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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough–southern judicial district

No. 2016-0305

SEGTEL, INC.

v.

CITY OF NASHUA

Argued: February 23, 2017

Opinion Issued: June 9, 2017

Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief 

and orally), for the plaintiff.

Office of Corporation Counsel, of Nashua (Celia K. Leonard on the brief 

and orally), for the defendant.

HICKS, J. The defendant, the City of Nashua (City), appeals an order of 

the Superior Court (Temple, J.) granting summary judgment to the plaintiff, 

segTEL, Inc., on the basis that the City lacked the authority to tax the 

plaintiff’s use of the City’s rights of way. See RSA 72:6, :23 (2012). We affirm.
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I. Factual Background 

The evidence submitted on summary judgment, viewed in a light most 

favorable to the City, see N. New England Tel. Operations v. City of Concord, 

166 N.H. 653, 655 (2014), supports the following facts. The City has issued 

licenses to certain utility providers — FairPoint Communications, Inc. and 

Public Service of New Hampshire (collectively, the utility providers) — that have 

placed poles and conduits over certain rights of way owned by the City. The 

utility providers pay property tax to the City pursuant to a 2005 ordinance, 

which amended the terms of existing pole licenses to add the following 

language: “In accordance with the requirements of RSA 72:23[,] I (b), the 

licensees(s) and any other entity nor [sic] or hereafter using or occupying 

municipal property pursuant to this license shall be responsible for the 

payment of, and shall pay, all properly assessed personal and real property 

taxes . . . .” (Quotations omitted.)

The plaintiff is a telecommunications company that owns and/or 

operates a fiber optic cable network throughout New Hampshire — including 

within the City. It does not own any poles or conduits within the City, and 

does not have its own license from the City authorizing its occupation of the 

City’s rights of way. Instead, pursuant to pole attachment agreements with the 

utility providers, the plaintiff remits a fee to the utility providers in exchange 

for the right to place its fiber optic cables on their poles and conduits.

 It is 

undisputed that these pole attachment agreements do not require the plaintiff

to pay property taxes assessed by the City.

Having become aware of the plaintiff’s use of the utility providers’ poles 

and conduits, the City in 2014 assessed the plaintiff property taxes of 

$1,507.94 for its use of the City’s rights of way. The plaintiff applied for an 

abatement, which the City denied. Thereafter, the plaintiff brought this action 

in superior court, seeking: (1) a declaratory judgment that the City is not 

entitled to impose the tax; and (2) to strike the City’s 2014 tax assessment. 

The trial court granted summary judgment to the plaintiff, ruling that 

“[b]ecause [the plaintiff] has not entered into an agreement in which it 

consented to be taxed,” the City could not lawfully tax the plaintiff for its use 

and occupation of the City’s rights of way. This appeal followed.

II. Analysis

“When reviewing a trial court’s grant of summary judgment, we consider 

the affidavits and other evidence, and all inferences properly drawn from them, 

in the light most favorable to the non-moving party.” N. New England Tel. 

Operations, 166 N.H. at 655 (quotation omitted). “If our review of the evidence 

does not reveal any genuine issue of material fact, and if the moving party is 

entitled to judgment as a matter of law, we will affirm the trial court’s decision.” 
3

Id. (quotation omitted). “We review the trial court’s application of the law to the 

facts de novo.” Id. (quotation omitted).

On appeal, the City argues that it has statutory authority pursuant to 

RSA 72:6 and RSA 72:23 to tax the use and occupancy of its rights of way. In 

opposition, the plaintiff argues that a statutory precondition for the assessment 

of taxes has not been met in the instant case.

Resolution of this issue requires that we engage in statutory 

interpretation. The interpretation of a statute is a question of law, which we 

review de novo. Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204 (2016). In 

matters of statutory interpretation, we are the final arbiters of the legislature’s 

intent as expressed in the words of the statute considered as a whole. Id. In 

construing its meaning, we first examine the language found in the statute, 

and when possible, we ascribe the plain and ordinary meanings to the words 

used. Id. We interpret legislative intent from the statute as written and will 

not consider what the legislature might have said or add language that the 

legislature did not see fit to include. Id. We interpret statutory provisions in 

the context of the overall statutory scheme. Id. Absent an ambiguity, we will 

not look beyond the language of the statute to discern legislative intent. Id.

“The assessment and collection of taxes must be based on legislative 

authority.” Signal Aviation Servs. v. City of Lebanon, 169 N.H. 162, 169 (2016)

(quotation omitted). RSA 72:6 provides that “[a]ll real estate, whether improved 

or unimproved, shall be taxed except as otherwise provided.” RSA 72:6. RSA 

72:23, I(a) exempts from taxation:

Lands and the buildings and structures thereon and therein and 

the personal property owned by the state of New Hampshire or by a 

New Hampshire city, town, school district, or village district unless 

said real or personal property is used or occupied by other than 

the state or a city, town, school district, or village district under a 

lease or other agreement the terms of which provide for the 

payment of properly assessed real and personal property taxes by 

the party using or occupying said property. 

RSA 72:23, I(a). 

The parties agree that RSA 72:23, I, governs the present dispute. Indeed, 

we have recognized that a city’s rights of way fall within the purview of the 

statute.

 See Verizon New England v. City of Rochester, 151 N.H. 263, 268 

(2004) (agreeing with trial court’s determination that “[w]hatever interests the 

city . . . possesses in the rights of way, those interests are ‘owned’ for purposes 

of determining whether non-governmental entities that use or occupy those 

interests in the rights of way must pay properly assessed real estate taxes” 
4

(brackets omitted)). The parties, likewise, agree that the plaintiff “used or 

occupied” the City’s rights of way. Thus, our determination of the City’s taxing 

authority under RSA 72:6 turns upon whether the plaintiff used or occupied 

the City’s rights of way “under a lease or other agreement the terms of which 

provide for the payment of properly assessed real and personal property taxes 

by the party using or occupying said property,” RSA 72:23, I(a).

The City argues that “the requirement for an ‘agreement’ under RSA 

72:23, I[,] has been satisfied” by the pole licenses the City issued to the utility 

providers. (Emphasis omitted.) We disagree, and hold that, under the 

circumstances here, the City lacked the authority under RSA 72:6 and RSA 

72:23, I, to tax the plaintiff’s use of its rights of way.

By its plain language, RSA 72:23, I(a) provides that city-owned property 

is exempt from taxation unless: (1) that property is used or occupied by 

another “under a lease or other agreement”; and (2) “the terms of [that 

agreement] provide for” the payment of property taxes. RSA 72:23, I(a). We 

have previously recognized that pole licenses are “other agreement[s]” for the 

purposes of RSA 72:23, I(a), N.E. Tel. & Tel. Co. v. City of Rochester, 144 N.H. 

118, 121 (1999), and here the utility providers’ pole licenses provide for the 

payment of property taxes.

 However, the plaintiff does not use and/or occupy 

the City’s rights of way “under” the pole licenses. See Webster’s Third New 

International Dictionary 2487 (unabridged ed. 2002) (defining “under” in 

relevant part as “required by: in accordance with: bound by” (bolding omitted)). 

Because the plaintiff is not a party to the pole licenses, it is not subject to their

terms. See Fleet Bank-NH v. Christy’s Table, 141 N.H. 285, 290 (1996) 

(holding that defendants, who were not parties to contract in question, 

therefore could not be bound by its terms). It, therefore, is not subject to the 

terms of the pole licenses providing for the payment of taxes. This conclusion 

is consistent with our prior application of the statute. See Appeal of Reid, 143 

N.H. 246, 253 (1998) (holding that municipality could not assess tax against 

lessees of real properties where relevant leases did not provide for the payment 

of property taxes, and explaining that “the plain language of RSA 72:23, I, 

reveals that it contains . . . a tax provision that ensures that the lessees are 

aware of, and consent to, taxation of their leasehold”); HEA Realty v. City of 

Nashua, 136 N.H. 695, 697 (1993) (holding that the exception to RSA 72:23, I’s 

tax exemption does not require that the municipality assessing the tax be party 

to the agreement providing for the payment of taxes). 

The City attempts to distinguish Appeal of Reid. To the extent it does so

on the basis that Reid involved the taxation of leaseholds, as opposed to the 

taxation of property used or occupied pursuant to a license, we find this 

argument unpersuasive. Although Appeal of Reid involved the taxation of 

leaseholds, see Appeal of Reid, 143 N.H. at 247-48, for the purposes of RSA 

72:23, I, this is a distinction without a difference. The City has not identified
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any language in RSA 72:23, I, indicating that the statute applies differently to 

licenses from the way it does to leases. Indeed, the plain language of the 

statute excepts both leased property and licensed property from the tax 

exemption under the same circumstances. See RSA 72:23, I(a) (exempting 

property unless “lease or other agreement” provides for the payment of taxes). 

Further, to the extent that the City argues that Appeal of Reid is inapplicable 

because it considered whether a municipality was entitled to tax certain

leaseholds pursuant to RSA 73:10 (2012), we disagree. Although we addressed 

the municipality’s taxing authority under RSA 73:10 in Appeal of Reid, we also 

addressed separately its taxing authority in light of the exception to tax 

exemption contained in RSA 72:23, I. See Appeal of Reid, 143 N.H. at 250, 

253. Similarly, we need not address the City’s argument that the trial court 

erroneously relied upon RSA 73:10 because, even if it did, its decision is 

sustainable solely under our interpretation of RSA 72:23, I.

We construe the City’s brief as arguing, in the alternative, that the 

plaintiff impliedly consented to be subject to the terms of the utility providers’

pole licenses. The City claims that the plaintiff’s course of conduct 

demonstrates that “it was aware of and willing to accept the conditions 

imposed by the City and the legislature.” (Quotation and brackets omitted.) It 

asserts that the plaintiff’s consent to be subject to the terms of the pole 

licenses is evidenced by: (1) the plaintiff’s knowledge “that it must have a 

license from the City to occupy City right[s] of way”; (2) the plaintiff’s knowledge 

“of the conditions which are part of the . . . pole licenses” ; (3) the plaintiff’s 

“place[ment] [of] its [fiber optic cable] in City right[s] of way”; and (4) the City’s 

“allow[ance] . . . [of the plaintiff’s use of] its right[s] of way without issu[ance] 

[of] a new license to [the plaintiff].” We disagree. 

Even if we were to accept the City’s assertions, we cannot discern how 

such evidence supports a conclusion that the plaintiff consented to be subject 

to the terms of the utility providers’ pole licenses. Such a conclusion does not 

follow from the plaintiff’s unlicensed attachments. The plaintiff’s knowledge 

that the utility providers agreed to pay property taxes is insufficient evidence of 

its consent to be taxed. Likewise, the City’s silent acquiescence cannot be 

construed as implied consent by the plaintiff to be subject to the terms of 

licenses issued to third parties. Ultimately, as the plaintiff asserts in its brief, 

“[t]he fact that [the plaintiff] uses and occupies the City[’s] right[s] of way for 

profit does not, by itself, create consent to be taxed.” (Quotation and citation

omitted.) Whether the absence of either a separate license to the plaintiff from 

the City or an agreement by the plaintiff to be bound by the utility providers’ 

pole licenses would, as the City suggests, render the plaintiff a “trespass[er]” 

with “no right to be in the City right[s] of way,” is not an issue before us and 

does not affect our interpretation of RSA 72:23, I.
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For the foregoing reasons, we conclude that the trial court did not err in 

ruling that “[b]ecause [the plaintiff] has not entered into an agreement in which 

it consented to be taxed,” the City lacked the authority under RSA 72:6 and 

RSA 72:23, I, to tax the plaintiff’s use of the City’s rights of way.

Affirmed.

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.