City of Manchester v. Hodge

• Decision Date: 05 January 1909
• Citation: 71 A. 864,75 N.H. 166
• Parties: CITY OF MANCHESTER v. HODGE et al.
• Court: New Hampshire Supreme Court

71 A. 864

75 N.H. 166

CITY OF MANCHESTER

v. HODGE et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 5, 1909.

Transferred from Superior Court, Hillsborough County; Pike, Judge.

Bill by the City of Manchester against Jeremiah Hodge and another. Transferred from superior court. Case discharged.

See, also, 73 N. H. 617, 64 Atl. 23, and 74 N. H. 468, 69 Atl. 527.

Willow street is a private way, and is the westerly boundary of the plaintiffs' land and the easterly boundary of the defendants' land. The defendants are in possession of the street opposite their respective properties, have inclosed the same with fences, have built sheds thereon, and have incumbered the ground with lumber, stone, iron, and other things in great quantities. By so doing they have prevented and still prevent all travel over the street, and deprive the plaintiffs of all means of access to their cemetery over the same. In this proceeding the plaintiffs moved that the defendants be ordered to remove all obstructions thus maintained by them. The defendants claim that they have the legal right to use and occupy Willow street in the manner and to the extent above set forth. If they do not have the legal right to so use the street or any part of it, an injunction is to issue to the extent of the unlawful occupation thereof; otherwise, the plaintiffs' motion for such an order is to be denied.

George A. Wagner, David Cross, and Taggart, Tuttle, Burroughs & Wyman, for plaintiffs.

Burnham, Brown, Jones & Warren, for defendants.

BINGHAM, J. The defendants, as abutting owners upon Willow street, have no right to use the half of the street adjacent to the cemetery for any purpose other than travel, and no right to use the other half of the street, except for the purpose of travel, and such other purposes as are not inconsistent or incompatible with its reasonably free use as a way by the city in going to and from the cemetery. Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; LOw v. Streeter, 66 N. H. 36, 20 Atl. 247, 9 L. R. A. 271; Ladd v. Brick Co., 68 N. H. 185, 37 Atl. 1041; Jewell v. Clement, 69 N. H. 133, 39 Atl. 582; Tudor Ice Co. v. Cunningham, 8 Allen (Mass.) 139; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Williams v. Clark, 140 Mass. 238, 5 N. E. 802.

It is found that the defendants have so inclosed and incumbered the street as to prevent all travel upon it. This means, as we understand it, that the defendants not only use the half of the street adjacent to...