City of Manchester v. Hodge

• Citation: 75 N.H. 502,77 A. 76
• Parties: CITY OF MANCHESTER v. HODGE et al.
• Decision Date: 01 July 1910
• Court: New Hampshire Supreme Court

77 A. 76

75 N.H. 502

CITY OF MANCHESTER

v. HODGE et al.

Supreme Court of New Hampshire. Hillsborough.

July 1, 1910.

Bill for injunction by the City of Manchester against Jeremiah Hodge and others.

The subject of the litigation has been transferred to the Supreme Court three times. 73 N. H. 617, 64 Atl. 23; 74 N. H. 408, 69 Atl. 527, and 75 N. H. 166, 71 Atl. 864. After the second decision, on April 6, 1908, the plaintiff moved in the superior court that the defendants be ordered to remove all incumbrances on Willow street maintained by them, and that if the defendants resorted to further litigation in the matter they should be ordered to pay all the plaintiff's further expenses in obtaining the relief sought. The defendants resisted the issuance of the order of removal on the ground that the fact should be determined whether certain articles actually interfered with the travel on the street, claiming the right to occupy the street as they were then occupying it. After the third decision an order of removal was made; and the court allowed counsel fees since April 6, 1908, as costs, subject to the defendants' exception. Exception overruled.

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

Burnham, Brown, Jones & Warren, for defendants.

WALKER, J. Upon the transfer of this case, reported in 74 N. H. 468, 69 Atl. 527, it was determined that "the legal title to one-half of Willow street, with the right to use the whole of it for any purpose for which a way to the cemetery could be used, at one time was and still is vested in the city as trustee for the public." In effect, the holding was that the defendants' rights in the street were the rights usually appertaining to abutters on a street, and that their occupation of the street or any part of it was subordinate to the reasonable use thereof by the public as a way to the cemetery. The legal rights of the parties to the use and occupation of the street were thus definitely adjudicated, and further litigation upon the subject of the occupancy of the street was rendered improbable and seemed to be unnecessary. Subsequently, on April 6, 1908, in the superior court the defendants resisted the plaintiff's motion that they be ordered to remove all obstructions erected or maintained by them upon the street, the effect of which was to unduly interfere with the use of the way as a street; and the question whether the order should be entered was transferred to this court. Upon the facts disclosed, the court said: "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...