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AG's report answers some questions about Mount Washington property ownership, raises others

Union Leader Correspondent

September 20. 2018 11:09PM
Along with the Auto Road, the Mount Washington Observatory, shown here in July, has been involved with the Cog Railway in a dispute about its rights atop the summit. A report released this week by the Mount Washington Commission addressed concerns raised by the parties. (John Koziol/Union Leader Correspondent)

MOUNT WASHINGTON — The Mount Washington Commission has released a 14-page Attorney General’s report that answers some questions while potentially raising new ones about who owns what atop the highest mountain in the Northeast.

Prepared by K. Allen Brooks, who is a senior assistant attorney general in the Environmental Protection Bureau and who also serves as counsel to the Commission, the report, made public on Tuesday, concludes that two entities own real property on the summit cone — the State of New Hampshire and the Cog Railway — and that they, along with the Mount Washington Auto Road, also have easement rights.

The issue of ownership and rights came to a head at the Commission’s April 13 meeting at which Wayne Presby, owner of the Cog, and Howie Wemyss, general manager of the Auto Road, presented alternative opinions about them.

Last fall, the Cog alleged that the Auto Road and the Mount Washington Observatory, which is a tenant of the state within the Sherman Adams Building at the summit, had violated the railway’s rights under an 1894 agreement.

That agreement, Presby said at the time, gives the Cog the exclusive right to lodge guests, something that the Observatory was violating by bringing visitors up for overnight educational excursions.

He said the Auto Road breached the 1894 agreement by entering into a “sweetheart” deal with the state for the use of three parking lots within the 60-acre Mount Washington State Park that puts the Cog at a competitive disadvantage and violates a provision of the agreement that precludes either party from actions that damage the other’s income.

Presby has also charged that both the Auto Road and the Observatory have trespassed onto the Cog’s right-of-way and that Auto Road vans, by parking in front of the Sherman Adams Building, have interfered with the safe loading and unloading of railway passengers.

In response to Presby, the Auto Road and Observatory said the allegations were without merit and that some rights Presby was claiming had been eliminated or changed in the 124 years since the 1894 agreement.

Attorneys for the Auto Road wrote that “Simply put, the Railway Company has no fee simple rights under the tracks within the Summit Circle, only easement rights, and has no property rights at all beyond the recent end of its tracks next to the Stage Office; and therefore cannot dictate what the Road Company, the State or the Observatory accomplish on state-owned land beyond the end of the tracks.”

In his report, Brooks cautioned that it was an opinion only, adding that the Attorney General “cannot arbitrate disputes or definitively determine ownership,” which, absent an agreement among the parties, can only be resolved in Superior Court.

On Thursday, Presby said he hoped everyone could avoid legal action and that the way for that to happen was for the state, Observatory and Auto Road to acknowledge the Cog’s rights.

He said he was heartened by Brooks’ report finding that the Cog has the right to operate within its right-of-way without unreasonable interference, and also that no one can adversely possess state land, which the Auto Road has been doing by where it parks its vans.

But Brooks said that the 1894 agreement did not restrict lodging at the Observatory, and that “the rights and obligations” in it that had been the railway’s, passed to the Mount Washington Summit House Inc. in a 1962 deed.

The Mount Washington Summit House transferred “all fee interests” to Dartmouth College, which subsequently transferred the entire summit circle to the state, with the exception of what had been an 80-foot by 200-foot parcel which was sold to Marshfield, Inc. and is now owned by the Cog.

As to Presby’s assertions that state laws prevent parking within 50 feet of a railroad “crossing” and prohibit “the entry onto any railroad property,” punishable by criminal trespass charges, Brooks wrote that they were both non-applicable.

In the first instance, there is no railroad crossing at the summit, he said, while in the second the law limits the prohibition “to those who are not licensed or otherwise privileged to enter … It, therefore, would not apply at the summit to the State as fee owner or its invitees.”

Regardless of the report, Presby was certain that “the rights of the railroad are more extensive than the Attorney General has indicated” and that the Cog retains the rights that Brooks said the railway relinquished when the railway was sold to Dartmouth.

Should the state, Auto Road and Observatory not recognize those rights and also that they are violating them, then a lawsuit might be necessary, said Presby, “but I don’t see any reason why it has to go to that.”

Despite the controversy, Presby said the Cog is having another strong year of ridership, even though tourism is down in general and the railway also raised ticket prices.

In 2019, the Cog will celebrate its 150th anniversary and Presby had hoped to build a luxury hotel, Skyline Lodge, in the railroad’s right-of-way, about 1,000 feet from the summit, in time for it.

When asked about the future of the proposed 35-room lodge, which has drawn intense criticism from environmental groups who worry it could damage the mountain’s fragile alpine zone, Presby replied, “I think that there are still options available to us that include that as an option but I think there are other options available to us that we continue to explore internally here.” Presby declined to say what the options were.

Wemyss was unavailable for comment.

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