Hogan v. Lebel

• Decision Date: 19 April 1948
• Docket Number: No. 3715.,3715.
• Citation: 58 A.2d 321
• Parties: HOGAN v. LEBEL et al.
• Court: New Hampshire Supreme Court

58 A.2d 321

HOGAN

v.LEBEL et al.

No. 3715.

Supreme Court of New Hampshire.

April 6, 1948.

Rehearing Denied April 19, 1948.

Exceptions from Superior Court, Hillsborough County; Goodnow, Judge.

Bill in equity by Stephen T. Hogan against Fernando G. Lebel and another ordering defendants to remove a garage. Decree of dismissal, and plaintiff excepted.

Exceptions overruled.

Bill in equity praying that the defendants be ordered to remove a garage located upon a common passageway which runs along the easterly side of the plaintiff's lot in Nashua. Trial upon an agreed statement of facts, by the Court, who dismissed the plaintiff's bill, and made the following findings and rulings:

‘In the deed given to the plaintiff he was granted a right of way over a common passageway upon the Easterly side of his premises. At the time of this grant to him there was in existence a garage building on what now appears to be the Southerly end of this common passageway. The existence of this building was open and visible and the plaintiff as purchaser of the land and of the right of way was charged with notice that the right of way granted to him was limited by the existence of the garage building then on the common passageway. His right to use the common passageway was a right limited by the existence of this building, and in the absence of any provision as to the extent of the common passageway in length and in the absence of any agreement of the plaintiff's grantor that the garage should be removed, the plaintiff is charged with notice that the garage was to remain upon the passageway, and that his rights in the passageway were limited to the section of the passageway from the Southerly side of Harvard Street to the garage building.’

The plaintiff excepted specifically to the findings of the Court that: ‘(1) The existence of this building was open and visible and the plaintiff as purchaser of the land and of the right of way was charged with notice that the right of way granted to him was limited by the existence of the garage building then on the common passageway. His right to use the common passageway was a right limited by the existence of this building, and in the absence of any provision as to the extent of the common passageway in length and in the absence of any agreement of the plaintiff's grantor that the garage should be removed, the plaintiff is charged with notice that the garage was to remain upon the passageway, and that his rights in the passageway were limited to the section of the passageway from the Southerly side of Harvard Street to the garage building.’ A bill of exceptions was allowed by Goodnow, C. J.

Robert E. Early and Paul J. Doyle, both of Nashua, for plaintiff.

J. Leonard Sweeney and J. Leonard Kill-Kelley, both of Nashua, for defendants.

BRANCH, Chief Justice.

The...