Opinion
Decided May 7, 1929.
A deed conveying lots of land on each side of a highway and bounded thereby conveys the grantor's title in the highway subject only to the public easement. As between two persons claiming title to land and showing no title other than deeds from different grantors the grantee under the subsequent deed has title as against the grantee under the prior deed if he failed to record his deed until after the record of the later deed and the grantee thereunder acquired title in ignorance of the prior deed. In such case the grantee under the subsequent deed may maintain a bill in equity to remove the cloud upon his title caused by the record of the former deed. A court of equity having jurisdiction will administer all relief, including the award of damages, which the nature of the case demands.
BILL IN EQUITY, to remove a cloud from the title to real estate, and for an accounting for wood and timber taken from the premises. The case was sent to a master who found the facts and recommended a decree that the cloud be removed and that the plaintiffs recover the damages, which were agreed to be two hundred dollars. The questions of law arising upon the report were transferred without ruling by Sawyer, C. J.
The facts are stated in the opinion.
Stanton Owen and Fred S. Wright, for the plaintiffs.
Jewett Jewett, for the defendant.
This proceeding is brought to remove a cloud from the title to a strip of land now or formerly a part of a highway in the town of Canaan, and for an assessment of damages for trespass thereon. The locus lies between two lots owned by the plaintiffs. The defendant claimed through a deed of it, prior in date to the plaintiffs' deed, but not recorded until after the plaintiffs took and recorded their deed, in ignorance of the defendant's claim.
In his argument here, the defendant has not relied upon any claim of title by deed, but defends solely upon the proposition that the plaintiffs have not shown title. At the trial before a master, there was controversy as to whether the highway, laid out in 1795, was legally discontinued in 1861. Upon this issue the master found in favor of the plaintiffs. But he also ruled "that the defendant's liability is unaffected by the existence or non-existence of a highway of which the `locus' now or once formed a part." If this ruling is sound, there is no occasion to consider the questions raised upon the issue of discontinuance.
It is elementary that deeds of the lots on the two sides of the road, and bounded thereby, would convey the grantor's title in the highway. Goodeno v. Hutchinson, 54 N.H. 159, and cases cited; Woodman v. Spencer, 54 N.H. 507; Manchester v. Hodge, 74 N.H. 468. Title to this strip of land, subject only to the public easement, if one existed, was established.
This title was a valuable right, susceptible of vindication as against intruders. As to everything except the public right of passage and the incidents thereto, the land was the property of the plaintiffs. Lyford v. Laconia, 75 N.H. 220. They have a right to recover for the defendants' trespass thereon and to be paid the value of the trees he cut and carried away. Bigelow v. Whitcomb, 72 N.H. 473, and cases cited.
It is not perceived why the defendant's earlier deed, put on record after the plaintiffs had acquired title, is not a cloud upon that title which the plaintiffs are entitled to have removed. Woodbury v. Swan, 58 N.H. 380. No question has been raised as to the propriety of the procedure adopted to settle this controversy. The defendant answered to the merits and tried out the facts; and no objection to jurisdiction has been offered, except to the assessment of the damages caused by the defendant's trespass. "It is the practice of courts of equity, having jurisdiction, to administer all relief which the nature of the case and facts demand." Manchester Amusement Company v. Conn, 80 N.H. 455, 461. Earlier and later cases are to the same effect. Gale v. Sulloway, 62 N.H. 57; French v. Westgate, 70 N.H. 229; Manchester Dairy System v. Hayward, 82 N.H. 193.
The master's conclusion that the plaintiffs are entitled to a decree removing the cloud upon their title, caused by the defendant's deed and the record thereof, and for the agreed damages, was correct.
Decree for the plaintiffs.
All concurred.