Gowen v. Swain

• Decision Date: 05 December 1939
• Docket Number: No. 3123.,3123.
• Parties: GOWEN v. SWAIN et al.
• Court: New Hampshire Supreme Court

10 A.2d 249

GOWEN

v. SWAIN et al.

No. 3123.

Supreme Court of New Hampshire. Strafford.

Dec. 5, 1939.

Rehearing Denied Jan. 4, 1940.

Exceptions from Superior Court, Strafford County; Johnston, Judge.

Suit in equity by G. Leroy Gowen against Leroy Swain and another for an injunction restraining defendants from crossing plaintiff's land to named defendant's adjoining woodlot. A master's report was allowed, and plaintiff and named defendant bring exceptions.

Plaintiff's exceptions overruled, and named defendant's exception sustained.

Petition, for an injunction to restrain the defendants from crossing land owned by the plaintiff and over which Leroy Swain (hereinafter called the defendant) claimed a right of way to his adjoining wood lot. A temporary injunction was issued upon the filing of a bond by the plaintiff. Trial before a master, who found the following facts:

The plaintiff's field over which the right of way is claimed is situated on the Hall road, so called, in Barrington. The plaintiffs grantor, the town of Barrington, acquired title to the land on October 5, 1935, by a tax collector's deed. The defendant's wood lot adjoins the plaintiff's land on the northwest. It was conveyed to the defendant's mother in 1879, and descended to the defendant and his brother on her death. In 1923 the brother conveyed his interest in the lot to the defendant.

The use which the defendant has made of the plaintiffs land is evidenced by wheel tracks leading from the Hall road through a gap in the stone wall bordering that road across the plaintiff's field and through a gap in another wall to the defendant's lot.

The master's report concludes as follows :

"The evidence of the Defendant tended to show that since he and his brother acquired title thirty-seven years ago, they had used the road whenever they wished, had annually used the way to obtain their winter's wood supply, and on any other occasion when they wished to visit their wood lot, either for business or recreational purposes, they had followed the road across the Plaintiff's field to their land. They had not asked permission, nor had permission been granted them to use the way. They went across openly whenever they desired with the idea that they had the right to do so. * * *

"The testimony introduced at the hearing as to the use of the way in question covered a period of approximately thirty-six years before objection was made by the Plaintiff in 1936. During that period of thirty-six years, there had been a continuous use of this way for the purpose of reaching the Defendant's land for the usual purposes in connection with wood land; also for purposes of recreation. This use had been with the knowledge and acquiescence of the then owners of the land. Evidence of permissive use or license was insufficient to establish that there ever had been any permission or license granted for such use.

"The Defendant Swain and his predecessors in title had not made a claim in words, nor had they ever declared that they were using the land adversely. The nature and frequency of the use, however, was such that the owners of the subservient field land should have been informed of a claim of right. The acts of the Defendant and his predecessors in their use of the way across the Plaintiff's field were of a character sufficient to justify a finding that they were done as of right. Accordingly, the Master finds that the Defendant in 1936, when objections were made by the Plaintiff, had a way by prescription across the Plaintiff's field land following the defined path way, and recommends to the Court that the Plaintiff's prayer for an injunction be denied.

"Evidence on the question of damages was introduced by the Defendants. The Defendant Everett Clark, who was hired by Defendant Swain to haul out wood, has suffered no damage. Defendant Swain claimed damages because of his inability to get out his wood. If the injunction is denied, he can now haul out his wood. The delay has not damaged him."

The master's report was allowed subject to the plaintiff's exception. Exceptions were also taken to the refusal of the master to grant certain of the plaintiff's requests for findings of fact and rulings of law. Other exceptions were taken to specific findings and to the refusal of the court to enter a decree for the plaintiff. The defendant excepted to the finding of the master on the question of damages.

Hughes & Burns, of Dover, for plaintiff.

Cooper & Hall and William A. Grimes, all of Rochester, for defendants.

MARBLE, Justice.

The plaintiff filed sixty requests for findings of fact and rulings of law. Many of these requests are virtual motions for a directed verdict. All requests of this nature and all exceptions to specific findings are disposed of by the conclusion here reached that all the master's findings, both general and special, are fully sustained by the evidence.

Numerous other requests call for the reporting of evidence rather than facts, see P.L., c. 339, § 11, and for the finding of facts which would be inconclusive on any issue. Failure to grant such requests furnishes no valid ground of exception. Moynihan v. Brennan, 77 N.H. 273, 274, 90 A. 964; Roberts v. Claremont Power Company, 78 N.H. 491, 493, 102 A. 537; Nichols v. Fernald, 82 N.H. 186, 188, 131 A. 836.

Several requests relate to the burden of proof, the plaintiff's contention being that the defendant was obliged to show by "clear and affirmative evidence" that "the use of the way was not consented to."

It is true that the defendant, having asserted a prescriptive right, was required to prove its existence by a balance of probabilities. 2 Tiffany, Real Prop., 2d ed., 519, pp. 2045, 2046; Burnham v. McQuesten, 48 N.H. 446; Taylor v. Gerrish, 59 N.H. 569, 571. But evidence of acts of such a character as to warrant the inference that he and his predecessors in title had used the way as of right for a period of twenty years or more constituted prima facie proof. Jean v. Arsenault, 85 N.H. 72, 73, 153 A. 819. It then became necessary for the plaintiff "to come forward with evidence" that those acts were, in fact, permitted. Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608, 610, 44 L.R.A.,N.S., 98. For "where an actual, uninterrupted use and enjoyment, as of right, with knowledge of the other party, is shown to have existed a sufficient length of time to create the presumption of a grant, the presumption stands as sufficient proof and establishes the grant, unless it is rebutted by proof that the use and enjoyment were permissive." Smith v. Putnam, 62 N.H. 369, 372. Notwithstanding this presumption, however, "the character of the use remains a question of fact, unless the proof and inferences are all one way * * * and the burden of proof remains on the defendant." Barber v. Bailey, supra, 86 Vt. 224, 84 A. 610, 44 L.R.A.,N.S., 98.

The plaintiff here fails because there is no evidence from which it could reasonably be inferred that the use made of his field, so far as the defendant or any of his predecessors in title are concerned, was commenced or continued with the leave and license of the owner. In other words, the defendant's uninterrupted use of the roadway for thirty-six years was "unexplained". Jean v. Arsenault, 85 N.H. 72, 75, 153 A. 819; Taylor v. Gerrish, 59 N.H. 569, 571. Since this is so, the fact that the master may have understood that the plaintiff assumed the risk of non-persuasion on the issue of permissive use is of no consequence.

The plaintiff's suggestion that color of title "is an essential element in the defense here set up" is clearly erroneous. "The purpose of color of title is twofold: first, to show that possession of part is taken under claim of title to the whole; second, to define the boundaries of the tract covered by the claim." 3 Washburn, Real Prop., 6th ed., § 1981. See, also, Dame v. Fernald, 86 N.H. 468, ...