Douglass v. Belknap Springs Land Co.

• Citation: 76 N.H. 254,81 A. 1086
• Parties: DOUGLASS v. BELKNAP SPRINGS LAND CO. et al.
• Decision Date: 05 December 1911
• Court: Supreme Court of New Hampshire

81 A. 1086

76 N.H. 254

DOUGLASS

v. BELKNAP SPRINGS LAND CO. et al.

Supreme Court of New Hampshire. Belknap.

Dec. 5, 1911.

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

Bill by Walter B. Douglass against the Belknap Springs Land Company and another. Transferred from the superior court. Case discharged.

In 1889 the Winnipesaukee Land Company owned a tract of land on the lake shore in Alton, and made a plan of the same, dividing it into house lots with appropriate streets, including one following the shore line the entire length of the tract and called Lake Shore Avenue. The company caused the plan to be recorded in the registry of deeds and sold some lots by reference to it, several of which are now owned by the plaintiff. In a short time the unsold balance of the land was taken on execution; and in 1897 that part of the land so taken lying north of the railroad and bordering on the lake was owned by the defendants William H. and Louis D. Russell, and that part lying south of the railroad by the defendant company. The purchasers of certain lots on Lake Shore avenue have erected buildings across the avenue. There was a mistake in the survey, and in one place there is some 200 feet less width of land than is shown on the plan. Some lots sold, which are shown on the plan as inside ones, in fact border on the shore or the avenue, and buildings extending to and over the water have been erected on these lots. All the building before mentioned has been done with the knowledge of the plaintiff, who made no objection until this proceeding was begun. As to these, he now concedes he is estopped to claim the way. Lake Shore avenue has never been wrought. It is rocky and precipitous in places, and it would not be practicable to use it except for a footway. A large part of the land has not been sold by the lot, and there are but few houses on the tract.

After the execution sale, the plaintiff bought two more lots (Nos. 2 and 46) of the defendant company. Lot 2 bounds upon a public highway, and lot 46 is separated from the same highway by one lot which is owned by the plaintiff. The deeds describe the lots by courses and distances, and "as shown on the plan of the Winnipesaukee Land Company, recorded in Belknap County Records." Being doubtful as to the title to lot 2, the plaintiff obtained a confirmatory deed thereof from the Russells; and, when he took this deed, he was informed by them that they owned the land between the railroad and the lake, and would do as they saw fit with the proposed streets and avenues. It was understood between them that the conveyances of these two lots "had no effect upon the land below." If the plaintiff has rights in the streets which the defendants cannot deprive him of, the prayer of the bill is to be granted.

Arthur A. Folsom and Stephen S. Jewett, for plaintiff.

Prank M. Beckford and Charles B. Hibbard, for defendants.

PEASLEE, J. The proposition that the plaintiff has rights in the streets which the defendants cannot deprive him of is well established. Walker v. Manchester, 58 N. H. 438; Bartlett v. Bangor, 67 Me. 460; Van O'Linda v. Lothrop, 21 Pick. (Mass.) 292, 32 Am. Dec. 261; New England, etc., Co. v. Everett Distilling Co., 189 Mass. 145, 75 N. E. 85; Chapin v. Brown, 15 R. I. 579, 10 Atl. a39; Lord v. Atkins, 138 N. Y. 184, 33 N. E. 1035; Lenning v. Association, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16. Riedinger v. Railroad, 62 Mich. 29, 28 N. W. 775. Thus far the authorities are unanimous. As the case is transferred, this entitles the plaintiff to the injunction as prayed for. But it is manifest that other questions are involved in this controversy. They have been argued by counsel, and their consideration is necessary in an equitable determination of the rights involved. These questions are: (1) To what streets do the plaintiff's rights extend? (2) To what lots are they incident? (3) Does a right exist along the shore line where the land is narrower than is shown upon the plan?

1. The plaintiff insists that as incident to each lot he purchased by the plan he acquired a right to use every street shown upon the entire tract. While cases are to be found which support this hard and fast rule, it cannot be sustained upon principle. The right is not based upon a covenant that the ways exist. Howe v. Alger, 4 Allen (Mass.) 206. It arises merely by way of estoppel. The time came when the grantor could no longer deny that streets existed as represented on the plan. "That time was when purchasers of lands, upon a consideration enhanced by the inducements held out by the proclamation of these landholders, acquired such rights with reference to their house lots thus purchased, and the convenient and indispensable enjoyment of them, as would render it fraudulent on the part of the vendors to revoke their agreement by changing or abolishing the location of the streets laid down on their recorded plan, with reference to which their sales and conveyances had been made." Walker v. Manchester, 58 N. H. 438, 441. Since this is the foundation of the right here involved, it follows that all the elements of an estoppel by conduct must exist. One of these elements is that the representation made must be material to the action about to be taken. If the representation is immaterial, there is no estoppel. Comings v. Wellman, 14 N H. 287, 292; Stevens v. Dennett, 51 N. H. 324, 333. The true rule, then, is that there is an estoppel to deny the existence of the...