Pic-N-Pay, Inc. v. State

259 A.2d 659, 110 N.H. 16, 1969 N.H. LEXIS 112

• Court: Supreme Court of New Hampshire
• Decided: November 28, 1969
• Docket: No. 5920
• Status: Published

Opinion

Per curiam.

Appeal under RSA ch. 541 from orders of the New Hampshire Port Authority (RSA ch. 271-A) made under the provisions of RSA ch. 483-A entitled “Tidal Waters.”

Plaintiff Pic-N-Pay owns a parcel of land on the westerly side of Lafayette Road (U. S. #1) in the general area opposite the Lafayette Plaza Shopping Center containing about 4 acres. It is about 5 feet below the level of the highway and is a “marshy area” “susceptible to tides” having no value in its present state but, if filled, will become valuable commercial property. The Fish and Game Department opposed this petition because “this area is salt marsh and as such is a necessary and vital part of our marine ecological complex.” A marine biologist testified that in 1954 there were a few clams in this area but they have disappeared and no others have taken their place. “Whether any worthy sea life can exist on a narrow creek above a municipal dump is quite dubious.” The Authority, in denying plaintiff’s petition, made the same statement, that it made in denying the Sibson petition (Sibson v. State, 110 N. H. 8), relative to the Authority being bound by the restrictive powers of the Director of the New Hampshire Fish and Game Department. A motion for rehearing was denied.

This case is governed by the law of Sibson v. State, supra. We concur in the position taken by the parties that plaintiff’s land does not come within the provisions of RSA ch. 483-A as construed in the Sibson case. Consequently the orders made by the Port Authority relating to the land of plaintiff, Pic-N-Pay, are null and void for lack of jurisdiction.

Appeal sustained.

Grimes, J., concurred in the result.