Hatch v. Hillsgrove

• Decision Date: 01 November 1927
• Docket Number: No. 2153.,2153.
• Citation: Hatch v. Hillsgrove, 139 A. 366 (N.H. 1927)
• Parties: HATCH v. HILLSGROVE.
• Court: New Hampshire Supreme Court

139 A. 366

HATCH

v. HILLSGROVE.

No. 2153.

Supreme Court of New Hampshire. Merrimack.

Nov. 1, 1927.

On rehearing. Former opinion reversed, and plaintiff's bill dismissed nisi. For former opinion, see 138 A. 428.

A. W. Levensaler, of Concord, for plaintiff.

Robert W. Upton, of Concord, for defendant.

SNOW, J. 1. The defendant complains that an exception taken by him to the admission of evidence has not been considered. The bill was for an injunction to enjoin interference with an alleged right of way. In addition to proof of prescriptive title to the way, the plaintiff offered evidence tending to show that the point at which the way was obstructed was within the limits of a highway. The defendant's exception was to the admission of testimony as to the location of the boundary line of the highway, and tending to show that the point of obstruction was within it.

Title to the easement gave the plaintiff all the rights of an owner to enjoy the way free from obstruction, and entitled him to an owner's remedy to protect his easement. Having established his ownership by prescription, neither his right to an unobstructed passage, nor his right, if any, to have the obstruction enjoined, could be affected by the determination of the question whether or not he also had an additional right as a member of the traveling public to cross the locus. In other words, upon proof of his title, the latter issue became immaterial to the result. The immateriality of the issue having been pointed out in the opinion, it was not deemed necessary to specifically deal with this exception. There was no claim that the evidence in question was prejudicial, and there can be no valid claim that it could have influenced the court in its finding on the other issues. As the objection was to the admission of unprejudicial evidence upon an issue which the findings of the court and the course of the trial rendered immaterial to the result, the defendant took nothing by his exception. Perley v. Marshall, 57 N. H. 200, 207; Smith v. Morrill, 71 N. H. 409, 410, 52 A. 928, and cases cited; Small v. Saunders, 81 N. H. 520, 521,129 A. 270, and cases cited.

2. The defendant argues that the trial court made merely a ruling and not a finding when stating its conclusion that the plaintiff had acquired a prescriptive title. The contention is in the teeth of the language of the court, and without merit. The language of the court is:

"The court finds that for a period of more than 20 years prior to the 4th day of May, 1923, when the defendant acquired his title, the plaintiff and his predecessors in title have used the right of way for the purpose of going to and from his and their land on the side of the swamp or marsh next to the Concord road, when they had occasion to do so; that such use has been of such a continuous, notorious, open, and adverse character, enjoyed without objection on the part of the defendant's predecessors in title; that ...