Witham v. Quigg
| Decision Date | 08 January 1951 |
| Citation | 146 Me. 98,77 A.2d 595 |
| Parties | WITHAM v. QUIGG. |
| Court | Maine Supreme Court |
Locke, Campbell, Reid & Hebert and Robert O'Connor, all of Augusta, for plaintiff.
Sanborn & Sanborn, Augusta, for defendant.
Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.
This case is before the Law Court on motion for a new trial filed by the defendant after jury verdict for the plaintiff in Superior Court for Kennebec County. The writ alleges trespass by the defendant on land of the plaintiff fronting on Bangor Street in Augusta, Maine, and this alleged trespass depends upon the construction of the language in a deed from plaintiff to defendant dated November 29, 1933, which deed conveyed certain property located in the rear of plaintiff's property and granted defendant a right of way across plaintiff's land in the following language: 'A right of way is hereby conveyed to the said Clement N. Quigg, his heirs and assigns forever, on the northerly side of lot of said grantor which is clearly defined on the face of the earth and now in use.' An examination of the record discloses the following facts which may have some bearing in the interpretation of the language describing the disputed right of way.
Some time in 1930 plaintiff acquired certain property on the east side of Bangor Street in Augusta, Maine. Plaintiff used this property in the operation of a filling station and in the rear of the said property plaintiff had constructed a three car wooden garage. The northerly side of plaintiff's property was subject to a certain right of way granted to one Hayden in order to enable the occupants of the Hayden property to use a certain small garage located in the rear of the Hayden property and adjoining the plaintiff's property on the north.
On October 17, 1932, the plaintiff, in writing, leased to the defendant said three car garage and the record indicates that the plaintiff knew that the defendant was to conduct a general garage business on the property so leased. This lease remained in effect until November 29, 1933, when the plaintiff deeded to the defendant the rear lot together with the buildings thereon and granted defendant the right of way hereinbefore set forth. The record shows that defendant conducted on the premises the same type of a small general garage business by himself and that he used the northerly side of plaintiff's lot as a means of ingress and egress. Defendant claimed that he used all of the plaintiff's land lying between the northerly side of the filling station building and the Hayden line for the purposes of ingress and egress. The distance between the northerly side of the plaintiff's filling station building and his northerly line is stipulated to be 26.6 feet of which about four feet was used by a flight of stairs which led from the ground to the second floor of plaintiff's filling station building in which there was an apartment where the plaintiff formerly lived and subsequently where some of plaintiff's tenants lived. The space actually left, taking out the flight of stairs, therefore, would be 22.6 feet which defendant claimed he used during the period that he had the property under lease and after he purchased it and received the deed hereinbefore mentioned. The plaintiff denies this and states that he at all times had his car parked alongside the flight of stairs and that many times cars were parked two deep and that the defendant actually used about ten, twelve or fifteen feet of the plaintiff's premises on the northerly side of the lot near the Hayden line. The record shows that the average car is about six feet wide and that if there were two cars parked alongside or double breasted there would be left for the defendant to use approximately ten feet which was the clearly defined right of way then in use (meaning as of the date of the deed). The record shows that there were no marks to indicate the width of the right of way and that neither the plaintiff or defendant ever discussed the width of that right of way other than the fact that it would be along the northerly side of the plaintiff's property, except there was some conversation with respect to the width of the so-called Hayden right of way which appears to be understood by both plaintiff and defendant to be eight feet in width. There was also some conversation at the time of the making of the deed between plaintiff and defendant with respect to the plaintiff's reserving an eight foot right of way on the westerly side of the lot plaintiff sold to defendant, but apparently the record does not show that the width of the right of way granted the defendant by the plaintiff on the northerly side of plaintiff's lot was ever discussed other than that plaintiff and defendant were to swap rights of way. The...
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Bennett v. Lufkin
...v. Mackley, 127 Me. 335, 143 A. 261; Searles v. Ross, 134 Me. 77, 181 A. 820; Bragdon v. Shapiro, 146 Me. 83, 77 A.2d 598; Witham v. Quigg, 146 Me. 98, 77 A.2d 595. No exceptions were taken to the charge and indeed the charge is not included in the record before us. It must be assumed that ......
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Fossett v. Durant
...it was influenced by prejudice, bias, passion or mistake; otherwise its findings of fact are binding upon this Court. Witham v. Quigg, 146 Me. 98, at page 102, 77 A.2d 595 In the present case the question for the weight of any testimony given was plainly within the province of the jury unle......
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...The credit of the testimony of the witnesses of the plaintiff was for the jury and not for the court to decide. * * *' Witham v. Quigg, 146 Me. 98, 103, 77 A.2d 595, 598. There was sufficient evidence to justify the jury in concluding that plaintiff Beck contracted with the defendants eithe......
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...The burden of demonstrating that the verdict which was rendered is manifestly wrong rests here upon the defendant. Witham v. Quigg, 146 Me. 98, 103, 77 A.2d 595. He must make it apparent that such verdict was produced by prejudice, bias or mistake. Jannell v. Myers, 124 Me. 229, 230, 127 A.......