Muddy Paw Land Holding has filed a civil suit against the state Department of Natural and Culture, seeking continued access to the Presidential Rail Trail for its sled dog teams and other uses. (COURTESY PHOTO)
LANCASTER— In a dispute over a gravel road crossing over the Presidential Rail Trail in Jefferson, Coos County Superior Court Justice Peter Bornstein has rejected a request for an injunction to stop the state from blocking the crossing.
In his ruling issued Tuesday, Bornstein denied Muddy Paw Holding Company’s motion for a preliminary injunction against the N.H. Department of Natural and Cultural Resources. The judge said the plaintiff had not demonstrated “a reasonable likeliness of success on the merits of its expressed easement claims and its implied easement claims.”
Muddy Paw sought an injunction to stop the state from blocking access to the crossing the company has been using to get to land it owns in Jefferson. Without the crossing, Muddy Paw said it cannot access part of its land without “disproportionate effort or expense.”
The company said it purchased five parcels of land in Jefferson in 2013 including one parcel and part of a second that it describes as landlocked. One of the two is intersected by the rail trail. Muddy Paw said the land purchase included an easement granted in 1930 by Boston and Maine Railroad, the previous owner of the rail line. The easement gave the buyer the “right to pass on foot and with cattle” in the river bed near the crossing.
Headquartered in Gorham, Muddy Paw operates year-around recreational sled dog tours out of its Jefferson property.
When it purchased the property, Muddy Paw said it received a temporary special use permit to cross the rail trail and placed the crossing at the location suggested by N.H Bureau of Trail. The company said it was under the impression that a permanent access would be negotiated with the Division of Natural and Cultural Resources. Muddy Paw said it uses the two parcels as pasture for its cows, to store equipment, and as a safe turnaround point for its sled dog teams.
At some point in 2001-22, Muddy Paws said it was notified that the temporary permit had expired and had to be addressed but was told in the meantime Muddy Paw could continue to use it. The parties negotiated an agreement that would have Muddy Paw grant the state an easement on 49,500 acres on its property for a snowmobile trail in exchange for a 5,000 square foot easement for the crossing. But Muddy Paw said it decided the disparity in square footage was too great and instead offered several alternatives for a snowmobile trail on its property where the disparity in size was smaller. It also offered to purchase the easement for the crossing.
On March 31, 2023, Muddy Paw said it received a letter from the Bureau of Trails reporting that it was no longer interested in an easement trade. On July 3, the state physically blocked off the crossing with two rows of concrete blocks. The company requested both a preliminary and permanent injunction as well as a declaratory judgement to allow relocation of the existing easement. Muddy Paw said state statute allows modification of an easement is appropriate when changed conditions make it impossible to achieve the purpose for which it was created
Muddy Paw argued blocking the crossing will “have a devastating impact on Muddy Paw’s business operations” especially its scheduled sled dog tours by taking away the only safe location for the teams to turn around. It pleaded for the state to at least allow the sled dogs teams to use the crossing even if it banned vehicular traffic.
In its response, the state said Muddy Paw has access to its land from the Jefferson Notch Road or by constructing a bridge and “ only argue the crossing would be more convenient for their commercial purposes.”
It said the company was told prior to purchasing the land that such crossings were rarely granted and said an exchange of easements “would be required to justify the additional safety risks to public use of the trail, environmental damage, and further erosion of the trail that would arise from allowing crossing traffic to the public trail.” It noted the Presidential Rail Trail, which runs 18 miles from Gorham to Pondicherry in Jefferson, is used by hikers, cyclists, and snowmobilers.
The state questioned whether Muddy Paw is truly the successor of the 1930 easement, noting that easement was for agricultural purposes such as cattle grazing. It only allowed passage by foot and with cattle. Furthermore, the state said the temporary special use permit issued to Muddy Paw specifically excluded commercial use of the crossing. The state noted Muddy Paw is seeking to use the crossing for commercial traffic in the form of sled dogs, construction vehicles, and storage vehicles.
“To the extent the plaintiffs have alleged they have suffered harm, they never had a right for commercial crossing over the trail itself,” the state concluded.
Bornstein said the 1930 easement did not convey a general right of way but was limited to a pedestrian access with or without cattle. He pointed out it did not contain any reference to vehicular traffic. The judge said the it is still possible to accomplish the purpose for which the easement was created.
Bornstein also said “the facts disclosed do not show any circumstances which give the plaintiff a right of way by necessity across the DNCR’s land.
Oral arguments on the motion were heard on Aug. 10. Muddy Paw was represented by Attorneys Megan Carrier and Cassandra Rodgers of the Manchester law firm of Shaheen Phinney Bass & Green while the DNCR was represented by Assistant Attorney General Lawrence Gagnon.
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