Dana v. Craddock

• Decision Date: 31 July 1891
• Citation: 66 N.H. 593,32 A. 757
• Parties: DANA et al. v. CRADDOCK et al.
• Court: New Hampshire Supreme Court

32 A. 757

66 N.H. 593

DANA et al.

v. CRADDOCK et al.

Supreme Court of New Hampshire. Sullivan.

July 31, 1891.

Bill in equity by Frances M. Dana against Sophia B. Craddock and others for an injunction against the erection of a bridge between Liberty Island, in Lake Sunapee, and the mainland, and for general relief. In the original bill, Mrs. Dana was the sole plaintiff. The defendants demurred, and the bill was amended by joining the attorney general as a plaintiff. The bridge has been built, and has been partly demolished. The question is whether either of the plaintiffs is entitled to a decree against its restoration, or for its removal or alteration. Mrs. Crad dock owns the island, and Mrs. Dana owns the land at the other end of the bridge. The length of the bridge is 200 feet, more or less. At each end, for a considerable distance, it is made of earth and stones, and the rest is a wooden structure on wooden posts.

Summary of the amended bill: The strait between the island and the mainland is a public water, and has been commonly used for navigation by rafts, boats, and vessels. In winter it has been used as a highway for public travel on the ice with ox and horse teams, and the use of it as a way for hauling wood and timber for use on Mrs. Dana's land is indispensable to the convenient and profitable enjoyment thereof. The bridge, if restored, will wholly obstruct and destroy the use of that part of the lake for all purposes of navigation, and as a winter road.

Summary of the answer: The lake, including the strait, is public water. Mrs. Dana owns only to the water's edge. The defendants, in common with the rest of the public, have a right to the reasonable use of the waters and bed of the lake. They deny that the strait has been commonly used for navigation by rafts, boats, and vessels, and say that it always has been and is practically unnavigable much of the time, and at all times except by small boats of light draught; and they traverse the allegations concerning a winter road on the ice. The island is valuable as a place of public resort, and in 1882 was connected with the shore upon the plaintiff's land by a bridge which was used by the defendants and public for access to the island until a portion of it was removed by Mrs. Dana's husband. February 11, 1889, upon the petition of the defendants and others, commissioners appointed by the governor and council under Laws 1887, c. 97, laid out a highway on the mainland from an existing highway "to a spike on the margin of the lake near the northerly side of the shore end of the Liberty Island bridge," being the bridge aforesaid. For the purpose of connecting the island with the highway thus laid out, and replacing what Mr. Dana destroyed, the defendants have hauled lumber; and, unless restrained, they intend to rebuild the bridge. They deny that the bridge, when rebuilt, will obstruct or destroy any such navigation, or such use as a highway, as the strait is capable of, or injure Mrs. Dana's property or infringe her rights, or in any way impair the reasonable public use of the lake.

The commissioners appointed by the governor and council gave notice of a hearing upon the petition for the highway, to the plaintiff and others. Mrs. Dana, the plaintiff, appeared by counsel at the hearing, and was awarded one dollar damages. No appeal was taken. The defendants contend that the bridge cannot be abated as a nuisance unless it is proved to be an unreasonable use of that part of the lake. The plaintiff contends that, as a matter of law she is entitled to an injunction without a trial of any question of reasonableness; that notice should have been given before the appointment of commissioners; that the defendants have the burden of proving such notice; that the record shows there was none, and the plaintiff offers to prove there was none. Case discharged.

A. S. Wait and George R. Brown, for plaintiff.

W. L. Foster, for defendants.

BLODGETT, J. Since the bill was amended by joining the attorney general as a plaintiff, the legislature has granted the defendants a revocable license, of which judicial notice may be taken (Hall v. Brown, 58 N. H. 93, 96), to maintain a passway between Liberty Island, in Lake Sunapee, and the mainland, which reads as follows:

"Section 1. The passway that has been built between Liberty Island in Lake Sunapee and the mainland, may be maintained and renewed by any owner or lessee of any part of said island, subject to such regulations and restrictions as may be imposed in any legal proceedings brought or to be brought by public authority for the protection and maintenance of public rights.

"Sec. 2. The license given by the first section of this act for the maintenance and renewal of said passway may at any time be changed by an amendment and wholly revoked by a repeal of this act, and no private right shall be acquired under it by lapse of time.

"Sec. 3. This act shall not Impair any private right whether involved in any pending suit or not.

"Sec. 4. This act shall take effect and be in force from and after its passage."

The attorney general being but the representative and agent of the state, the effect of the act was to remove the only ground upon which he could ask for an injunction to demolish and remove the pass way, as a public nuisance, and he has accordingly withdrawn as plaintiff from the pending suit. This leaves Dana the sole plaintiff, and the bill thus becomes a private bill to abate and restrain a public nuisance, to the maintenance of which the public consent has been duly obtained. The public, therefore, must be regarded as not injured by the defendants' acts; and, when the question of regulations and restrictions is settled, it does not appear that there will be any ground on which an action by the plaintiff can be maintained. Certainly the essential elements which are requisite to successfully invoke the aid of equity by way of injunction are wanting. No case of strong and clear injustice is shown, nor is there any ground to apprehend that loss of health, loss of trade or business, destruction of the means of subsistence, or permanent ruin to property, may or will ensue...