Smith v. Putnam , 62 N.H. 369 ( 1882 )

The evidence that the plaintiff and those under whom he claimed had used the driveway and well for more than fifty years with the knowledge of the defendant and her grantors, openly, continuously, uninterruptedly, and unquestioned, was sufficient, in the absence of any evidence tending to show that the use was permissive, to warrant the finding of the court that the plaintiff had acquired the right. Proof of twenty years' adverse, continuous, uninterrupted use, with the knowledge and acquiescence of the owner of the land, in the absence of any evidence of permission or license, is sufficient to establish the presumption of a grant. And there need not be a claim of right in words, or a declaration that the use is adverse, or an admission on the part of the landowner that he has knowledge of the adverse use and claim of right. The nature of the use and the knowledge of the land-owner may be inferred from the manner, character, and frequency of the exercise of the right and the situation of the parties; and where an actual, uninterrupted use and enjoyment, as of right, with knowledge of the other party, is shown to have existed a sufficient length of time to create the presumption of a grant, the presumption stands as sufficient proof and establishes the grant, unless it is rebutted by proof that the use and enjoyment were permissive. Gilford v. Lake Co., 52 N.H. 262, 267; Wallace v. Fletcher, 30 N.H. 434; Watkins v. Peck, 13 N.H. 360, 371; Blake v. Everett, 1 Allen 248; Barnes v. Haynes, 13 Gray 188. It is unnecessary to consider the objection that the plaintiff cannot have a prescriptive right of way over the public highway, because, if the obstructions were in the highway, it is unnecessary for the plaintiff to show a private right of way in order to maintain his actions. If the fence which obstructed the plaintiff's driveway and excluded him from the well was built by the defendants in the public highway it was such an obstruction as constituted a nuisance, and inasmuch as the injury caused by it to the plaintiff was special and peculiar to him, and not such as was common to all persons using the highway, the plaintiff can maintain a private action for damages and for the abatement of the nuisance. Brown v. Watson, 47 Me. 161; Brayton v. Fall River, 113 Mass. 218.

The testimony of E. H. Smith, "that he asked permission of Chandler to take water from the well and did not ask permission of any one on the Morrison property;" of S.E. Marston, "that Chandler told him the well and driveway belonged to the place, and that his grandfather dog the well and owned it;" of D. G. York, "that Marston told him in 1876, when he bought the place of him, that he owned the well;" and of James H. Plaisted, "that Nathaniel Chandler told him, when getting water from the well, that his grandfather dug the well for the benefit of his blacksmith-shop and dwelling-house," — was competent as tending to show the character of the use of the well by the plaintiff's grantors and that it was such as to give notice that it was under a claim of right. Bell v. Woodward, 46 N.H. 315,335. The testimony of S. B. Chandler, who had lived on the plaintiff's premises seventeen years prior to 1845, "that so far as he knew, the persons living on the Chandler place always claimed the right to the full, free, and uninterrupted use and enjoyment of the well," and that "there was always an open driveway, free and uninterrupted to the public," was not matter of opinion but a statement of material facts, and therefore it was competent. Leach v. Bancroft, 61 N.H. 411.

The objection to the maintenance of the bill in equity is obviated by the finding of the court in the action at law. The plaintiff's right being established in the action at law against all the defendants. a proper case is presented for the interference of a court of equity by injunction, for the protection of the plaintiff in the enjoyment of his rights.

Exceptions overruled.

SMITH, J., did not sit: the others concurred.