Hatch v. Hillsgrove

• Court: New Hampshire Supreme Court
• Writing for the Court: SNOW, J.
• Citation: Hatch v. Hillsgrove, 138 A. 428 (N.H. 1927)
• Decision Date: 23 June 1927
• Parties: HATCH v. HILLSGROVE.

138 A. 428

HATCH

v. HILLSGROVE.^*

Supreme Court of New Hampshire. Merrimack.

June 23, 1927.

Transferred from Superior Court, Merrimack County; Young, Judge.

Suit by Chester D. Hatch against George E. Hillsgrove. Decree for plaintiff, and case transferred on defendant's exceptions. Bill dismissed.

Equity, for injunction to restrain interference with an alleged right of way. The plaintiff owns a tract of meadow land of seven acres, together with a right of way leading therefrom over the land of another to a highway. The way is situated along the side of, and close to, the defendant's land. The traveled portion of the highway at the terminus of the way being inaccessible directly therefrom by reason of a steep embankment, the owners of the plaintiffs close, in order to pass to and from the level of the highway, have customarily turned across a corner of the defendant's land, over which they have acquired a prescriptive right of passage. Whether or not this detour is wholly within the limits of the highway is in dispute. The defendant placed obstructions in and across the way so that its use is entirely precluded. The plaintiff has no other means of access to a portion of his premises except in very dry seasons.

There was a trial by the court. At the close of the plaintiff's evidence the defendant moved to dismiss the bill, without stating the grounds, of his motion, and excepted to its denial. He submitted no evidence. The court found the facts, and entered a decree restraining the defendant from obstructing the way when the plaintiff should have occasion to use it as a means of access to, and egress from, the otherwise inaccessible portions of his close. To this decree the defendant excepted on the grounds that the decree is not warranted by the findings, and that the plaintiff has a plain, adequate remedy at law. Other facts appear in the opinion.

Nathaniel E. Martin and A. W. Levensaler, both of Concord, for plaintiff.

Robert W. Upton, of Concord, for defendant.

SNOW, J. The defendant's position, in support of his exception to the denial of his motion to dismiss, is in substance: (1) That the court was without equitable jurisdiction because it does not affirmatively appear on the record that the plaintiff did not have a plain and effective remedy at law, and that therefore the defendant is entitled by constitutional right to the trial of the plaintiff's title by a jury; and (2) that the plaintiff failed to make out a case for equitable relief on the facts reported.

1. By the terms of P. L. c. 317, the superior court has the powers of a court of equity, inter alia, in "cases in which there is not a plain, adequate, and complete remedy at law" (section 1), and "may hear and determine such cases according to the course of equity, and may grant writs of injunction whenever the same are necessary to prevent * * * injustice" (section 2). These powers, as a part of the general equity jurisdiction of the court, antedate legislative sanction (Manchester Dairy System, Inc., v. Hayward, 82 N. H. 193, 198, 132 A. 12), and are restricted "within no narrower limits than those prescribed by the statute" (Wason v. Sanborn, 45 N. H. 169, 171). See Parker v. Barker, 42 N. H. 78, 93, 77 Am. Dec. 789; Winnipissiogee Lake Company v. Worster, 29 N. H. 433, 445, 446, 447; Norway Plains Company v. Bradley, 52 N. H. 86, Ill. "No jurisdiction can be more ample and unqualified than that of this court in cases of injunction." Wason v. Sanborn, supra.

In cases where the cognizance of the court depends upon the inadequacy of the plaintiff's remedy at law, it may be conceded that the favorable determination of that issue is jurisdictional (Newcastle v. Haywood, 67 N. H. 178, 179, 37 A. 1040, Perkins v. Foye, 60 N. H. 496, 497); but the forum for its determination is necessarily the court whose powers are invoked (14 R. C. L. Inj., § 43). This issue, upon demurrer, would ordinarily be determined upon a consideration of the facts alleged in the plaintiff's bill (Coe V. Winnipissiogee Lake Cotton & Woolen Mfg. Co., 37 N. H. 254, 263, 264, Boston & Maine Railroad v. Portsmouth & D. Railroad, 57 N. H. 200, 202), or upon the facts alleged in the bill and answer, as the case may be (Rogers v. Mitchell, 41 N. H. 154, 157; Hotel Co. v. Marsh, 63 N. H. 230, 231; Upton v. Haines, 55 N. H. 283, 286). Whether there was a demurrer or an answer does not appear. The case proceeded to proof without objection by either party. The trial was therefore, as upon a general replication to an answer, or as upon the general issue in an action at law (Hutchinson v. Manchester St. Ry., 73 N. H. 271, 283, 60 A. 1011, Flannagan v. Shevenell, 82 N. H. 403, 135 A. 24), and the facts proved in place of the facts alleged afforded the basis for the court's conclusions (Dudley v. Eastman, 70 N. H. 418, 50 A. 101).

Certain facts deemed material have been found and a decree entered for the plaintiff. The evidence is not transferred. A general verdict or finding implies a finding of all the special facts necessary to sustain it, unless it appears from the special findings that such is not the case. Spaulding v. Mayo, 81 N. H. 85, 86, 122 A. 899. No finding inconsistent with the verdict has been pointed out, and none has been discovered. McGinley v. Maine Cent. R. Co., 79 N. H. 320, 321, 109 A. 715. It therefore follows that a finding that the plaintiff had no adequate remedy at law is to be implied from the decree. However, this jurisdictional fact does not rest alone upon such implication, since, as will be seen later, it is supported by the special findings reported.

The court having equitable jurisdiction, the defendant had no constitutional right of trial by jury of the issue of the plaintiff's title. Bellows v. Bellows, 58 N. H. 60; State v. Saunders, 66 N. H. 39, 87, 25 A. 588, 18 L. R. A. 646; Curtice v. Dixon, 73 N. H. 393, 394, 62 A. 492; 1 Whitehouse, Eq. Pr. § 29. Any claim that the defendant may have had to have the title tried by a jury upon issues framed (P. L. c. 339, § 23; Evans v. Evans, 78 N. H. 352, 353, 100 A. 671) was waived by proceeding without motion or objection to the trial of the case on its merits by the court. To hold otherwise would be to accord the defendant the advantage of a possibly favorable determination of the issue of fact by the presiding justice, and, failing thereof, to preserve to him an opportunity for a retrial by jury.

2. It does not follow, from the fact that the court has jurisdiction to grant the plaintiff relief because of the inadequacy of his remedy at law, that it will exercise its extraordinary powers. Bassett v. Salisbury Mfg. Co., 47 N. H. 426, 437, 438; State v. Sunapee Dam Company, 72 N. H. 114, 123, 55 A. 899; 14 R. C. L. Inj. § 43. The defendant's exception, therefore, raises the further question whether, on the record, the relief prayed for should have been denied as a matter of law.

The practice, as well as the competence, of a court of equity to grant injunctive relief in cases of interference with easements has been definitely recognized here. "Where an easement or servitude is annexed, by grant, or covenant, or otherwise, to a private estate, the due and quiet enjoyment of it will be protected against encroachment by injunction." Webber v. Gage, 39 N. H. 182, 187; Douglass v. Belknap Springs Land Co., 76 N. H. 254, 81 A. 1086, 37 L. R. A. (N. S.) 953; McCleary v. Lourie, 80 N. H. 389, 117 A. 730. See White v. Eagle & Phenix Hotel Co., 68 N. H. 38, 43, 34 A. 672. Other cases in which restraining orders have been sought because of the infringement of alleged private rights of way are Bean v. Coleman, 44 N. H. 539, Morgan v. Palmer, 48 N. H. 336, Fisher v. Carpenter, 67 N. H. 569, 39 A. 1918, and Williams v. Mathewson, 73 N. H. 242, 60 A. 687, in none of which was the power of the court questioned, either for want of jurisdiction of the subject-matter, or for competency to grant injunctive relief if justice had required. Such is the holding m the majority of the states. 47 A. L. R. 557, note; 5 Pomeroy's Eq. Juris. §§ 1957,

While a court of equity will not ordinarily exercise jurisdiction to settle a legal right on which equitable relief depends and which a party can as well establish in a suit at law, there are well-recognized exceptions to the rule, as where the right, or the facts supporting the right, are admitted (Burnham v. Kempton, 44 N. H. 78, 95); or where the right, though formally denied, is clear on the uncontroverted facts (Wason v. Sanborn, 45 N. H. 169, 171; Hart. v. Leonard, 42 N. J. Eq. 417, 7 A. 865; White v. Tide Water Oil Co., 50 N. J. Eq. 1, 7, 25 A. 199; Espenscheid v. Bauer, 235 Ill. 172, 85 N. E. 230; Manbeck v. Jones, 190 Pa. 171, 42 A. 536; Jones on Easements, § 883, 5 Pomeroy ...