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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Belknap No. 2006-782 TERRY L. HERSH & a. v. JOSEPH W. PLONSKI & a. Argued: October 17, 2007 Opinion Issued: December 7, 2007 Rath, Young and Pignatelli, P.C., of Concord (Andrew W. Serell on the brief and orally), and Conklin & Reynolds, P.A., of Plymouth (Deborah R. Reynolds on the brief), for the petitioners. Sheehan Phinney Bass + Green, P.A., of Manchester (Robert H. Miller on the brief and orally), for the respondents. DALIANIS, J. The respondents, Joseph W. Plonski and Lori Ann RolanPlonski, appeal the order of the Superior Court (Smukler, J.) denying their cross-petition to quiet title and granting the petition to quiet title filed by the petitioners, Terry L. Hersh, Barry R. Hersh, Gerard Gagne and Susan Gagne. We affirm. I. Background

The record supports the following: The parties own abutting properties in Sanbornton. The Hersh and Gagne properties are next to one another on Broadview Drive; the Plonski property is behind them. The Plonski property

borders Chapman Brook on one side and Lake Winnisquam on the other. See infra App. A (map of Plonski property). The Plonskis access their property by way of a right of way, which is one rod (sixteen and one-half feet) wide, that begins on Broadview Drive and crosses the Gagne property. All three properties were originally part of one tract. In 1898, the Plonski property was carved out of the tract and the right of way was created. See id. The Plonskis purchased the property in 2003. In 1928, the Hersh and Gagne properties were separated pursuant to a subdivision plan. This subdivision plan showed a proposed thirty-foot-wide road between the Hersh and Gagne properties, which began at what is now Broadview Drive and ended at what is now the Plonski property. See infra App. B (1928 subdivision plan). This so-called "paper street" has never been constructed. The first half of its length is currently overgrown with trees and vegetation. The Plonskis' one-rod right of way and the thirty-foot-wide paper street overlap, however, for part of their lengths. See infra App. C. (Goodwin subdivision plan), App. D (Hersh subdivision plan). The Hersh property was part of Lot 11 of the 1928 subdivision plan and was conveyed by the original fee holder to William E. and Almenia D. Harper in 1940. See infra App. B. The Hershes bought the property from Almenia Harper in 1986. In 1996, the Hershes filed a plan to subdivide their lot. See infra App. D. In 1998, they filed a boundary line adjustment plan and then sold one of their subdivided lots pursuant to that plan. See infra App. E (Hersh boundary line adjustment plan). The Gagne property was part of Lot 12 and was conveyed by the original fee holder to Georgia E. Amidon in 1942. See infra App. B. In 1946, Amidon conveyed it to Maurice and Jeanne Hueber, who, in 1951, conveyed it to Ernest and Doris Lavallee. In 1952, the Lavallees conveyed the property to Wendell C. and Priscilla L. Williams, who, in 1970, conveyed it to Stephen L. and Roberta A. Goodwin. In 1987, the Goodwins submitted a plan to subdivide their property into two lots. See infra App. C. In 1997, they conveyed Lot 1 of their subdivided property to Laurence S. and Diane P. Dibiaso. In 2005, the Goodwins conveyed Lot 2 of their subdivided property to the Gagnes. In this case, the parties sought to quiet title to the paper street depicted in the 1928 subdivision plan. The Hershes and Gagnes asserted that because the Town never accepted the paper street, it never attained the status of a public highway and, therefore, belonged to the Hershes. In their cross-petition, the Plonskis contended that the paper street became a public highway either because the Town impliedly accepted it through public use or because the predecessors-in-title to the Gagne and Hersh properties rededicated it. Following a two-day bench trial, supplemented by a view, the trial court ruled in favor of the Hershes and Gagnes. This appeal followed. 2

II.

Analysis A. Standard of Review

In an action to quiet title, the burden "is on each party to prove good title as against all other parties whose rights may be affected by the court's decree." Sorenson v. Wilson, 124 N.H. 751, 758 (1984). A trial court may not render judgment quieting title to disputed property "in the absence of parties with a duly recorded interest in the property, unless those parties claimed no interest and the petition so alleged." Id. We will uphold the trial court's determination unless it is erroneous as a matter of law or unsupported by the evidence. Riverwood Commercial Prop's v. Cole, 134 N.H. 487, 490 (1991). In their cross-petition to quiet title, the Plonskis claimed no private rights to the paper street, but rather contended that they, as members of the public, had rights to it as a public highway. The party asserting that a public road was established has the burden of demonstrating this by a balance of the probabilities. See Gill v. Gerrato, 154 N.H. 36, 43 (2006). We are bound by the trial court's findings with respect to the public status of the road unless they are not supported by the evidence or are erroneous as a matter of law. Id.; see Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 36 (2007) (whether a public highway has been created is a question of fact). B. Dedication and Acceptance in General

A public highway may be created: (1) through the taking of land by eminent domain and the laying out of a highway by some governmental authority; (2) through the construction of a road on public land; (3) through twenty years of use by the public before 1968; or (4) by dedication and acceptance. Polizzo v. Town of Hampton, 126 N.H. 398, 401 (1985); see RSA 229:1 (1993). At issue in this appeal is whether the paper street became a public highway by dedication and acceptance. Dedication is "the devotion of land to a public use by an unequivocal act of the owner of the fee manifesting an intention that it shall be accepted and used presently or in the future for such public use." Siegel, The Public Role in Establishing Private Residential Communities: Towards a New Formulation of Local Government Land Use Policies That Eliminates The Legal Requirements to Privatize New Communities in the United States, 38 Urb. Law. 859, 916 (Fall 2006) (quotation omitted); 11A E. McQuillin, The Law of Municipal Corporations

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