Sakansky v. Wein

• Decision Date: 07 November 1933
• Citation: 169 A. 1
• Parties: SAKANSKY et al. v. WEIN et al.
• Court: New Hampshire Supreme Court

169 A. 1

SAKANSKY et al.

v. WEIN et al.

Supreme Court of New Hampshire. Belknap.

Nov. 7, 1933.

Transferred from Superior Court, Belknap County; Burque, Judge.

Suit by Isaac Sakansky and another against Robert Wein and another, as Wein & Rosen. A decree for defendants was recommended by a master, and plaintiffs' exception to admission of certain evidence and the question of their right to injunction were transferred without ruling by the judge.

Case discharged.

Petition for injunction. The facts were found by a master.

At the time of the filing of the petition, the plaintiff Sakansky was the owner of a certain parcel of land with the buildings thereon, situated on the westerly side of Main street in Laconia. The deed by means of which he took title also conveyed to him a right of way, eighteen feet in width, over land which for the purposes of this case may be regarded as belonging to the defendants. Before trial Sakansky conveyed this property, together with the right of way, to the plaintiff J. J. Newberry Company, and took back a mortgage thereon. This right of way, with no expressed limitation as to mode of use, originated in a deed to the plaintiff's ancestor in title in 1849. This deed gave the right of way definite location upon the ground.

The defendants wish to develop their servient estate by erecting a building over the land subjected to the plaintiff's easement. They proposed to leave an opening in their new building at the place where it crosses the way; this opening to allow headroom of eight feet for the way where it passes under the defendant's building. They also propose to lay out a new way over level ground around the westerly end of the new building, which new way will give access to the same point on the dominant estate as the old way. This new way is free from obstruction and affords an easy means of access for vehicles whose height would prevent them from continuing to use the old way. The plaintiff objected and excepted to the introduction of evidence concerning the proposed new way.

The master ruled that neither party had any absolute or unlimited rights in the old right of way, but that the rights of each were to be determined by the rule of reasonableness. He further ruled that what was reasonable was a question of fact, to be determined by considering all the circumstances of all of the property, including the advantages accruing to the defendants and the disadvantages to be suffered by the plaintiff.

Applying the above principles he found that, considering the proposed additional right of way, the defendants' proposed reduction in height of the old right of way was not an unreasonable interference with the plaintiff's rights. But he found further that if it was not proper for him to take into consideration the proposed new way, then a reduction in height of the old way, as proposed, would be an unreasonable interference with the plaintiff's rights. On the basis of the above rulings of law and findings of fact, and giving consideration to the proposed new way, he recommended a decree permitting the defendants to build over the old way upon condition that they provide the plaintiff with the new way as proposed by them.

The plaintiff's exception to the admission of evidence concerning the new right of way, and the question of whether the plaintiff is entitled to an injunction, were transferred without ruling by Burque, J.

Demond, Woodworth, Sulloway & Rogers, of Concord, and Harold E. Wescott, of Laconia (Jonathan Piper, of Concord, orally), for plaintiff.

Fortunat E. Normandin, Jewett & Jewett, and Arthur H. Nighswander, all of Laconia (Fortunat E. Normandin, of Laconia, orally), for defendants.

WOODBURY, Justice.

In this state the respective rights of dominant and servient owners are not determined by reference to some technical and more or less arbitrary rule of property law as expressed in some ancient maxim (Franklin v. Durgec, 71 N. H. 186, 189, 51 A. 911, 58 L. R. A. 112; Horan v. Byrnes, 72 N. H. 93, 97, 54 A. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670), but are determined by reference to the rule of reason. The application of this rule raises a question of fact to be determined by consideration of all the surrounding circumstances, including the location and uses of both dominant and servient estates, and taking into consideration the advantage to be derived by one and the disadvantage to be suffered by the other owner. Bean v. Coleman, 44 N. H. 539; Garland v. Furber, 47 N. H. 301; Abbott v. Butler, 59 N. H. 317; Whittier v. Winkley, 62 N. H. 338; Joyce v. O'Neal, 64 N. H. 91, 6 A. 33; Gardner v. Webster, 64 N. H. 520, 15 A. 144; Low v. Streeter, 66 N. H. 36, 20 A. 247, 9 L. R. A. 271; Jewell v. Clement, 69 N. H. 133, 39 A. 582. The same rule has been applied to easements other than rights of way; for example, to aqueduct rights (Stevenson v. Wiggin, 56 N. H. 308; Olcott v. Thompson, 59 N. H. 154, 47 Am. Rep. 181); to rights of flow-age, both as to surface water (Franklin v. Durgee, supra); and as to water in a stream (Chapman v. Newmarket Mfg. Co., 74 N. H. 424, 68 A. 868, 15 L. R, A. (N. S.) 292). In the somewhat analogous cases involving the reciprocal rights of adjoining owners the same principle has been applied. Horan v. Byrnes, supra; True v. McAlpine, 81 N. H. 314, 125 A. 680. The master's general rulings of law are in accordance with the foregoing and are therefore correct.

The error arises in the application of the above principle to the situation presented in the case at bar.

Implicit in the master's findings of fact is the finding that it is reasonable for the plaintiff to have access to the rear of its premises for vehicles over eight feet high. The master...