Manchester v. Hodge

71 A. 864, 75 N.H. 166, 1909 N.H. LEXIS 4

• Court: Supreme Court of New Hampshire
• Decided: January 5, 1909
• Status: Published

Opinion

Bingham, J.

The defendants, as abutting owners upon Willow street, have no right to use the half of the street adjacent to the cemetery for any purpose other than travel, and no right to use the other half of the street except for the purpose of travel and such other purposes as are not inconsistent or incompatible with its reasonably free use as a way by the city in going to and from the cemetery. Graves v. Shattuck, 35 N. H. 257; Low v. Streeter, 66 N. H. 36; Ladd v. Brick Co., 68 N. H. 185; Jewell v. Clement, 69 N. H. 133; Tudor Ice Co. v. Cunningham, 8 Allen 139; Welch v. Wilcox, 101 Mass. 162; Williams v. Clark, 140 Mass. 238.

It is found that the defendants have so enclosed and incumbered the street as to prevent all travel upon it. This means, as we understand it, that the defendants not only use the half of the street adjacent to the cemetery for purposes other than travel, but so use the half adjacent to their own premises as to wholly exclude the city from its use, and is equivalent to a finding that the use made by the defendants is inconsistent with the reasonably free use of the street as a way to the cemetery. Therefore, as the case stands the plaintiffs’ motion should be granted and an injunction issue accordingly.

Case discharged.

All concurred.