Hoban v. Bucklin

• Decision Date: 07 April 1936
• Citation: 184 A. 362
• Parties: HOBAN v. BUCKLIN et al. BUCKLIN v. HOBAN et al.
• Court: New Hampshire Supreme Court

184 A. 362

HOBAN

v. BUCKLIN et al.^*

BUCKLIN

v. HOBAN et al.

Supreme Court of New Hampshire. Merrimack.

April 7, 1936.

Transferred from Superior Court, Merrimack County; Sawyer, Chief Justice.

Two bills in equity by Bernard A. Hoban against Walter S. Bucklin and others and by Walter S. Bucklin against Bernard A. Hoban and others. First bill transferred on question of law reserved without ruling, and second bill transferred on exceptions to court's rulings and findings.

Case discharged on first bill and second bill dismissed.

Bills in equity. The first one was brought to have determined the rights of Hoban, herein called the plaintiff, against Bucklin, herein called the defendant, on the shore frontage of Little Sunapee Lake in New London opposite the plaintiff's premises. The premises extend along the easterly side of a highway separating them from the frontage on its westerly side. On his premises the plaintiff conducts a boys' camp each summer season, closing it for the rest of the year. He maintains a wharf and boathouses which are built from the shore line out upon or over the bed of the lake between normal low and high-water marks. Also, he uses the land between the traveled part of the highway and the lake for passing to and from his structures and for conveniently exercising his rights in the lake as one of the public.

So far as there is land between the westerly line of the highway and the normal high-water mark of the lake, the defendant claims title to it by deed. The plaintiff claims that the highway abuts on the high-water mark, and that if this claim is not upheld, the intervening land is subject to his prescriptive right to its use as an appurtenance to his premises across the highway, and is also subject to the public right, likewise acquired by prescription, to its use as incidental to the public rights in the lake.

The Attorney General was originally joined as a defendant in the bill. It seeks a decree by which "the exercise of private and public rights" of the parties "be so adjusted that there may be no substantial infringement of either." The answer to the bill prays for an order directing the plaintiff to remove his structures and to discontinue his use of the land in controversy.

The court found that there is land between the lake and highway belonging to the defendant, that the public had made no adverse use of it, and that the only adverse use by the plaintiff was in the maintenance of his structures and of a pathway leading to them. As to this limited adverse use, it was found that the prescriptive period had not run unless the time of use by the plaintiff's predecessor in title is added. Whether this time should be added was reserved without ruling as a question of law.

The second bill seeks an injunction against Hoban from the use of an underpass beneath the highway at its ground level and connecting his premises with the land westerly of the highway claimed by Bucklin. An appeal from the layout of the underpass as a highway by the selectmen of New London is pending, and they are joined to this bill as parties defendant. The court found that the sole purpose of the layout was Hoban's private benefit and that the underpass could not be used without trespassing on Bucklin's land.

Numerous exceptions were taken to the court's rulings and findings. So far as considered, they appear in the opinion, together with additional facts. Transferred by Sawyer, C. J.

Jesse M. Barton, of Newport, and Robert W. Upton and Laurence I. Duncan, both of Concord, for Hoban and the selectmen of New London.

Murchie, Murchie & Blandin and Alexander Murchie, all of Concord, for Bucklin.

ALLEN, Chief Justice.

I. The first bill is considered as though the Attorney General, representing the public interest, were not a party. He has not appeared in the litigation, and its course and conduct indicate that no adjudication of public rights is sought except as they affect the merits of the litigation as between the plaintiff and the defendant. The litigation is thus between private parties. No rights of the state or public are at stake. While in that sense it was correctly ruled that no public right might be litigated, yet the claim of the plaintiff, as one of the public, to the benefit of the public rights calls for their determination. He alleges the defendant's interference with the assertion and exercise of his rights of a public nature. The defendant disputes his claim of such rights. They are therefore a subject of the litigation. The plaintiff's public rights are not to be decided as between him and the public, but they are as between him and the defendant. Whitcher v. State, 87 N.H. ——, 181 A. 549.

The plaintiff owns none of the shore frontage. The defendant's claim of unencumbered title to it is attacked. The issue of private ownership of land separating the highway and the bed of the lake necessarily affects the public right. Furthermore, if the defendant's claim of title is sustained, the plaintiff alleges a public easement in it acquired by prescription as well as a private easement also acquired by prescription and appurtenant to his premises. The defendant, denying the public right, denies interference with it. Thus again there is litigation between the parties respecting the public right. And involved in the issue of the defendant's ownership of the shore frontage is the location of the highway, another matter of public right. Whether as against the public the plaintiff may maintain his structures is an inquiry outside the case. But on the issue whether he may as against the defendant, his rights as one of the public are of material bearing. They are in dispute and may be litigated.

II. The plaintiff offered evidence of the statements of the predecessor in title of the defendant made in connection with the deed he gave in conveying the title. The statements were of denial of ownership in part of the premises the deed described and had reference to the shore frontage in controversy. They were competent, not to construe the deed, but as bearing on the grantor's ownership, his boundaries, and the location of the highway. Hening's Digest, 624-626. The collateral facts relate to the weight and credibility of the evidence and do not affect its competency.

In Fowler v. Owen, 68 N.H. 270, 39 A. 329, 73 Am.St.Rep. 588, an action of trespass, it was held that a plaintiff in possession of land has the owner's rights except against him or one claiming under him. This rule is well established. Hening's Digest, 1552. The defendant there was accordingly not permitted to show that a third party to whom he was a stranger was the owner. Here the plaintiff, being in possession, seeks to show infirmities in the defendant's title. He is undertaking to defeat that title in support of his charge that the defendant is disturbing his possession. He may show a stranger's title because it protects his possession in defense against the defendant. The situation thus differs from that of the Fowler Case.

III. An important issue is the width of the highway along the plaintiff's land for a distance of about forty-five rods. The defendant claims the highway exists only by prescription and with a width of about fifteen feet as the limits of actual travel. The plaintiff avers a legal layout with a width of three rods, and a dedication with the same width, as well as a prescriptive source.

The evidence to show a legal layout is of a secondary character. The town records show a "Return of Highway * * * two Rods wide and excepted of by the town New London April 3d, 1792," signed by a committee of two. This road ran northwesterly to a point at the southeast corner of the lake, without reaching the plaintiff's premises. In 1795 an article in the warrant for a town meeting was "to see if the town will except of the Road Laid out" from the end of the road accepted in 1792 "to Springfield Line." The vote on the article was "to except of A Road" thus extending "to Springfield Line three Rods wide." This road is the one on which the plaintiff's land abuts. The article and vote constitute the only evidence of a layout, and, so far as they are evidence, of a dedication. While the article refers to the road as having been laid out, no record of the layout has been found.

Neither the article nor the vote purports to describe the exact route and course of the layout. But there is in the article reference to a laid out road, briefly described in both the article and the vote, but sufficiently to identify it. Granting that a valid layout must be upon application therefor (Prichard v. Atkinson, 3 N.H. 335) and that the application and layout must describe the termini with reasonable certainty (Clement v. Burns, 43 N.H. 609, 614; Ford v. Danbury, 44 N.H. 388, 389; Wiggin v. Exeter, 13 N.H. 304), there is nothing to show a failure of these requirements. On the contrary, the article and vote furnish evidence of a valid layout.

As early records of matters of public interest, their recitals may be received to prove the truth of the recited statements. "This matter of the highway was a matter of general and public interest, in relation to which evidence of reputation was competent. * * * Recitals in any ancient writings, as well as the declarations of parties now deceased, would be evidence." Willey v. Portsmouth, 35 N.H. 303, 310. "The record was a public declaration that a highway had been laid out in the place described; and, after the lapse of more than 100 years, the presumption is that it was legally laid out. This record, in connection with * * * the evidence that the road, as laid out, was used more or less extensively as a public highway until 1876, was evidence sufficient to sustain a finding that the highway was legally laid out." Webster v. Boscawen, 67 N.H. 111, 113, 29 A. 670, 671. See, also, Thompson v. Major, 58 N.H. 242, 244.

While the article and vote contain a recital of only one of the termini of the highway with...