Willey v. City of Portsmouth

• Decision Date: 11 March 1887
• Citation: 64 N.H. 214,9 A. 220
• Parties: WILLEY v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

9 A. 220

64 N.H. 214

WILLEY

v. CITY OF PORTSMOUTH.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Rockingham county.

Case for obstructing and digging up the plaintiff's way and carrying away gravel. The defendant owned the gravel on the lot over which the plaintiff's way passed. Subject to exception, the plaintiff was permitted to show acts of highway surveyors, and persons acting under them, in digging and carrying away the gravel for repairing highways. Verdict for the plaintiff, which defendant moved to set aside.

Frink & Batchelder, for plaintiff.

Samuel W. Emery, for defendant.

BINGHAM, J. The defendant owned the gravel over which the plaintiff's way passed, and, subject to exception, was permitted to show that the persons moving the gravel from his way were surveyors of highways, and persons acting under them. The case is meager in narrative, but it is understood that the gravel bank was outside the limits of any highway, and that the exception is to evidence showing for whom the persons digging the gravel claimed to be working. The manner in which the wrong was done, by whom, and under what claim, were things so closely connected with the main fact as to be admissible as a part of the res gest? If it was the purpose of the defendant, in taking the exception, to raise the question of its liability for the acts of highway surveyors, the case fails to show it. For aught that appears, the ruling in that particular may have been satisfactory. An exception to the admissibility of evidence on one point does not ordinarily raise the question of nonsuit for want of evidence on another. Judgment on the verdict.

CLARK, J., did not sit. The others concurred.

1 Reported by R. E. Walker, Esq., of the Concord bar.