Farwell v. Railroad , 72 N.H. 335 ( 1903 )

If the owner of land severed by a railroad and the proprietors of the railroad are not agreed upon the place, number, or kind of cattle-passes required for the owner's accommodation, the railroad commissioners have jurisdiction of the question and may determine it upon the application of either party, after notice and a hearing. P. S., c. 159, s. 19. If the proprietors of a railroad or any other party wrongfully obstruct a pass already provided in accordance with an agreement or an order of the railroad commissioners, the cause of action falls within the general jurisdiction conferred upon the court by section 4, chapter 204, Public Statutes. Costello v. Railway, 70 N.H. 403. The present action is of the latter kind; the plaintiff sues for damages resulting from the wrongful obstruction of a pass already existing. The continuance of the pass from 1849 until some time in the eighties is evidence that a right to the pass was legally established originally. Costello v. Railway, supra. The action cannot be abated for want of jurisdiction.

The defendants further say that the right to the pass was abandoned by the owners of the farm, and also that the plaintiff is estopped by his conduct from asserting the right. Their exceptions to the denial of their motions for a nonsuit and for the direction of a verdict in their favor raise the question whether the facts reported constitute an abandonment or an estoppel as a matter of law. The closing of the pass with fence rails by a tenant does not conclusively prove an intent on the part of the owner of the land to relinquish his right. The act is consistent with a temporary use of the adjoining land that does not require use of the pass. The same is true of the defendants' act in putting a wire fence on the lines of their right of way. Such obstruction could be readily removed whenever the owner of the land had occasion to use the pass. The fact that the owner suffered the fence to be built and maintained without objection, if it be a fact, has, to say the least, quite as great tendency to prove a temporary suspension of his use of the pass as it has to prove an intention to abandon his right altogether. As to the estoppel, even if the plaintiff knew that the pass was being filled when it was done, which seems doubtful from the report, it does not appear that the defendants did not have as full and accurate knowledge of all the facts bearing on the question of the landowner's right to the pass as the plaintiff had, or that they changed their course of conduct or were misled in any way in consequence of the plaintiff's silence. Clark v. Parsons, 69 N.H. 147, and authorities there cited. Whether the plaintiff's objection to the continuance of the obstruction was seasonably made is also a question of fact. Odlin v. Gove, 41 N.H. 465. The defendants' motions were properly denied.

Exceptions overruled.

All concurred.