State Ex Rel. Borthwick v. Harrington

45 A. 404, 69 N.H. 496

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1898
• Status: Published

Opinion

Wallace, J.

A verdict will be directed when only one conclusion can fairly be drawn from the evidence and it is plain a different verdict would be set aside. Arnold v. Prout, 51 N. H. 587; Allen v. Railroad, ante, p. 271. The uncontradicted evidence clearly established the existence of the alleged illegal use of the premises. Upon that question there was no evidence which would support a verdict in favor of the defendants. This being so, there was no occasion to submit this question to a jury. As to the existence of the nuisance, a verdict should have been directed in favor of the plaintiffs.

The verdict on the second issue, that the landowners did not suffer or permit the illegal use of the premises, is not set aside, as there was evidence which warranted the submission of that question to the jury. The court sitting in equity, having submitted to the determination of a jury certain questions of fact, as it might where there is evidence to warrant such submission, under State v. Saunders, 66 N. H. 39, will dispose of this case in accordance with the principles enunciated in that case.

Verdict directed for the plaintiffs establishing the existence of the nuisance.

Exceptions sustained.

Pike and Peaslee, JJ., did not sit: the others concurred.