Kenniston v. Hannaford

Supreme Court of New Hampshire

Kenniston v. Hannaford

58 N.H. 28

DecidedDecember 5, 1876

StatusPublished

This text of 58 N.H. 28 (Kenniston v. Hannaford) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenniston v. Hannaford, 58 N.H. 28 (N.H. 1876).

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Opinion

Foster, J.

It is no objection to a recovery in a real action, that the tenant has an easement in the demanded premises. The right of the demandants to the fee and of the tenant to an easement therein, are rights independent of each other, and may well subsist together, when vested in different persons. A recovery by the demandants will not affect nor disturb the easement of the tenant. If he shall be interrupted in its enjoyment, he may still assert his rights by appropriate proceedings in law or equity. Hancock v. Wentworth, 5 Met. 446; Morgan v. Moore, 3 Gray 319; Alden v. Murdock, 13 Mass. 256; Miller v. Miller, 4 Pick. 244; Tyler v. Hammond, 11 Pick. 193; Trask v. Wheeler, 7 Allen 109; Blake v. Clark, 6 Greenl. 436; Thompson v. Prop. of Androscoggin Bridge, 5 Greenl. 62, 65; Bradbury v. Cony, 59 Me. 499; Brondage v. Warner, 2 Hill (N. Y.) 145; Blake v. Ham, 53 Me. 430.

But as the demandants, in a writ of entry, cannot deprive the tenant of his easement, so neither can the extent of the incumbrance imposed thereby be ascertained or defined in any proceeding in which the quality and extent of such claim is not brought in issue. See Stearns on Real Actions 202, 207; Jackson on Real Actions 91; Gale on Easements (4th Eng. ed.) 614; Whidden v. Proctor, 17 N. H. 90; Melcher v. Flanders, 40 N. H. 155, and cases cited; Wiggin v. Smith, 54 N. H. 213. Like extraneous matter in an auditor’s report, the superfluous findings may be rejected. Bartlett v. Trefethen, 14 N. H. 427; Stevens v. Thompson, 17 N. H. 103; Green v. Pickering, 28 N. H. 360.

The substance and point of the defendant’s plea here is, that he is tenant of the freehold and not of a less estate. But, as we have seen, although he fails to support his plea, he is not estopped thereby, nor by any judgment against him, upon these pleadings, from asserting his claim to an easement in the land.

The case of Rogers v. Sinsheimer, cited by the defendant, is based *30 upon a provision of statute (2 N. Y. Rev. St. 307, s. 30), that, in ejectment, the nature and extent of the plaintiff’s interest must be specified in the verdict.

Case discharged.

Stanley, J., did not sit.

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Foster, J.

It is no objection to a recovery in a real action, that the tenant has an easement in the demanded premises. The right of the demandants to the fee and of the tenant to an easement therein, are rights independent of each other, and may well subsist together, when vested in different persons. A recovery by the demandants will not affect nor disturb the easement of the tenant. If he shall be interrupted in its enjoyment, he may still assert his rights by appropriate proceedings in law or equity. Hancock v. Wentworth, 5 Met. 446; Morgan v. Moore, 3 Gray 319; Alden v. Murdock, 13 Mass. 256; Miller v. Miller, 4 Pick. 244; Tyler v. Hammond, 11 Pick. 193; Trask v. Wheeler, 7 Allen 109; Blake v. Clark, 6 Greenl. 436; Thompson v. Prop. of Androscoggin Bridge, 5 Greenl. 62, 65; Bradbury v. Cony, 59 Me. 499; Brondage v. Warner, 2 Hill (N. Y.) 145; Blake v. Ham, 53 Me. 430.

But as the demandants, in a writ of entry, cannot deprive the tenant of his easement, so neither can the extent of the incumbrance imposed thereby be ascertained or defined in any proceeding in which the quality and extent of such claim is not brought in issue. See Stearns on Real Actions 202, 207; Jackson on Real Actions 91; Gale on Easements (4th Eng. ed.) 614; Whidden v. Proctor, 17 N. H. 90; Melcher v. Flanders, 40 N. H. 155, and cases cited; Wiggin v. Smith, 54 N. H. 213. Like extraneous matter in an auditor’s report, the superfluous findings may be rejected. Bartlett v. Trefethen, 14 N. H. 427; Stevens v. Thompson, 17 N. H. 103; Green v. Pickering, 28 N. H. 360.

The substance and point of the defendant’s plea here is, that he is tenant of the freehold and not of a less estate. But, as we have seen, although he fails to support his plea, he is not estopped thereby, nor by any judgment against him, upon these pleadings, from asserting his claim to an easement in the land.

The case of Rogers v. Sinsheimer, cited by the defendant, is based *30 upon a provision of statute (2 N. Y. Rev. St. 307, s. 30), that, in ejectment, the nature and extent of the plaintiff’s interest must be specified in the verdict.

Case discharged.

Stanley, J., did not sit.

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58 N.H. 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenniston-v-hannaford-nh-1876.

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