The Legal Perspective
by John Goodlander
Attorney at Law in the State of New Hampshire
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There is ample evidence that the use of safety bolts by rock climbers is both allowable under the Merriam Woods deed and in keeping with wishes of the Merriam family when they granted the land to the Town of Woodstock in 1980.
The WCC and town counsel are mistaken in their reading of the Merriam deed on the point of bolts, if they say otherwise. Here is an outline of the ways in which climbers have been, and should continue to be, permitted to use safety bolts in accordance with the Merriam deed and NH law.
I. Bolts are not “structures” under the term of the Merriam deed.
Under NH law, when a contract or statute names a general category (such as “vehicles”) and follows that general category up with a list of specific examples (such as “trucks, motor cars, snowmobiles, motorcycles, dirtbikes, airplanes, or helicopters”) the items prohibited or allowed by the general category are limited to those of a character consistent with the specific examples provided. So in this example, a prohibition on “vehicles” on a property wouldn’t prohibit use of skateboards or bicycles, as the specific examples are all of motorized vehicles. This principle of contract and statutory interpretation - called “esjudem generis” - is well settled in NH law. The point of this principle of law is to prevent unreasonably broad interpretations of contract terms.
Bolts are clearly not the type of “structure” the Merriam family intended to prohibit.
Article II.A of the Merriam Woods Deed, 1980
In the case of the Merriam deed, above, the general prohibition on the “construction or introduction” or any “structure” is followed by specific examples of “road, dam, fence, bridge, culvert, or shed”. These specifics limit and work to define what the Merriam family meant by “structure”. Clearly a climbing bolt is unlike any of these examples in terms of size, visual and environmental impact, and potential uses (recreational as opposed to industrial or commercial). Any reading of “structure” to include bolts clearly violates the principle of ejusdem generis outlined above.
II. Bolted climbing was a pre-existing recreational use of the property.
Article I. B&C of the Merriam Woods Deed, 1980
Section I,C of the Merriam deed requires that the property be open for “recreation”. Does the term “recreation” as used in the Merriam deed include climbing? What about bolt protected climbing? The answer to both of those questions is a clear “yes” for two reasons:
First, there is evidence that climbing (and the placing of protection bolts and pitons) was a long-standing use of the property at the time the Merriam family granted it. Climbing as a pre-existing use at the time the property was granted creates a presumption that the Merriam family intended for that practice to continue under the deed. If they didn’t want climbing (and bolting) to continue, they would have specifically carved that out from the term “recreation.” But they did not. Additionally, the WCC hasn’t presented any evidence that the Merriam family ever took steps to stop climbing or bolting while they owned the property. This also supports the presumption that the Merriam family approved of climbing and bolting on the cliffs as a legitimate form of “recreation”.
Second, NH law RSA 212:34 is clear that “recreation” includes bolt protected rock climbing. It is true that there is a distinction between trad and sport climbing (removable protection vs permanent bolts, respectively, as necessitated by the type of rock). BUT, is there a distinction between those types of climbing in the law? No, there is not. As far as the Merriam deed and NH law are concerned, there is no distinction between “trad” and “sport” climbing. First of all, the deed doesn’t make that distinction. And, as discussed above, climbing and bolting were pre-existing uses of the property at the time it was granted.
NH law does not distinguish between traditional climbing protection (which involves the use hammered pitons and removable tapers and expandable “cam” units) and sport climbing (which uses fixed bolts for protection).
RSA 212:34 defines the term “outdoor recreational activity” to include “…hiking, ice and rock climbing or bouldering…”
The law does not distinguish between bolted climbing and gear protected climbing. The legislature did go out of its way to distinguish between ice climbing and rock climbing and bouldering. So clearly the legislature knew how to distinguish between different types of climbing but chose not to carve out bolt protected rock climbing versus gear protected rock climbing.
III. A ban on bolts or chopping of existing bolts would operate as a de facto ban on climbing, which is protected under the deed.
The mudstone and soft schist at Merriam Woods does not support traditionally protected climbing with removable protection. The rock is too soft and/or fragile, and removable climbing protection risks damaging the rock and is unlikely to support the climber’s weight in the event of a fall. So, as a functional matter, bolts are necessary for rock climbing here. By chopping bolts, the WCC is effectively banning climbing as a form of recreation on the property, given the nature of the rock and lack of reasonable top rope access to almost all the cliffs. Especially given the historical practice of bolting on the property prior to it being granted, and the Merriam family’s tacit approval of the practice, banning and or chopping bolts is, in itself, a violation of the deed and likely counter to the intent of the Merriam family.
As far as the deed is concerned, all “recreation” is on equal footing. A ban on bolt-protected climbing is effectively the same as a ban on hiking or birdwatching. Why? Because the deed and NH law don’t make those distinctions, and the Merriam family chose not to make those distinctions in the deed. Any attempt by the WCC to prohibit “recreation” on the property carries the same risk of violating Section I,C, whether that ban is on bird watching or bolt protected climbing.
