Town of Winchester v. Capron

CourtSupreme Court of New Hampshire
Citation63 N.H. 605,4 A. 795
PartiesTOWN of WINCHESTER v. CAPRON.
Decision Date12 March 1886
4 A. 795
63 N.H. 605

TOWN of WINCHESTER
v.
CAPRON.
1

Supreme Court of New Hampshire.

March 12, 1886.


Trespass for entering and removing "a certain watch-house, or tramp-house, erected and owned by the plaintiffs, and standing wholly upon land legally taken and used by the public as a highway." Facts found by a referee:

The defendant owned the land over which the highway passed, and both sides of it, and the plaintiffs' title was that arising from the laying-out of the highway. It was in dispute whether the building was within the limits of the highway.

The plaintiffs alleged exceptions.

Batchelder & Faulkner, for plaintiffs.

H. W. Bingham, and E. M. Forbes, for defendant.

SMITH, J. "If any building, structure, or fence is erected or continued upon or over any highway, so as to obstruct the same, or lessen the full breadth thereof, it shall be deemed a public nuisance; and any person erecting or continuing the same shall be fined not exceeding fifty dollars; and the court shall order such building, structure, or fence to be removed." "The foregoing section shall not be construed to prohibit the erection of any watch-house or structure for public use by the selectmen of any town, or any sign or awning erected in conformity to the regulations established by the police officers." Gen. Laws, c. 76, §§ 11, 12. Section 12 does not authorize selectmen to erect a watch-house or other structure for public use within the limits of a highway. It merely prescribes that such house or structure shall not be deemed a public nuisance, liable to be abated as such, and excepts the selectmen from the penalty prescribed in section 11.

When land is taken for public use as a highway, the land-owner is entitled to receive a sum in damages, which, in theory of law, is an

indemnity for the use for which his land is taken. The land being taken for a highway, and for no other public use, the easement acquired by the public is limited to the right to travel over the same. Makepeace v. Worden, 1 N. H. 16. The soil and freehold belong to the land-owner, subject only to the public easement for travel, and he may use the land in any manner not inconsistent with the public convenience. How far the use of a highway for the laying down of water and gas pipes, the construction and running of tramways, (Attorney General v. Metropolitan R. Co., 125 Mass. 515,) the erection of telegraph poles, and stringing of telegraph wires, (Pierce v. Drew, 136 Mass. 75,) and...

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8 practice notes
  • Hartford v. Town of Gilmanton
    • United States
    • Supreme Court of New Hampshire
    • December 31, 1958
    ...to receive a sum in damages, which, in theory of law, is an indemnity for the use for which his land is taken.' Winchester v. Capron, 63 N.H. 605, 606, 4 A. 795. The damages paid to plaintiffs' predecessor in title were therefore for an easement or right to use as a public way that part of ......
  • Scranton-Pascagoula Realty Co. v. City of Pascagoula, 28653
    • United States
    • Mississippi Supreme Court
    • May 5, 1930
    ...109, 109 N.E. 104, L.R.A. 1916A 1290; R. R. Co. v. State, 94 Miss. 759; Williams v. Light & Ry. Co., 110 Miss. 174; Winchester v. Capron, 63 N.H. 605, 56 Am. Rep. 554; Hamby v. Dawson Springs, 12 L.R.A. (N.S.) 1164; Motoramp Garage Co. v. City of Tacoma, 42 A.L.R. 886, 241 P. 16; Chicago & ......
  • City of Rockland v. Johnson
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 26, 1970
    ...to receive a sum in damages, which, in theory of law, is an indemnity for the use for which his land is taken.' Winchester v. Capron, 63 N.H. 605, 606, 4 A. 795. The damages paid to plaintiffs' predecessor in title were therefore for an easement or right to use as a public way that part of ......
  • Sanborn v. Van Duyne, s. 13,496-(152).
    • United States
    • Supreme Court of Minnesota (US)
    • July 10, 1903
    ...be clearly unconstitutional and void. Portland v. City, 14 Ore. 188, 12 Pac. 265; Warren v. Mayor, 22 Iowa, 351; Winchester v. Capron, 63 N. H. 605, 4 Atl. 796; In re John and Cherry Sts., 19 Wend. 659. These are elementary principles, and there is no conflict in the decided cases upon the ......
  • Request a trial to view additional results
8 cases
  • Hartford v. Town of Gilmanton
    • United States
    • Supreme Court of New Hampshire
    • December 31, 1958
    ...to receive a sum in damages, which, in theory of law, is an indemnity for the use for which his land is taken.' Winchester v. Capron, 63 N.H. 605, 606, 4 A. 795. The damages paid to plaintiffs' predecessor in title were therefore for an easement or right to use as a public way that part of ......
  • Scranton-Pascagoula Realty Co. v. City of Pascagoula, 28653
    • United States
    • Mississippi Supreme Court
    • May 5, 1930
    ...109, 109 N.E. 104, L.R.A. 1916A 1290; R. R. Co. v. State, 94 Miss. 759; Williams v. Light & Ry. Co., 110 Miss. 174; Winchester v. Capron, 63 N.H. 605, 56 Am. Rep. 554; Hamby v. Dawson Springs, 12 L.R.A. (N.S.) 1164; Motoramp Garage Co. v. City of Tacoma, 42 A.L.R. 886, 241 P. 16; Chicago & ......
  • City of Rockland v. Johnson
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 26, 1970
    ...to receive a sum in damages, which, in theory of law, is an indemnity for the use for which his land is taken.' Winchester v. Capron, 63 N.H. 605, 606, 4 A. 795. The damages paid to plaintiffs' predecessor in title were therefore for an easement or right to use as a public way that part of ......
  • Sanborn v. Van Duyne, s. 13,496-(152).
    • United States
    • Supreme Court of Minnesota (US)
    • July 10, 1903
    ...be clearly unconstitutional and void. Portland v. City, 14 Ore. 188, 12 Pac. 265; Warren v. Mayor, 22 Iowa, 351; Winchester v. Capron, 63 N. H. 605, 4 Atl. 796; In re John and Cherry Sts., 19 Wend. 659. These are elementary principles, and there is no conflict in the decided cases upon the ......
  • Request a trial to view additional results

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