Clark v. Manchester

• Decision Date: 16 March 1888
• Citation: 13 A. 867,64 N.H. 471
• Parties: CLARK v. MANCHESTER.
• Court: New Hampshire Supreme Court

13 A. 867

64 N.H. 471

CLARK

v. MANCHESTER.¹

Supreme Court of New Hampshire. Hillsborough.

March 16, 1888.

Exceptions from Hillsborough county.

Case for injury resulting in the death of the plaintiff's minor son from a defective highway in Manchester. Verdict for the plaintiff, $4,420.09. At the close of the plaintiff's evidence the defendant moved for a nonsuit, because there was no evidence of a highway existing at the time and place of the alleged injury. The plaintiff's son, a minor child of three and a half years of age, was found drowned in the water of what had been a city reservoir, on the morning of September 28, 1879. The reservoir was situated north of what was known as Douglass street and west of what was known as West street, and was constructed and had been used by the city for fire purposes. It not being further required for any purpose, the city, at the time of the accident, was filling it with earth, and the plaintiff's evidence tended to show that it had been filled for a distance of 35 to 40 feet from the southerly end. The place where the child was found was a little to the northerly of the earth filling, and a few feet to the west of what is known as West street. Before the city commenced to fill the reservoir it had been inclosed by a picket fence. This fence was taken away, and along the west line of West street a temporary fence of posts and boards, two boards high, was placed, the boards being a foot in width, and the lower one about a foot from the ground. The plaintiff claimed that the child fell into the water, while traveling on West street through want of sufficient railing or guards upon that side of the street, and by reason of a gully running from the street down to the water. There was no evidence that a highway had ever been laid out there. The plaintiff's evidence tended to show that, 40 years ago or more, the owners of the land in that vicinity divided it into lots, leaving spaces of suitable width for streets, among which was what has since been known as West street, 40 feet in width, extending from Douglass street northerly about 110 feet. Lots were sold, and houses and other buildings erected. In 1849 a house was built at the corner of West and Douglass streets upon the east side of West street, and not long after a barn and stable upon the same side of West street further north were built, and a house was erected there about 1853. The stable was used for some years as a livery stable, and people having occasion to go there went to and from the stable with teams, passing over West street from its entrance to Douglass street. People having occasion to go to the houses there went to and from them in the same way. Some of the Amoskeag land to the north was let to various tenants, who went to and from it for the purpose of carrying it on over West street, and also drew the products from it the same way. For several years-operatives in the mills living in that vicinity walked over this street to and from their work, crossing the corporation bridge near the mills. The bridge was destroyed or taken away, after which the operatives went another way. For many years prior to the accident, large numbers of persons, particularly the young, were accustomed to go over this ground to picnics, festivities, and other amusements, upon playgrounds on the Amoskeag land to the north and west of the reservoir lot, and a base-ball ground has been established there, to which many people habitually flock to witness the games, going and coming the same way. In all cases, the people passing over the land known as West street have done so as if it were a public street, without objection from any one and without obtaining license or permission. It has always been open and unobstructed, and no one has ever claimed any right there adverse to the right of public travel. For many years prior to 1879 the city has made repairs upon the street. The land west of West street and north of Douglass street was open and unfenced until 1860, and persons could and frequently did go over it at pleasure. The city purchased the lot upon the west of West street in 1865 or 1866, constructed the reservoir, and inclosed it with a fence, leaving West street 20 feet wide, as originally left in the plotting of the lots. Until that time there was nothing to mark the west line of West street, and no wrought or built road, but a footpath made by foot travel, and wheel tracks made by teams, somewhere within the limits of the 20-foot space. It was not claimed by the plaintiff, and there was no evidence, that there was a highway at the place where the body of the boy was found. No one saw him fall or go into the water. The boy was last seen alive at about 5 o'clock in the afternoon of the day before his body was found, alone, going from the land north of the reservoir lot, around the corner into West street south, about 75 feet distant from the the place where the evidence showed a gully extended from the...