the superior court ordered in

September of 2003 that pursuant to the agreement between the Cyrs

25

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 25 of 32
and Bourne that Bourne could “cause to be installed an electrical

pole(s), anchors, and wires to service his property. Said

electrical poles(s), anchors, and wires shall be placed only

within the subject 30-foot right-of-way and shall not obstruct

the use of same.” 02-E-130 (Sept. 15, 2003) at *2. In January

of 2004, however, in the litigation between Bourne and the Cyrs,

the court addressed maintenance of the roadway for winter travel,

clearing trees along the roadway to allow delivery of a modular

home, and Bourne’s contempt of prior orders pertaining to road

maintenance. The superior court issued an order on the same day,

January 15, 2004, in the consolidated cases Bourne brought

against the town, and granted the town’s motion for preliminary

injunctive relief, enjoining Bourne from “making any improvements

in the Solomon Harmon Road except in accordance with the

provisions as provided in the letter (dated 11/19/03) . . . .” 

Bedrock Realty Trust, 03-E-120 (January 15, 2004). The record

shows that road improvements, including cutting trees, was

necessary for electrical service installation.

As presented by Bourne in support of his motion for summary

judgment, the record leaves factual issues as to whether the

town’s actions or the Cyrs’ actions caused the delay in

installing electrical service. Therefore, the record Bourne

provides does not support summary judgment in his favor.

26

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 26 of 32
IV. Defendants’ Motion for Summary Judgment

As in their opposition to Bourne’s motion for summary

judgment, the defendants argue that Bourne cannot show that their

interference with his road maintenance and improvement efforts

was improper and that he cannot prove that the defendants caused

his damages with respect to the delay in installing electrical

service.9 In response, Bourne again accuses the defendants of

false representations, harassment, forgery, frivolous litigation,

fraud on the court, and “outrageous abuse.” Bourne challenges

the superior court’s decisions related to maintenance of Solomon

Harmon Road. He also contends that the Cyr litigation did not

delay the electrical service installation.

A. Road Maintenance Work

The defendants show that their actions in preventing Bourne

from doing certain work on the right-of-way, then known as

Solomon Harmon Road, were reasonable, based on their belief that

it was a Class VI highway and on the superior court’s orders. 

Bourne’s disagreement with the superior court’s orders does not

undermine their import. The state courts’ later decisions which

9To the extent the defendants argue that Bourne’s claim for

damages due to improper interference with contract is barred by

Bourne’s failure to obtain an injunction bond, that argument is

not sufficiently developed to permit consideration.

27

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 27 of 32
establish that the right-of-way is not a Class VI highway and is

not a town road do not affect the context in which the accused

interference occurred, when the town believed it had authority to

control the right-of-way as Solomon Harmon Road. 

Both the superior court and the New Hampshire Supreme Court

held, in the context of denying Bourne an award of attorneys’

fees, that the town did not act unreasonably in defending its

position as to the status of Solomon Harmon Road. Federal courts

give full faith and credit to state court judgments and “give

them the same preclusive effect as would a court of that state.” 

Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 481 (1st

Cir. 2009) (citing 28 U.S.C. § 1738). Under New Hampshire law, a

party to prior litigation is barred “from relitigating any issue

of fact actually litigated and determined in the prior action.” 

In re Zachary G., 159 N.H. 146, 151 (2009) (internal quotation

marks omitted). For collateral estoppel to apply, three

conditions must be met: “(1) the issue subject to estoppel must

be identical in each action; (2) the first action must have

resolved the issue finally on the merits; and (3) the party to be

estopped must have appeared as a party in the first action, . . .

.” Stewart v. Bader, 154 N.H. 75, 80-81 (2006).

Although the claim for an award of fees in the state case is

different from the claim here that the defendants improperly

28

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 28 of 32
interfered with Bourne’s efforts to maintain the roadway, the

underlying factual issue is the same: whether the town acted

reasonably in asserting authority and control over Solomon Harmon

Road. The New Hampshire Supreme Court resolved the issue on the

merits, and Bourne was a party in the state court cases. Under §

1738, this court must give full faith and credit to the state

court decisions, despite Bourne’s charges that the state court

erred and was defrauded. Therefore, Bourne is estopped from

asserting that the town acted unreasonably in maintaining its

position that the right-of-way, known then as Solomon Harmon

Road, was a Class VI highway subject to the town’s authority and

control during the period between 2003 and 2006.

As is amply shown by the record of events between 2002 and

2006, the town did not improperly interfere with Bourne’s

contractual relations with third parties to maintain or improve

the right-of-way.

B. Electrical Service Installation

The defendants assert that the delay in installing

electrical service to Bourne’s property was caused by the Cyr

litigation that blocked improvement of the right-of-way which was

a necessary predicate before the poles and wires for electrical

service could be installed. Once the Cyr litigation was

29

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 29 of 32
resolved, the defendants point out, the town approved the

proposal for electrical installation. Bourne argues that the

defendants, not the Cyr litigation, blocked electrical service

installation from September 15, 2003, to April 25, 2006, when

approval was granted.

The record establishes that during the time in question the

town and the individual defendants believed that the disputed

right-of-way was a town road known as Solomon Harmon Road. 

During the same time, Bourne and the Cyrs disputed the right to

use and control the right-of-way. Bourne’s litigation with the

Cyrs involved injunctions that prevented improvements to the

right-of-way, such as cutting trees, that were necessary before

electrical power installation could begin. For example, in

November of 2003, the court ordered that Bourne could improve the

right-of-way but only to the extent allowed by the town, which

was presented in a letter from town counsel. Bourne was later

found to be in contempt of that order. Taken in the broader

context of Bourne’s dispute with the Cyrs and the state court

orders generated in the course of that litigation, the defendants

have shown that their actions with respect to interfering with

the installation of electrical power to Bourne’s property were

not improper.

Bourne attributes bad faith and improper motives to the

30

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 30 of 32
defendants, based on his interpretation of various occurrences,

communications, and interactions. Seen from Bourne’s vantage

point, the opposition Bourne encountered from the town and

several of its residents understandably might lead him to

conclude that they wanted to exclude him, as an outsider, and

wanted to preserve control over Solomon Harmon Road at any cost. 

Bourne felt victimized by the treatment he encountered and sought

retribution. The town’s handling of the situation at times

appeared to be inept and ill-advised. As is evident from the

traverse of this case, which has been discussed in some detail,

common sense and reason were relegated to the sidelines while the

disputes between the parties escalated into years of costly

litigation, which is continuing in state court. 

However, inhospitable actions and ineptitude as shown in

this case do not prove a claim of improper interference with

contract. “To defeat a motion for summary judgment, evidence

offered by the non-movant must be significantly probative of

specific facts.” Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.

2008) (internal quotation marks omitted). Bourne’s evidence in

support of his version of events does not provide sufficient

proof to show a genuine factual dispute, which is necessary to

avoid summary judgment. Instead, the record supports the

defendants’ position that their actions did not cause the delay

31

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 31 of 32
in electrical service installation. Therefore, the defendants

are entitled to summary judgment on Bourne’s claim of intentional

interference with contract.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

summary judgment (document no. 148) is denied. The defendants’

motion for summary judgment (document no. 187) is granted.

The clerk of court shall enter judgment in accord with the

order issued on June 29, 2007, (docket no. 104) and this order

and close the case.

SO ORDERED.

/s/ Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

United States District Judge

May 12, 2010

cc: Samuel J. Bourne, pro se

Brian J. S. Cullen, Esq.

Richard D. Sager, Esq.

32

Case 1:05-cv-00365-JD Document 206 Filed 05/12/10 Page 32 of 32