Wheeler v. Rowell

6 N.H. 215

• Court: Superior Court of New Hampshire
• Decided: July 15, 1833
• Status: Published

Opinion

By the court

*

We are of opinion, that the jury were misdirected in the court below, in this case.

It is, without doubt, necessary, in trespass, qvare clau-sum fregit, to prove the abuttals of the close as stated. 5 N. H. Reports, 322; 2 Rolle’s Ab. 677; Yelverton, 114, Winkworth vs. Man: 1 Moore, 161, Taylor vs Hoomun, 3 Starkie’s Ev. 1435; 1 Chitty’s Pl. 363—364; Buller’s N. P. 89.

This was clone substantially in this case. For although the close was not abutted all along on the southerly side, by land of Vespasian Wheeler ; yet, still it was abutted southerly on his land, and this was enough to satisfy the description. Abuttals are not to be construed strictly. The description of the close as abutting on Wheeler’s land did not imply that it was abutting there all along on Wheeler’s close. 1 Taunton, 497.

Judgment reversed.

Parker, J. having been of Comise), did not sit.