Wason v. Nashua

Decision Date25 June 1931
Citation155 A. 681
CourtNew Hampshire Supreme Court

Action by Edward H. Wason against Nashua. Verdict for plaintiff. Transferred upon defendant's exceptions.

Verdict set aside, and new trial ordered.

Trespass to try title to land which the defendant, without condemnation, had included in widening Main street. Main, running north and south, is crossed at right angles by Pearl street. The plaintiffs lot, one hundred feet square, is situated at the southwesterly corner of the intersection. On it stand the Parkinson and Arnold blocks, so called, facing Main. The tract taken, marked x on the accompanying sketch, is the whole of the rectangular space in front of the blocks, bounded one hundred feet on Main and twenty-seven feet on Pearl. The faces of the plaintiff's blocks are on a projection of the building line on the westerly side of Main street, as it has existed for some considerable distance north of Pearl street from time immemorial. For a like period, this section north of Pearl has been devoted to business, and the traveled portion of Main has been extended to said building line.

Prior to the taking, the westerly line of Main street south of the plaintiff's lot was twenty-seven feet easterly of the projected line of the street as it had thus come to be traveled north of Pearl. The block on the Hunt or Esty lot, which bounded the plaintiff to the south, projected about twenty-two feet easterly of the plaintiff's buildings and of the building line to the north. The territory south of the plaintiff's lot for some considerable distance was formerly a residential section. The face of the dwellings thereon set hack twenty-seven feet from the street line, the space in front thereof being maintained by the owners as lawns and formerly fenced in. Before the memory of the witnesses, however, the Hunt block, on the lot formerly known as the Esty residence, had been extended as above stated, and, prior to 1924, the residences further south had come to be used more or less for business purposes.

In 1924, the defendant by condemnation proceedings widened Main street by taking twenty-seven feet off the easterly ends of the Esty or Hunt lot and of the lots to the south thereof. At the same time the city took possession of the plaintiff's tract here in question and included it in the reconstructed street, in effect extending the widening north to Pearl street. By agreement of the parties, the issues tried were (1) whether or not the public at the time of such extension, had an easement in the whole or any part of the locus in quo, and (2) the amount of the damages, if any, occasioned to the plaintiff by the taking. Trial by a jury who found for the plaintiff and assessed his damages.

Transferred by Scammon, J., upon the defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict, and to the allowance of statements of the plaintiff's counsel in argument. Other facts will appear in the opinion.

Wason & Guert and Doyle & Doyle, and Paul Doyle, all of Nashua, for plaintiff.

Lucier & Dowd and Robert E. Farley and A. A. Lucier, all of Nashua, for defendant.


The plaintiff acquired title to the northerly half of his lot, known as the Parkinson property, January 11, 1912. This estate had been under his control as agent since 1886. The southerly half, known as the Arnold property, was conveyed to him by deed dated June 13, 1917. The existing blocks on both lots have been occupied by retail merchants since before the memory of the witnesses called. From their earliest recollection until 1903-4, a sidewalk four to five feet in width extended from Pearl street along the front of the blocks and the northerly side of the Hunt store. For a like period, the remainder of the space hereinafter referred to as the outside area had remained in a rough state, receiving only such attention as the owners or their tenants saw fit to give it. In the years 1903-4, with the permission of the owners, the sidewalk was widened and recovered, and the outside area surfaced by the city, a shallow gutter marking the easterly line between it and the finished street. At later dates, with like permission, said area was resurfaced.

From time immemorial, the outside area had been used by the tenants and their customers for passing to and from the stores, for the transportation of goods, and as a parking space. For their accommodation, hitching posts were maintained along the curbing by the owners and tenants. People other than the customers freely traveled along the sidewalk, and sometimes hitched their horses, or later parked their cars, in the adjoining area. The nature, character, and extent of the public use of the walk and of the outside area, respectively, for different periods will later appear.

The defendant concedes that the tract in question is covered by the plaintiff's title deeds, but claims that, prior to the date of taking, the public had acquired an easement for travel therein either (1) through dedication by the owner and public acceptance through long user, or (2). by prescription. While the language of the exceptions to the denial of the defendant's motions for a nonsuit and a directed verdict, strictly construed, was appropriate only to raise the latter issue, the arguments of counsel have proceeded on the apparent understanding that the exceptions cover both issues, and they are accordingly so treated here.

As evidence of an express dedication, the defendant relies upon a condition in the deed of Peter Clark to Thomas Chase and John Taylor, all ancestors in the plaintiff's title, dated August 7, 1835, together with recitals and references thereto in subsequent deeds. It reads: "With the condition if ever any building or buildings is or are erected upon said premises any part of which or all of which shall project into Main street beyond a line drawn from the front side of the Washington House to the front side of Jesse Esty's and Peter Clark's house on said Main street then the premises and all right and title to the same shall revert and absolutely pass back to said Peter Clark." The Washington house was north, and the other named properties south, of the locus. The face of the Parkinson and Arnold buildings are on the line referred to. In January, preceding his deed to Chase and Taylor, Clark had acquired title to a tract fronting two hundred feet on Main street, which included not only the property here in question, but also the land for one hundred feet further south on which presumably his house as well as the Esty house, later the Hunt block, stood. Judicial notice may be taken of the fact that the locus in quo was in the line of the view, from the Clark and Esty properties, of a business section of the city. In the absence of any evidence of a prior conveyance by Clark of the southerly half of his lot, it may be assumed that the condition in his deed to Chase and Taylor was a building restriction in favor thereof, and appurtenant thereto. In any event, the condition merely forbade, on penalty of forfeiture to the grantor, the erection of buildings on the part conveyed east of the designated building line. No right of passage was reserved to the grantor, and no conveyance of any right of user was made to the city or to the public. If, as claimed, projections on the Parkinson and Arnold blocks had at times been extended easterly of the prohibitive line, such breach of the condition in no way enured to the city or public. The condition was not a dedication to public use.

The defendant claims, however, that the condition, if not an express dedication, was nevertheless a recognition by Clark of the existence of Main street on his property which gave rise to an implied dedication, or at least established a basis for a claim of right, which, followed by long public user, has ripened into prescriptive title. The claim that it was such an acknowledgment finds support in a literal interpretation of the words "if * * * any building * * * is * * * erected upon said premises * * * which shall project into Main street beyond" the designated line. (Italics ours.) The abnormality and needlessness of a provision restraining a grantee from building "into" a bounding street, however, raises a doubt as to whether the literal import of the language expressed the grantor's intention. The only conceivable purpose of such a restriction would be to add the penalty of forfeiture to that imposed by the law for an invasion of the highway. Had that been the grantor's purpose, however, more explicit language would have been used in declaring the existence of the highway. Moreover, the grantor's resort to outside monuments to designate the restricting line tends to show that he was creating a new building line of which there was no evidence on the tract conveyed; that the Parkinson and Arnold blocks had not then been built, and that the granted property was yet unimproved. It is conceded that the Clark and Esty houses set back from the street twenty-seven feet. It is improbable that the street had been extended across the unimproved half of the grantor's lot only to end at the front lawn of the Esty house. The uselessness of such a jog in the intersecting streets in a residential section is apparent, and tends strongly to disprove its existence. By "projecting into Main street beyond" the fronts of the houses named was evidently meant—projecting beyond the westerly line of Main street extended on the line indicated by the enumerated monuments. The language is so construed. While the condition was material upon the issue of damages, and admissible in explanation of the subsequent conduct of the owners, it affords no evidence to support findings, either of an implied dedication by Clark, or of color of title in the public.

The testimonial evidence addressed to the defendant's claim of title requires separate treatment, as respects the sidewalk and the outside area;...

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