French v. Marstin

24 N.H. 440

• Court: Superior Court of New Hampshire
• Decided: July 15, 1852
• Status: Published

Opinion

Bell, J.

No question is made that the grantee, of a way is limited to use his way for the purposes and in the manner specified in his grant. He cannot go out of the limits of his way, nor use it to go to any other place than that described, nor to that place for any other purpose than that specified, if the use in this respect is restricted. The grantor has the right to limit his grant in any way he chooses, and the grantee takes the way, subject to all the restrictions the grantor has imposed, and cannot go beyond them without becoming a trespasser. Woolrych on Ways 33, 50, 259, &c.; Senhouse v. Christian, 1 D. & E. 560; Bullard v. Harrison, 4 M. & S. 387; Taylor v. Whitehead, 2 Doug. 475; Hodden v. Holman, 1 Rolle’s Ab. 391; 3 Cruise Dig. 103; Jackson v. Storey, Holt 455.

The question first raised in this case is, whether the defendant has alleged in sufficient and legal form the fact that the plaintiff was using, or rather abusing the privilege he had, in order to pass to other lands than those to which he was authorized to go by his grant. The plaintiff sets forth a grant of a right of way from the highway to a quarter acre lot described, and that he was going across the defendant’s land in this way, and not out of it, to go to .that quarter acre. The defendant admits the right of way claimed to the quarter acre, and that the plaintiff was passing across his land in his way, and to the quarter acre; but he alleges that the plaintiff, at the time, &c., “ was passing into, over and across the said close (of the defendant,) and through said one-fourth of an acre, to other lands of (the plaintiff) lying farther than, and beyond the said one-fourth of an acre, known,” &e. The objection of the plaintiff to this plea is, that it is but an imperfect way of stating that he was intending to go to lands beyond the' quarter acre, and that such intention is not issuable.

. It is generally true that in actions of trespass the intention with which a wrong is committed is not material; and it is also true, as was held in Gates v. Launsbury, 20 Johns. 427, that where the law gives a license to do a particular act, an intention afterwards to abuse the license will not make the party a trespasser ab initio. But it is not true that the intent of a party is not issuable. On the contrary, wherever the intent is material, it is traversable like every other fact; and there are a great many cases where the character of an act depends entirely upon the motive. Whatever is material to the right asserted, and necessary to be proved, must be alleged in the plea by which the party would avail himself of that right; and whatever is necessary to constitute an act a wrong, and is therefore necessary to be proved, must also be alleged in pleading; not always, indeed, in direct terms, but in some substantial manner. 1 Ch. Pl. 377; 2 Ch. Pl. 242, n. s; 1 Saund. Pl. & Ev. 343; 1 Wms. Saund. 242, n. 2; Arch. Civ. Pl. 205; 1 Salk. 196; Griffith v. Harrison, 8 Met. 377; Jones v. Howland, 3 Ph. Ev. 333; 1 St. N. P. 542, &c.

In this case the intent is, by the nature of the controversy, material. The plaintiff alleges his way, and then asserts that he was passing along his way to his quarter acre lot. The intent and purpose to go to his lot is the very essence of his justification, and a plea would be defective without it. So the defendant alleges in his rejoinder that the plaintiff was passing over this way to lands he had beyond the three acres; that is, he was passing along the way with the intent and purpose of going to other lands to which he had no right to pass by this, way. This makes the intent, as the plaintiff suggests, material. It is necessary to be alleged, and if disputed, to be proved. It is an issuable fact, because it is material. .But though it would be true, if the intent were directly alleged, that it might be traversed and tried, yet that is not this case. The fact here alleged is not the intent merely, and it does not necessarily stand on the same ground that it would do if the bare intent was alleged; as if the defendant had rejoined that the plaintiff, at the time when, &c., and when he was in said way to said quarter acre lot, did intend to go through and beyond said quarter acre lot to other lands, &c. Upon such pleading the question might arise, as it did in Gates v. Launsbury, whether a purpose and intention existing in the mind, not acted upon, mutable in its nature, and which might never be carried into effect, could render an act, lawful in itself, unlawful. And it seems probable that in such a case the court would feel compelled to follow the case of Gates v. Launsbury. The rejoinder here does not allege a mere unexecuted purpose and design. It alleges that the party was passing to the land beyond; that is, that the plaintiff was then carrying his intention into effect; he was then using the way for an unauthorized purpose. Here is a charge, not of an intention, but of an act done with wrongful intent. If the evidence shows that the party was at the time acting in pursuance of such illegal purpose, the act is. illegal, and no subsequent change of intention, or failure to pursue the wrongful purpose, could make any difference. If, as is suggested by the plaintiff, the passing through the quarter acre lot is not necessarily a wrong, it does not follow that the rejoinder is defective. It is primd fade a wrong, and the plaintiff must reply the facts which deprive it of its wrongful character; or he must deny the passing with the wrongful object charged in the rejoinder, and the question, what was the intent of the party in the use he was then making of this way, would then be a question for the jury.

There is no question that at the present day an uninterrupted user of an easement upon the land of another for a period of twenty years, under a claim of right, while all parties concerned are free from any disability, and seized of estates in fee in possession, is primd facie evidence of a'right to such easement, and of a grant which is now lost, or which does not now exist. Wool. on Ways, 19, 288; Campbell v. Wilson, 3 East 294; Sivett v. Wilson, 3 Bing. 115; 10 Moor 539; Keymer v. Summers, Bull. N. P. 74; Gilman v. Tilton, 5 N. H. Rep. 233; 3 Kent’s Com. 442; Watkins v. Peck, 3 N. H. Rep. 360.

The right to such easement may come in question in various ways, either upon pleadings, in which the party is bound to set forth his right, as he claims and expects to establish' it, or incidentally upon general pleadings. At common law it was necessary for the party who alleged a grant of an interest in land, to set forth the names of the parties, and the date of the grant, and to proffer to produce the same to the court, that the other side might have the opportunity to hear it, and to object to it, if he chose. The loss or destruction of the deed upon which a title of this kind depended, of course necessarily occasioned the loss of the title itself. Wymark’s case, 5 Co., 74; Seyfield’s case, 10 Co. 88. “Et ideo si le fait soyt perd tout est perd." Bro. Ab. Monstrans defaits 187.

But with the changes of the times, the increased number of written instruments, and the consequent increased frequency of the loss or destruction of such writings, the courts have gradually yielded. to a change of rule in this respect, and instead of requiring the production of the deed itself, secondary evidence was allowed of its existence and contents, upon proof of its loss, or destruction, or that it was in the possession of the adverse party; and as a necessary consequence of this change they no longer require an offer to produce the deed. They permit the party to allege an excuse for its non-production, as that it is in the hands of the defendant, or that it is by law in some custody from which it cannot be removed, or that it is destroyed or lost. The loss of the direct and usual evidence of a right has not now, of course, the effect practically to destroy the right by destroying the only admissible evidence of its existence. 1 Wms. Saund. 323, n. 6; Wright v. Rattray, 1 East 381; Read v. Brookman, 3 D. & E. 151; Tatty v. Nesbitt, 3 D. & E. 153, n.; 1 Tidd Pr. 636; Fisher v. Ford, 12 A. & E. 654.

Courts occasionally evince an undue tenacity for the old maxims and rules of the common law, when the reason of them has ceased; and sometimes when new principles have been adopted by them, or have grown up with time, which are practically inconsistent with them. The ancient rule, when the party pleading a deed was bound to make a profert of it to the court, was, that he must set forth the parties, and the date of it. And when the rule requiring a profert has been relaxed, the same rule has of course generally continued, as the result of the doctrine of the law relative to variance, which is an essential feature of the law of pleading, and which requires that a party should state his case as he expects to prove it. While the ordinary rules as to secondary evidence were alone recognized, the party conformed his plea to his proof; that is, to his copy, or the recital of it in some other deed, or the like, or the recollection of his witness, who had seen it; and he set forth the names of the parties, and the date, because if the plea was materially variant from the proof, the issue must be found against him.

The case relied on by the defendant seems to us one of the cases where courts are found sticking to the form when the substance has departed. The rule is settled beyond controversy, that long continued user is evidence of a lost or non-existing grant,

. from some person who might at some time have made a valid grant, to some person capable of accepting it. It proves this. It cannot prove more. User of a way cannot prove a grant by A. to B. on a given day,-unless there be other circumstances, which confine the evidence to a particular time and to the parties then interested. Campbell v. Wilson, 8 East 294. The evidence of such limitation forms no essential or natural part of the proof of user. If a grant is pleaded from a particular person to another, at a certain date, the party, upon proof of mere user, fails to prove his case as he has stated it, and must lose the verdict. Now the rule in question and this result are entirely inconsistent and incompatible, and one or the other must give way. And we think. there can be no reasonable doubt which of these is to be suffered to fall into that oblivion which befits mere technicalities.

The universal rule of the law of pleading is, that a party is .bound to state and give notice to the other party, of all the material facts which it is necessary for him to prove, in case they are denied, in order to establish the right or claim on which he relies:. Whatever it is not necessary for him to prove, it is not necessary to allege: and this rule settles the question in this case. It is not necessary for the party alleging the acquirement of an easement, to prove by whom or to whom or when it was granted; it is enough if he proves by twenty years’ user, unexplained, a grant supposed to be lost, and of which nothing is known beyond what may be inferred from such user. It is then of course not necessary to allege these facts, and their omission is no cause of demurrer. This form of pleading will be defective, except in cases where the evidence consists of user alone. If the names and date are known, they must be stated, or the proof will be variant from the pleadings. On demurrer, either mode of statement is sufficient.

It is objected to the plea, that it is bad on demurrer, because an allegation that a party gently laid his hands upon another, molliter manus imposuit, is no justification of a beating and wounding. Various authorities are cited in support of that position, to which others might be added. And whatever doubts we might have had if the question were new, the law must be regarded as settled, and the plea bad.