Summary
permitting the public to use a private right of way acquired by the town to reach the town's dump
Summary of this case from U.S. v. AcklesonOpinion
No. 4123.
Decided July 1, 1952.
The use granted the plaintiff of a right of way over the defendant's land for "all necessary purposes of entrance and egress" included the reasonable use of such way for all purposes to which the dominant tenement could be devoted. A general exception to a decree presents only the question of whether there are errors of law apparent upon the face of the findings and rulings made.
BILL IN EQUITY, seeking an injunction to restrain the defendants, who own land in Sandown adjoining that of the plaintiff, from interfering with and interrupting the use of a right of way for access to land of the plaintiff. The bill alleges the grant of a right of way by deed, and also alleges continuous and undisturbed use of the way by the plaintiff "and its predecessors in title" for nearly one hundred years. The defendants by their answer seek a decree that the plaintiff has no right over their land.
The defendants took title in 1947 by deed reserving "a right of way over the private way extending from a point near the southwesterly corner of the conveyed premises to other land of this grantor . . . on the northerly side thereof." In the following year the widow of the defendants' grantor conveyed the adjoining tract to the plaintiff's grantors, who in 1950 in turn conveyed to the plaintiff a portion thereof, together with "such rights of way the grantors may have for all necessary purposes of entrance and egress to said property over the said private way as now used." There was evidence that the way had been used for many years for access to the land now owned by the plaintiff.
Trial by the Court (Wheeler, J.) who entered a decree for the plaintiff, restraining the defendants from interfering with or interrupting the use of the way. The Court made the following findings and rulings:
"It is the position of the defendants that the use of the way by the general public who have occasion to use the dump constitutes a nuisance seriously endangering the health and welfare of said defendants.
"It is the position of the plaintiff that the way is a public highway established by adverse use and, if not a public highway, the. town has the right to reasonable use thereof in connection with its land.
"The dump has not been used to any great extent as yet and the Court finds its present use is not unreasonable.
"This way has been used without interruption for well over twenty years by any members of the general public who care to enter thereon . . .
"The Court rules, that the easement here granted cannot be enlarged into a public way by general use, but further rules that the easement granted was in general and unrestricted terms without limitations and may be used for all purposes to which dominant [tenement] could be devoted."
The defendants excepted generally to the findings and decree, and took certain other exceptions in the course of the trial, which have not been argued. Their bill of exceptions was allowed by the Presiding Justice.
Grinnell Grinnell (George H. Grinnell orally), for the plaintiff.
John W. Perkins and Everett P. Holland (Mr. Perkins orally), for the defendants.
The defendants' general exception presents no question of the sufficiency of the evidence to sustain the findings and decree; the issue to be determined by this court is whether there are errors of law apparent upon the face of the findings and rulings made. Eastman v. Waisman, 94 N.H. 253, 254.
While the Trial Court found that the way in question had been used continuously for more than twenty years, there was no ruling it was a public highway, nor did the relief sought by the plaintiff's bill call for such a ruling. Moreover it may be doubted whether the evidence would warrant such a ruling. Wason v. Nashua, 85 N.H. 192.
It is plain that the plaintiff acquired a right of way by grant the use of which might extend to "all necessary purposes of entrance and egress." Under these circumstances, the rights of the parties are to be determined "by reference to the rule of reason." Sakansky v. Wein, 86 N.H. 337, 339. See True v. McAlpine, 81 N.H. 314. The Trial Court found that the use made of the plaintiff's land prior to trial was not unreasonable, and ruled that while the easement might not be converted into a public way by general use, it could be used "for all purposes to which dominant [tenement] could be devoted." The requirement of reasonable use is implied in this definition of the plaintiff's right (Abbott v. Butler, 59 N.H. 317), and the decree for the plaintiff implied a ruling that the use disclosed by the evidence was reasonable.
The exceptions present no error of law.
Exceptions overruled.
All concurred.