Chapman v. NewMkt. Mfg. Co.

• Decision Date: 04 February 1908
• Citation: 74 N.H. 424,68 A. 868
• Parties: CHAPMAN v. NEWMARKET MFG. CO.
• Court: New Hampshire Supreme Court

68 A. 868

74 N.H. 424

CHAPMAN

v. NEWMARKET MFG. CO.

Supreme Court of New Hampshire. Rockingham.

Feb. 4, 1908.

Exceptions from Superior Court, Rockingham County; Wallace, Chief Judge.

Action by Electa A. Chapman against the Newmarket Manufacturing Company. Verdict for plaintiff, and defendant brings an exception. Exception overruled.

Case, for flowage. Trial by jury, and verdict for the plaintiff. The defendant's title is by deeds from the plaintiff's ancestor, which convey a right to flow by the use of a certain dam. The plaintiff claimed that this gave only a right to reasonably exercise the granted privilege. The court submitted to the jury the question whether the defendant "unreasonably used the water of the stream by improperly managing the dam," and the defendant excepted.

Page & Bartlett and Ernest L. Guptill, for plaintiff. Kivel & Hughes, for defendant.

PEASLEE, J. The defendant's contention is that, because its deeds of flowage rights are absolute in form, the right conveyed is without limitation, so far as the servient estate is concerned. This is not the law here. Abbott v. Butler, 59 N. H. 317; Franklin v. Durgce, 71 N. H. 186, 51 Atl. 911, 58 L. R. A. 112; Home v. Hutchins, 71 N. H. 117, 124, 51 Atl. 645, and cases cited; Horan v. Byrnes, 72 N. H. 93, 97, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670; Berry v. Hutchins, 73 N. H. 310, 316, 61 Atl. 550. An unlimited conveyance of an easement is in law a grant of unlimited reasonable use. Bean v. Coleman, 44 N. H. 539, 543, 544. No express restriction was necessary to save to the grantor the use of his land beyond reasonably necessary use by the grantee, "because nothing beyond such use was included in the grant, either expressly or by implication." Home v. Hutchins, 71 N. H. 125, 51 Atl. 649. "There is no presumed grant of a right to exercise the easement in an unnecessary and unreasonable manner. * * * The right of the easement owner and the right of the landowner are not absolute, irrelative, and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both." Olcott v. Thompson, 59 N. H. 154, 156, 47 Am. Rep. 184. "The right is not to be exercised arbitrarily whenever the one entitled to exercise it thinks proper or sees fit, but only when there is a reasonable necessity for its exercise." Berry v. Hutchins, supra.

The question is not whether the defendant might flow strictly according to the letter of its deeds if such flowage...