Crocker v. College of Advanced Science

• Decision Date: 20 July 1970
• Docket Number: No. 6043,6043
• Citation: 110 N.H. 384,268 A.2d 844
• Parties: , 1 ERC 1518 Elsie G. CROCKER v. The COLLEGE OF ADVANCED SCIENCE d/b/a Canaan College.
• Court: New Hampshire Supreme Court

Page 844

268 A.2d 844

110 N.H. 384, 1 ERC 1518

Elsie G. CROCKER v. The COLLEGE OF ADVANCED SCIENCE d/b/a Canaan College.

No. 6043.

Supreme Court of New Hampshire.

July 20, 1970.

Alexander J. Kalinski, Manchester (by brief and orally), for plaintiff.

Maynard, Dunn & Phillips, Concord (Roger B. Phillips, Concord, orally), for defendant.

LAMPRON, Justice.

Petition seeking a permanent injunction against defendant's alleged unreasonable use of a sewage easement upon plaintiff's land. Trial, with a view, before Loughlin, J., who made certain findings and rulings among which were the following: 'The Court finds that the petitionee is making an unreasonable use of the land of the petitioner. Further, that the petitionee has offered no concrete alternative to injunctive relief.' In a decree dated June 11, 1969, the Court enjoined the defendant from continuing its present use of plaintiff's land after June 11, 1970 and at that date to remove 'all feculent and foul matter' from plaintiff's premises.

Defendant objected to the Court's findings and order and also moved that the Court (1) add a finding that because of the proximity of defendant's premises to the Canaan water supply it was refused a permit to build a septic system thereon and had no alternative means of sewage disposal except by use of plaintiff's land; (2) amend its decree by ordering plaintiff to permit defendant to enter upon her land and build an underground septic tank and also to amend its order of removal because the majority of the matter was deposited over the past 61 years without objection. The motion was denied and all questions of law raised were reserved and transferred to this court.

Plaintiff's father, her predecessor in title, owned property on the west side of Canaan Street Village in Canaan. It consisted of a residence, open fields and woodland. In 1908, he granted by quitclaim deed to defendant's predecessor in title to the premises on the east side of the street, an easement over grantor's premises to 'construct and maintain a sewer not exceeding eight inches in diameter and discharge therefrom sewage * * * said sewer to be laid upon the following described line' which was specifically set out in the deed. 'Said sewage shall be discharged on the surface of the land in said * * * pasture westerly of the fence dividing it from the field.' The grantor had the privilege to discharge the sewage from his residence into this line but this is not now being done by this plaintiff.

In 1908 when the easement was granted, there were two buildings on defendant's premises, a main building built about 1831, and an annex. From 1908 to 1946, the main building was used primarily as a summer inn for two or three months of the year and could accommodate about 35 guests. In 1946 the premises were acquired by Cardigan Mountain School and the inn was used as a dormitory for about 24 boys. Later the annex was remodelled and toilet facilities constructed and tied into the sewer line. This provided housing accommodations for about 60 students. After plaintiff complained about this use of the sewer line, Cardigan moved to another location and stopped using these buildings as a dormitory.

Defendant purchased the property in 1960 and opened its school in 1961 housing about 44 full time students on the premises in question for 9 months of the year. The Court found that since then the flow of sewage through plaintiff's land has increased to a very great extent and feculent and foul matters flow through in great quantities and accumulate on the surface of plaintiff's land. 'In 1969 including students, faculty and other personnel, perhaps two hundred people were using facilities involving the sewage system. Complaints were made relative to odor from the sewage.' 'The Court had the benefit of a view on a nice, cool spring day * * * The Court considering the view as evidence * * * found the odor to be noisome and can well believe the evidence from witnesses that on a warm day the odor may well be unbearable. The sewage seeps for some distance through the wooded area of petitioner's premises.'

The Court also found that the odors emanating therefrom interfered with the peaceful enjoyment of plaintiff's residence and of the premises of other residents on the street. A sanitary water analysis, dated April 22, 1969, made by a State agency, of a sample of 'this fluvial' bubbling at the end of the sewer pipe on plaintiff's land was characterized thus: 'Very heavy bacterial contamination indicative of sewage pollution.' The president of the defendant college testified that he inspected plaintiff's premises on two occasions and agreed that the sewage discharge was 'not a good situation' and 'I would not welcome it.'

The college president also testified that the school has a capacity of 185 students. It has 12 full time and 6 part time faculty members, an administrative staff of 11, and 25 other personnel with an overall budget of $500,000. Several options to solve the problem have been discussed with the plaintiff without success. A proposal to take the sewage beyond plaintiff's property would cost about $200,000 and a request to the selectmen for a study of the sewage problem in the town received a 'complete negative. No interest' response. Defendant's counsel stated that the State will not permit the college to build a septic tank at its present location because of its proximity to the town water supply. The president testified that if the injunction were to be granted the college would close.

When an easement exists by an express grant, its use is determined by the terms of the grant...