Jewell v. Clement

39 A. 582, 69 N.H. 133

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1896
• Status: Published

Opinion

Wallace, J.

The question is whether the parties to the deed did or did not intend that the passway should be subject to bars. The reservation is silent on the subject. From the creation of a way by deed in general terms, without a provision giving the owner of the land over which it passes the right to erect gates or bars, neither a grant nor a denial of that right is necessarily to be implied. Bean v. Coleman, 44 N. H. 539, 547; Garland v. Furber, 47 N. H. 301. But the right to erect them cannot be implied if they constitute an unreasonable obstruction to the reasonable and proper use of the way. Neither party could have intended or understood that the reserved way was to be subject to any unreasonable obstruction. Whether the erection of the bars by the plaintiff was a proper use of his premises» compatible with the defendant’s reasonable enjoyment of the easement, or was an unreasonable- obstruction of the way, is a question of fact. In determining the question, the necessity or convenience of the bars to the one, their inconvenience to the other, and all other surrounding circumstances affecting either party, are to be considered (Joyce v. O'Neal, 64 N. H. 91; Gardner v. Webster, 64 N. H. 520), and ' presumably they were considered by the referee. The finding that the bars were an unreasonable obstruction of the defendant’s way, is in effect also a finding that they were not. reasonably necessary to the plaintiff. In view of this finding, a right in the plaintiff" to maintain them cannot be inferred.

Exception overruled.

Carpenter, C. J., did not sit: the others concurred.