Cheever v. Roberts

• Decision Date: 06 April 1926
• Citation: 133 A. 22
• Parties: CHEEVER v. ROBERTS.
• Court: New Hampshire Supreme Court

133 A. 22

CHEEVER

v. ROBERTS.

Supreme Court of New Hampshire. Belknap.

April 6, 1926.

Transferred from Superior Court, Belknap County; Sawyer, Judge.

Writ of entry by David Cheever against Dixie G. Roberts. Verdict was directed for plaintiff and case transferred on defendant's exceptions. Exceptions overruled.

Writ of entry for a small island in Squam Lake. Trial by jury. At the close of the evidence the court directed a verdict for the plaintiff, and the defendant excepted.

February 3, 1912, the plaintiff purchased of one Coolidge a group of small islands in Squam Lake, consisting of "three or four little fellows and a big one," the largest of which was known as "Duck Island." The conveyance was a quitclaim deed, in which the islands were described as follows:

"The following described islands and islets in Squam Lake, in the town of Center Harbor, in the county of Belknap, state of New Hampshire, being the so-called Duck Island, together with any buildings thereon, with any small islets in the neighborhood which are distant not more than two hundred (200) feet from the said Duck Island, said Duck Island and said islets being situated all within the town of Center Harbor, and about a quarter of a mile distant in a southeasterly direction from the easterly end of Long Island in said Squam Lake, and being some of the islands and islets described in the conveyances to me of said Long Island and the islands and islets adjacent to and in its neighborhood, as set forth in the deed of Elisha M. Fulton to me given June 22, 1892, and recorded with Belknap County Records, Lib. 88. Fol. 65-67, and also in a deed of the New Hampshire Land Co. to me given January 25, 1902, and recorded with said Belknap County Deeds, Lib. 108, Fol. 232, said island and islets having been held and occupied by me continuously since the time of said conveyances."

Under this deed the plaintiff immediately took possession of Duck Island, which he used as a camp site, and it was not denied by the defendant that the plaintiff has been in continuous possession of it ever since. The island in question, which was referred to by the defendant as "Little Duck Island," lies within 120 feet of Duck Island, and has an area of about a quarter of an acre.

In September, 1918, the plaintiff built a stone causeway from Duck Island to the island in question at an expense of $137. This structure is 135 feet in length, 4 or 5 feet wide at the bottom, and 2 1/2 or 3 feet wide at the top. The height above the foundation Is "probably 4 feet," which the builder believed would bring the top above high water mark. It is made of loose rocks, with flat stones on top to "make a passable place to walk." The material was taken from both islands and the bottom of the lake around the two islands. In the summer it projected about 18 inches above the water. The plaintiff testified that it was his purpose to build at some time a "sleeping shack" for his four boys on the small island, and he had the causeway built "to facilitate that and to consolidate the property. * * * It was in order to make a physical connection between these two pieces of my property."

In 1921 the defendant decided to obtain a location for a camp on Squam Lake. He testified that he "saw the Little Duck Island down there," and "went to the selectmen of Center Harbor and found that there wasn't anybody paying taxes on it." He then consulted an attorney, who advised him to get a quitclaim deed of the island from one Reed. The defendant testified that he "knew that Reed did not own it"; but "Reed said that he would give him a deed of Little Duck Island for $1" which he proceeded to do.

Thereafter, upon April 14, 1921, the defendant moved a portable camp onto the island, and has since constructed two other small buildings on it. During all this time the defendant knew of the existence of the causeway between the two islands, and that "somebody had probably built it," * * * but "didn't think that it was necessary to make inquiries about it." He never looked at the county records to see if any one owned or claimed to own the island, "because he didn't think there was any particular need of it."

Other facts appear in the opinion.

Jewett & Jewett and Stephen S. Jewett, all of Laconia, for plaintiff.

Stanton Owen, of Laconia, for defendant.

BRANCH, J. The trial court directed a verdict for the plaintiff upon the ground that "the defendant's deed from Mr. Reed, who had no title at all, and who never had possession, gives the defendant not even a color of title." The reason assigned for this ruling is clearly untenable. The demonstrated weakness of the defendant's paper title did not entitle the plaintiff to a verdict. Since the defendant was in possession, it was necessary for the plaintiff to show a better right to possession in himself before he could be entitled to a verdict. Lear v. Durgin, 15 A. 128, 64 N. H. 618; Goulding v. Clark, 31 N. H. 148; Atherton v. Johnson, 2 N. H. 31. But a wrong reason for a correct ruling will not destroy a verdict (Mason v. Railway, 109 A. 841, 79 N. H. 300; Nichols v. Fernald, 82 N. H.? 131 A. 836), and it will therefore be necessary to consider whether the ruling of the trial court can be sustained on other grounds.

Upon a writ of entry a verdict for the plaintiff can properly be directed only if the evidence establishes the plaintiff's, right to immediate possession so conclusively that reasonable men could not differ regarding it. But since this is purely a possessory action, like ejectment, which it superseded (Woodbury v. Woodbury, 47 N. H. 11, 23. 90 Am. Dec. 555), it is not necessary that the plaintiff show a clear legal title in order to...