French v. Marstin

32 N.H. 316

Opinion

Eastman, J.

*

Had this case been submitted to the jury under the charge of the court as to the law, several questions might have arisen which would, perhaps, have become necessary for us to decide. For instance, whether any right of way existed to lot 54, independent of the grant to John Phelps, in 1811, to the quarter acre; whether the grant was limited to John Phelps; whether the alteration in the way in 1830 or 1831, was made under such circumstances as to become a substitute for that part formerly used; and whether there was any right to use the way for driving sheep. These and other questions might have arisen. But as the case stands, the cause not having been submitted to the jury, and the facts being in dispute, we do not propose to discuss either of these questions.

There is one ground, however, which appears to us to settle the present action, whatever might be the finding of the jury or the conclusions of the court upon the other points.

There is no pretence of any right of way of any kind having been acquired by any one beyond and east of lot 54 ; the Bean lot, the Brown lot and Sheafe lots lying east and south of 54, and adjoining thereto, were acquired by the plaintiff in 1847 and 1848, and this suit was commenced in 1849.

It is well settled that if a person have a right of way over another’s land to a particular close, he cannot enlarge it and extend it to other closes. Com. Dig., Title Chimin, D. 5 ; Woolrych on Ways 34; Senhouse v. Christian, 1 Term 569 ; Howell v. King, 1 Mod. 190 ; Bac. Abr., Highway, C.; Davenport v. Lamson, 21 Pick. 72 ; Comstock v. Van Deusen, 5 Pick. 166.

In Davenport v. Lamson, the plaintiff brought trespass against the defendant for breaking and entering Ms closes, called the eight acre lot, and the Brown lot, and the defendant justified under a right of way across the lots to a three acre lot belonging to Mm. It appeared that the defendant owned the three acre lot, and also a nine acre lot purchased by him subsequently to his becoming tenant of the former, and that he had a right of way to the three acre lot. At the time of the trespass these two lots, the three acre and the nine acre, were not separated by any fence, and were one mowing field ; and the defendant, taking a load of hay, which was made up partly from each lot, proceeded from the three acre lot across the plaintiff’s close; and it was held that the defendant was liable for the trespass ; that he had no right to use the way as a way from the nine acre lot, although in so doing he passed last from the three acre lot upon the plaintiff’s close, and a part of the load was taken from the three acre lot.

The doctrine of the books upon this question is” undoubtedly sound. If a right of way to one lot can be extended at will, by the tenant, to another lot that may adjoin it, then may it be extended to a third, and so on to any limits that the tenant may choose.

Admitting, then, for the purposes of this decision, and for that only, that the defendant had a right of way to lot 54, to the extent and in the manner claimed by him, and still he cannot sustain this action, for he was undoubtedly in the wrong in attempting to cross the defendant’s close to go upon the Brown or Sheafe lot.

The case finds that, at the time of the alleged assault, the plaintiff was going to what he called his “ Mountain pasture,” which consisted’of the three lots, the Bean, the Sheafe and the Brown lot, to salt his sheep, and that he actually went and called Ms sheep together in the South pasture, which, in that year, was formed by a part of the Bean lot and the Sheafe lot, there being no fence between these lots ; it appearing, also, that the sheep generally ran in the Brown and Sheafe lots.

Now, what was the plaintiff using the way for, when the defendant stopped him ? Not to go to the quarter acre ; not to go to the Bean lot, and salt his sheep there; but to go to the “ Mountain pasture,” wherever he might find his sheep. That was his purpose, and that purpose he carried into effect. It cannot be said that his intent was only to go to the quarter acre or to the Bean lot, because the fact is stated in the ease to be otherwise. The case finds that the fracas occurred while the plaintiff was passing over the way in question, on the land of the defendant, to salt his sheep in his Mountain pasture. He claimed the unrestricted right to go to the Mountain pasture. It was with that intent that he entered upon the way ; to go to any part of the pasture; and he was in the exercise of a right which did not exist in him when the defendant interfered; the right to go to the Mountain pasture, the whole pasture, wherever the sheep might be.

We do not see how this ease can be distinguished in principle from that of Davenport v. Lamson, nor indeed from the general doctrine upon the subject; and sufficient matters are stated in the case as facts to settle this question without submitting it to the jury.

It does not relieve the plaintiff that the defendant did not resist his passing, on the ground that he was going to lots beyond the Bean lot. No doubt both parties understood the object of the plaintiff, but the defendant was not obliged to state the reasons why he objected. If he was in the wrong, he was answerable ; and if in the right, he was not called upon -to show his reason. It was quite as incumbent on the plaintiff to state that he was not going to the Mountain pasture, as for-the defendant to object to his using the way on that ground;

The fact, also, that the defendant had permitted the sheep to be driven over the way to the pasture about a week before, and that he had been paid for it, does not aid the plaintiff. His going there under those circumstances gave him no right to pass over the way on the day of the trespass, nor had this fact any tendency to show a right.

When the plaintiff was on the way, using it for an unauthorized purpose — the purpose of going to the Mountain pasture to salt his sheep, wherever they might be — the defendant had the right to stop him.

The court ordered a verdict for the defendant; and upon the question which we have considered, we think they were right, and there must be

Judgment on the verdict.

Pekley, C. J., having been of counsel, did not sit.