Perley Court suit

The city can misplace its property, but can it lose it? That is the question at the center of lawsuit filed against Laconia and Laconia Millworks by Warren Cook, claiming ownership of a city street and adjacent land by "adverse possession."

Cook lives at 92 Water Street — next door to the former Allen-Rogers factory, which is being redeveloped by Laconia Millworks, LLC of Durham. Perley Court, together with an adjoining strip of land ten feet wide, lies between the two properties, running a brief distance from Water Street to the Winnipesaukee River. In his suit filed in Belknap County Superior Court, Cook claims title to both pieces of land.

According to the suit, records indicate that Stephen Perley deeded what became Perley Court to the Town of Meredith on December 7, 1825. That same day the Meredith selectmen laid out a street, which they dubbed Perley Court. Although Perley Court was transferred to the City of Laconia, it has never been used or maintained as a city street. Above all, Cook alleges, until a year ago the city seemed unaware that it owned the property.

In 1923, Perley Court appeared on a city tax map as an "empty lot." Meanwhile, the owners of 92 Water Street, including most recently Cook, mowed and maintained Perley Court, which they used to park vehicles. A city tax map of 1991 designated Perley Court as a railroad right-of-way owned by the state. But, the state subsequently disclaimed ownership of the property.

In 1995, a year after he moved the property owned by his parents, Cook asked if he could fence off the land, where he parked his vehicles. He claims that the Department of Public Works (DPW) indicated that land was "unclaimed property" and "an unowned right-of -way." The DPW agreed to the erection of the fence so long as Cook granted the DPW access to service a drain running through the property.

Nor was Perley Court depicted on the deed when Laconia Millworks, LLC took title to the Allen-Rogers property. Allen-Rogers acquired the land from the Zageski family in 1974 and immediately erected a chain-link fence approximately ten feet east of the easternmost boundary of Perley Court. Consequently, Cook, like the previous owners of his property, has used Perley Court and the ten foot strip abutting the fence raised by Allen-Rogers.

Not until 2003, when Chinburg Builders — the parent company of Laconia Millworks, LLC — began surveying the Allen-Rogers site was it discovered that the city held the original 1825 deed to the land.

In asserting Cook's claim to adverse possession, attorney Elaine Baillargeon of Gilford acknowledges in her brief that "case law and statutory law hold that the public's right to a highway or street cannot be lost," but continues "there are times, however, when the facts are so unique and overwhelming that equity would find differently."

In moving to dismiss the suit, Laura Spector of Mitchell & Bates, who represents the city, refers to two state laws. The first, RSA 236:30, reads that "no person shall acquire, as against the public, any right to any part of a highway by enclosing or occupying it for any length of time" while the second, RSA 477:34, reads that "no person shall acquire by prescription a right to any part of a town house, schoolhouse, or church lot, or of any public ground by fencing or otherwise inclosing the same or in any way occupying it adversely for any length of time." Spector declares that "these statutes could not be clearer."