Elliott v. Town of Mason

• Decision Date: 07 November 1911
• Citation: 81 A. 701,76 N.H. 229
• Parties: ELLIOTT v. TOWN OF MASON.
• Court: New Hampshire Supreme Court

81 A. 701

76 N.H. 229

ELLIOTT

v. TOWN OF MASON.

Supreme Court of New Hampshire. Hillsborough.

Nov. 7, 1911.

Transferred from Superior Court, Hillsborough County; Mitchell, Judge.

Case for personal injuries by Clarence A. Elliott against the Town of Mason. There was a demurrer to the declaration, and the question raised thereby was transferred without a ruling from the superior court. Case discharged.

The declaration alleged, in substance, that the defendants maintained a private nuisance by the side of a highway adjacent to a lot of land which consisted of an uncovered ditch running parallel with the highway and along said lot; that the landowner had a private way from his premises across the ditch to the highway; that the ditch was made without the owner's consent and rendered travel over his private way unsafe and dangerous; and that the plaintiff, with the permission of the landowner, was traveling over the private way with his team to the highway when he was injured by being thrown to the ground in consequence of the uncovered ditch.

John M. Stark and Fremont E. Shurtleff, for plaintiff. Henry A. Cutter, for defendant.

WALKER, J. The plaintiff's position, as we understand it, may be stated thus: The uncovered ditch which the defendant maintains by the side of the highway renders the approach from the highway to the adjoining landowner's premises dangerous and unreasonably inconvenient, and as to the landowner constitutes a private nuisance. The plaintiff at the time of his injury was the landowner's licensee for the purpose of traveling upon his private way. From these premises he deduces the conclusion that in the right of the owner he is entitled to maintain this action for the recovery of the damages he suffered from the alleged nuisance. He argues that, if the owner of the abutting land could recover damages caused by the uncovered ditch, he has the same right under his license from the owner. But the fallacy of the argument consists in the assumption that his license to travel over the owner's private way gave him the rights of an owner of the land with respect to nuisances maintained upon adjoining land.

Under the law of this state, the ownership of land does not include the right to an unreasonable use of it which deprives an adjoining owner of the reasonable enjoyment of his land. The rights of adjoining proprietors of land are reciprocal and are determinable by the doctrine of reasonable user. "The doctrines of reasonable necessity, reasonable care, and reasonable use prevail in this state in a liberal form, on a broad basis of general principle." Haley v. Colcord, 59 N. H. 7, 8, 47 Am. Rep. 176; Davis v. Whitney, 68 N. H. 66, 44 Atl. 78; Ladd v. Brick Co., 68 N. H. 185, 37 Atl. 1041; Franklin v. Durgee, 71 N. H. 186, 51 Atl. 911, 58 L. R. A. 112; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670; Hamlin v. Blankenberg, 73 N. H. 258, 60 Atl. 1010; Moore v. Company, 74 N. H. 305, 67 Atl. 578, 11 L. R. A. (N. S.) 284, 124 Am. St. Rep. 968.

And this principle is as applicable to towns in their qualified ownership and control of highways as to individuals. O'Brien v. Derry, 73 N. H. 198, 204, 60 Atl. 843. If the defendant town in leaving the ditch uncovered, over which the adjoining owner must pass in order to go to and from his land, made an unreasonable use of the highway in view of the owner's reasonable occupation and enjoyment of his land, it may be guilty of maintaining a nuisance as to him. It might be said that its use of the highway in this particular was not justifiable, and that it ought to respond in damages to the landowner for any injury he is thereby compelled to suffer in the proper use and enjoyment of his property.

If it is assumed that this is a correct statement of the liability of the defendant to the one in possession of the adjoining land, it is necessary for the plaintiff to show that there is a similar liability on the part of the town to a bare licensee of the owner, who has no legal interest in the land, and who is not therefore deprived of any enjoyment of the rights of its use and occupancy, as the owner may be, or as a tenant might be. A merely temporary, transient occupation by a licensee or a visitor does not invest him with a legal interest in the land. The license "does not convey any right or estate in the land, and amounts to nothing more than an excuse for an act which would otherwise be a trespass." Blaisdell v. Railroad, 51 N. H. 483.

Though the question thus presented is somewhat novel, it has claimed the attention of the courts in a few cases. In Ellis v. Railroad, 63 Mo. 131, 21 Am. Rep. 436, it appeared that the defendant by one of its locomotives ran onto and killed a horse near the house occupied by the plaintiff's husband and his family, and left the dead animal there, which soon created a nauseating stench and made the plaintiff sick. Her action was brought to recover damages for her physical suffering caused by the nuisance. But she failed in her suit for the reason that she was not in the possession of the premises occupied by the family. The court say that the defendant "was guilty of a private nuisance, for which it rendered itself liable to an action by the person in possession of the house. The right of action in this case was in the husband of the plaintiff, he being the occupier and in the rightful possession of the house with his family, by contract with the owner of the property. Had the husband brought this suit it could have been maintained." "We have found no case where a private action has been maintained for corruption of the air by offensive odors, except by a plaintiff who was the owner of or had some legal interest, as lessee or otherwise, in land, the enjoyment of which was affected by the nuisance." Kavanagh v. Barber, 131 N. Y. 211, 214, 30 N. E. 235 (15 L. R. A. 689). In that case the house was owned by the plaintiff's wife, and the family lived "in the house by sufferance of the wife"; but for the reason above suggested he was not permitted to recover for "the personal discomfort to which he was subjected in the occupation of the house." This doctrine was affirmed in Hughes...