Musgrove v. Cicco

• Decision Date: 07 February 1950
• Citation: 96 N.H. 141,71 A.2d 495
• Parties: MUSGROVE et al. v. CICCO et al.
• Court: New Hampshire Supreme Court

Page 495

71 A.2d 495

96 N.H. 141

MUSGROVE et al. v. CICCO et al.

Supreme Court of New Hampshire.

Feb. 7, 1950.

William Maynard, Plymouth, for the plaintiffs.

Hazen K. Sturtevant, Plymouth, for the defendants.

KENISON, Justice.

Squam Lake is one of the public waters of the state. R.L. c. 183, § 17. The plaintiff as a littoral owner had rights which were more extensive than those of one who is only a member of the public. Willis v. Wilkins, 92 N.H. 400, 404, 32 A.2d 321; Whitcher v. State, 87 N.H. 405, 409, 181 A. 549. While the bed of the lake is the property of the State to the natural high water mark, Taggatt v. Jaffrey, 75 N.H. 473, 76 A. 123, 28 L.R.A., N.S., 1050, 139 Am.St.Rep. 729; Whitcher v. State, supra, the plaintiffs' rights to erect a wharf or other structures into the lake is superior to that of the defendants if the latter have only the rights of a member of the public. Dolbeer v. Suncook Water Works Co., 72 N.H. 562, 565, 58 A. 504; Concord Manufacturing Co. v. Robertson, 66 N.H. 1, 25 A. 718, 18 L.R.A. 679; State v. Sunapee Dam Co., 70 N.H. 458, 50 A. 108, 59 L.R.A. 55. In the absence of a prescriptive right or an express grant from the public the defendants' motions were properly denied. The rights of the parties in this matter are governed by the principles set forth in Hoban v. Bucklin, 88 N.H. 73, 184 A. 362, 186 A. 8.

Present counsel for the defendants state in their brief that the defendants did not agree to have the case submitted, had no opportunity to correct or edit the 'agreed' facts and were prevented from presenting any evidence. The further argument is also made that: 'The Defendants now have evidence of ownership in the premises in question which they did not have at the time of trial although they diligently searched for it, such evidence is material to the point to be decided by the verdict and not collateral to it, and the evidence goes to the merits of the case and is of such a character that it is probable, at least, that a different result will be reached upon another trial.' It is difficult to ascertain from the record whether these matters have been presented to the Trial Court and considered by it. In the absence of a definite and specific offer of proof, State v. 4.7 Acres of Land, 95 N.H. 291, 62 A.2d 732, or a ruling on these matters by the Trial Court it is impossible to say that there has been any abuse of discretion or that the defendants are or are not entitled to a new trial. R.L. c. 398, § 1. If...