Perley v. Hilton
| Decision Date | 02 June 1875 |
| Citation | 55 N.H. 444 |
| Parties | Perley v. Hilton. |
| Court | New Hampshire Supreme Court |
Evidence---Flowage---Title by prescription.
P brought an action on the case against H. and others, to recover damages for flowage to his land by means of the defendants' dam. The defendants claimed they had a right to flow to the top of their dam. The plaintiff called a witness, who testified that M., one of the defendants, had stated that they did not claim the right to flow to that height. The defendants then called M. to contradict said witness, and was permitted to state that the defendants claimed the right to flow to the top of their dam. Held, that this, being only a statement of their defence, in itself proved nothing; and as it did not appear that the jury were misled by the statement, it was no cause for setting aside the verdict.
H. and others erected a dam in the highway, and continued in the occupa-
tion thereof for more than twenty years, flowing, during the same time, land of P. above on the stream, with his knowledge, and without objection on his part, or interruption on the part of the state. Held, that P. could maintain no action for the injury occasioned thereby to his land
CASE to recover damages for flowage caused by a dam at the outlet of Wickwass pond in Meredith. Trial before STANLEY, J. The defendants, and those under whom they claim, have been in possession and have maintained a dam at the outlet of said pond for more than twenty years before the commencement of this suit; but the plaintiff claimed that said dam had been raised within that time, and that damages were done to his property by such raising. The plaintiff called one Dolloff as a witness, who was a land-owner around said pond, who testified to statements made by Marshall, one of the defendants, tending to show that they did not claim the right to flow to the height of the present dam. The defendants then called said Marshall, who testified in substance contradicting the testimony of Dolloff as to his statements and that he had always held the water back to the height of the present dam since he had been in possession; and, subject to the plaintiff's exception, was asked whether he claimed the right to flow as high as the present dam: to which he answered that he did.
There was evidence tending to show that said dam was within the limits of the public highway, and there was no evidence of title in the defendants to the land on which the dam is situated. The plaintiff requested the court to instruct the jury, that, there being no such evidence of title, if they should find that the dam was within the limits of a public highway at the time or times when it was raised or operated by the defendants and those under whom they claim, they could not gain a right to flow by prescription by thus raising the dam, and keeping up the water by means of it; but the court declined so to instruct them, and did instruct them, in substance, that it would make no difference to the plaintiff whether the dam was within the limits of the highway or not; that the right the public had in the highway was simply a right of passage; that for all other purposes the owner of the adjoining lands was the owner of the land to the centre of the highway; that while, as against the public, the owners of the dam perhaps could not gain a right by prescription to maintain their dam, as against the land-owners, they might and could acquire such prescriptive right, provided it did not interfere with the public use of the highway; to which the plaintiff excepted.
The jury having returned a verdict for the defendants, the plaintiff moved to set the same aside, and for a new trial for supposed error in the foregoing ruling and instructions.
The questions of law arising upon the foregoing case were transferred to this court for determination.
Hibbard, Pike & Blodgett, and Stone, for the plaintiff, cited 2 Bl. Com. 264, 265, and 3 Gr. Cr. on Real Prop. 422. Whipple and Jewell & Smith, for the defendants, cited Webber v. Chapman, 42 N.H. 326, Borden v. Vincent, 24 Pick. 301, and Washb. on Easements 99
1. The plaintiff called Dolloff as a witness to show that the defendants did not claim to flow to the height of the present dam. He testified to statements claimed to have been made by Marshall, one of the defendants, tending to establish that fact. Marshall was then called by the defendants to contradict Dolloff; and for that purpose it was clearly competent to ask him what he did state to Dolloff in that respect, and whether he stated to Dolloff that he claimed to flow to the height of the present dam. His answer to the question excepted to, in the presence of the jury, if not admissible, was immaterial. The defence set up was, that they had a right to flow to the height to which they did flow. The statement of Marshall, then, that they claimed the right to flow to that height, was only a statement of their defence which their counsel must have also asserted to the jury in conducting the defence,...
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Anthony v. Kennard Building Co.
...in the name of Mrs. Abadie. Goddard on Easements, 145; Washburn on Easements (4 Ed.), 129; Smith v. Kinard, 2 Hill (S.C.) 642; Perley v. Hilton, 55 N.H. 444. (b) There was claim of right in this case, hence, no easement could arise. Hunnewell v. Burchert, 152 Mo. 611; Hunnewell v. Adams, 15......
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...authorities and here referred to; Deregibus v. Silberman Furniture Co., 121 Conn. 633, 186 A. 553, 105 A.L.R. 1183, 1186; Perley v. Hilton, 55 N.H. 444, 447; Capps v. Merrifield, 227 Mich. 194, 198 N.W. 918; Coggins v. Shilling, 30 N.J.Super. 26, 103 A.2d 171, 173; 28 C.J.S. Easements, Sec.......
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