True v. McAlpine

• Decision Date: 02 June 1924
• Docket Number: No. 965.,965.
• Citation: 125 A. 680
• Parties: TRUE et al. v. McALPINE et al.
• Court: New Hampshire Supreme Court

125 A. 680

TRUE et al.

v. McALPINE et al.

No. 965.

Supreme Court of New Hampshire. Merrimack.

June 2, 1924.

Exceptions from Superior Court, Merrimack County; Kivel, Judge.

Suit by Walter H. True and another against Helen R. McAlpine and another. Decree for plaintiffs, and defendants except. Exception sustained, and bill dismissed.

Bill in Equity praying the court to enjoin the defendants from erecting a garage on North State street in the city of Concord. The defendant's lot is about 100 feet wide on the street and 220 feet deep. It is bounded on the south by land of the plaintiff True, and on the north by land of the plaintiff Sawyer. The defendants propose to build a 12-stall garage on the back end of their land and engage in the business of storing automobiles.

The court, Kivel, C. J., found that this would he an unreasonable use of their land and enjoined them from building or using the proposed garage, and the defendants excepted.

Stanton Owen, of Manchester, and Robert W. Upton, of Concord, for plaintiffs.

Nathaniel E. Martin, of Concord, for defendants.

YOUNG, J. By "reasonable" as that term is used in the court's finding is intended "legal," for it is the general rule that a person may make any legal use of his land that he sees fit. Garland v. Towne, 55 N. H. 55, 58, 20 Am. Rep. 164; Horan v. Byrnes, 72 N. H. 03, 54 Atl. 045, 62 L. R. A. 602, 101 Am. St. Rep. 670; Moore v. Berlin Mills Co., 74 N. H. 305, 67 Atl. 578, 11 L. R. A. (N. S.) 284, 124 Am. St. Rep. 968, 13 Ann. Cas. 217.

There is no statute or specific rule of the common law which forbids a person using his land to store automobiles or to engage in that business even when his land is located in a residential section.

If therefore it can be found that the use the defendants propose to make of their land is illegal, it is because it can be found that the ordinary or average man would not engage in that business in that section of the city. The test, therefore, to determine whether it can be found that the proposed use of the defendants' land is illegal is to inquire whether the ordinary man would use this land for that purpose.

Now it is common knowledge that the ordinary man is accustomed to use his land in the way he can get the most out of it, either in money or pleasure. This is true even when the use he makes of his land tends to some extent to make his neighbors' land less desirable for the purpose for which they are using it.

In fact the ordinary man is accustomed to think of his land as his and of using it as he pleases unless there is a statute which forbids it; that is, if the land is so located that it can be profitably used for a particular purpose he is accustomed to use it for that purpose whether that purpose is a site for a garage, a grocery store, a meat market, or a factory, and this is as true when the land is as when it is not situated in the residential part of a town.

Since the ordinary man is not accustomed to consult his neighbors in respect to the use he shall make of his land, but to use it as he pleases when there is no statute or specific rule of the common law which forbids using if for that purpose, it follows that the defendants may legally use their land as they propose, in the absence of proof that the proposed use is an unreasonable one.

In other words, it is true as the plaintiffs contend that the test by which to determine...