Hoban v. Bucklin , 88 N.H. 73 ( 1936 )

One point of the motion is that the plaintiff's grantor could not by his deed transfer the benefit of his own use and enjoyment of the defendant's land and thereby enable the plaintiff to count the use as a part of the period required for the acquisition of prescriptive rights. The plaintiff's use was successive to, continuous with, and of the same kind as, his grantor's use. But it is claimed on the authority of Spaulding v. Abbott,55 N.H. 423, that no inchoate interests of a prescriptive character can be conveyed. Whether this case correctly states the present law upon the point, need not be determined. Privity between the parties existed, and that is the essential thing. It may be effected by any "conveyance, agreement, or understanding that has for its object a transfer of the possession and is accompanied by a transfer in fact." 2 C. J. 90, and cases cited. Other cases are cited in 35 L.R.A. N. S. 498, note. "When possession has been actually . . . transferred by the one in possession to his successor, the owner . . . is barred . . .", if the required period of adverse occupancy has run in continuity. Wishart v. McKnight,178 Mass. 356, 360. This view received implied approval in Locke v. Whitney,63 N.H. 597.

In the prior consideration of the case the differences in time of the erection of the plaintiff's structures, as affecting the right to maintain and use them, was not argued and no attention to them was directed. It was assumed that the right, as based upon time, was the same in respect to all of them.

Of the structures, one is the float or crib for diving. The trial court found that it "is not an obstruction to the defendant's right as a riparian owner, but is an obstruction to navigation." No exception to the finding was taken. The defendant had requested a finding that the float was an invasion of his special interest in the land forming the bed of the lake and adjoining his land along the shore. The finding was construed to amount to a denial of the request. It implied a finding of subsidiary facts necessary to support it in the absence of special findings showing otherwise. Spaulding v. Mayo, 81 N.H. 85, 86. The conclusion that the defendant has no private right affected by the float is affirmed.

The plaintiff's right to maintain and use the wharf is also affirmed. His grantor built and used it adversely to the landowner. With that use added to the plaintiff's, the prescriptive period has run. While the plaintiff's grantor acknowledged the public right, he exercised a claim hostile to the owner's right, and as to the owner, that is sufficient. The theory of prescriptive rights has an underlying conception of a presumed grant from the owner. "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." Smith v. Putnam,62 N.H. 369, 372. The owner is estopped to deny the grant unless he can show that the use has been under his accepted permission. If by the modern view the use has the effect of a grant without resort to the fiction of one, there remains the principle that a use adverse to the owner bars him without reference to a claim of right against everyone. The owner can no more claim against the tenant of the adverse user than against the adverse user himself. The tenant's acknowledgment of the user's superior title does not take away any defence against the owner which he would have if instead of being a tenant, he were the user.

The statute of limitations (P. L., c. 329, s. 1) is designed to quiet titles. The right of recovery is lost by its non-exercise for the prescribed period, under a policy, not to reward wrongful possession, but to enroot and stabilize long continued possession regardless of its character as rightful or wrongful. It is a matter between the owner and the user, with which others are not concerned. In analogy a use may be adverse to the owner although not to others. The case of Marshall v. Pierce,12 N.H. 127, cited by the defendant, does not conflict with this view. It decided that the evidence of adverse use was insufficient to prove it. The occupant "made no claim to the land in his own right." Here the plaintiff, as against the defendant, has claimed the right of use for himself, and, with the use by his grantor, for the prescribed period.

There are two boathouses. The time when the smaller one was built has not been found. If the plaintiff and his grantor together used it for twenty years in the same manner as the wharf, the plaintiff has the right to maintain and use it in its present location by the same measure of right that he may maintain and use the wharf in its location. If the period of use has been less than the prescriptive period, the rights in respect to it are the same as those relating to the boathouse adjacent to the wharf.

This latter boathouse was built in 1918. As a physical structure it has not been maintained and used for the necessary time.

The plaintiff claims that if the public has the right to use the shore for the exercise of public rights in the lake, anyone, as a member of the public, may erect structures at the shore and extending out upon or over the bed of the lake, or back upon the shore frontage, for the convenient exercise of his public rights in the lake. While the owner of shore rights, whether an individual or the public, has the right thus to erect structures, the right arises as an attribute of the shore ownership. Public ownership of the shore includes the right to erect structures; public right to use of the shore privately owned may or may not include it. But when the public has the right, no member of the public may exercise it without express grant from the public. One of the public may share in the exercise and enjoyment of the public rights, but not in any advantage over others. With no private rights, his public rights are only those which may be shared alike and in common by all members. If those first to come and erect structures were given the rights of shore owners, a process and course would follow leading to the exclusion of others from full and fair equality of enjoyment. It may be regarded that the basic idea is of reasonableness, but differences of permanent advantage and appropriation cannot be reasonable.

That the shore owner has rights incidental to the enjoyment of public rights in the lake and which are more extensive than those of one who is only a member of the public, is a settled matter of recognition in the law. "The principles out of which this usage sprang are common to both countries; namely, the exclusive right of access to the water over his banks, enjoyed by the riparian owner; his title to the soil gained from the sea by imperceptible accretion or alluvion . . . from which are necessarily deduced the doctrines that none but the riparian owner can erect such wharves and other conveniences for navigation . . ." Clement v. Burns,43 N.H. 609, 617. "The dictates of justice and reason, which retain in the government, for common use, the fee of large ponds, . . . have vested a reasonable private right of using this public property in the owners of the adjoining land." Concord c. Company v. Robertson, 66 N.H. 1, 18. "As the owner of the adjoining land, the plaintiff had the right to build wharves and other structures into the pond for his own use," without unreasonable interference with the public rights. Dolbeer v. Company, 72 N.H. 562, 565.

Since the plaintiff's structures may not be maintained under a right of the public to the use of the shore, there continues to be no occasion to decide whether the public has such right.

As to the plaintiff's right to erect structures under his private right to the use of the shore, a prescriptive easement is measured by the extent to which it was exercised at the beginning of the period of the prescription and has since been maintained. The full period must run for any new burden or material increase of the original burden. Simpson v. Coe,4 N.H. 301; Burnham v. Kempton, 44 N.H. 78, 90; Gilford v. Company,52 N.H. 262; Griffin v. Bartlett, 55 N.H. 119; Abbott v. Butler,59 N.H. 317, 318; 19 C. J. 967; 9 R. C. L. 790. "The acts of user, although not required to be unintermittent, must be of such a nature and of such frequency as to give notice to the landowner that the right is being claimed against him . . . One test question is, Has the land-owner had reasonable cause, from the actual use made of his land, to believe, during the entire period of twenty years, that the right was being claimed against him?" Gilford v. Company, supra, 266, 267. "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." Smith v. Putnam, 62 N.H. 369, 372, affirmed in Wason v. Nashua,85 N.H. 192, 198.

The rule parallels that of an easement actually granted. The grant determines the extent. Warden v. Balch, 59 N.H. 468. But "the terms of the grant cannot be enlarged beyond their natural meaning" (Abbott v. Butler, supra, 318; Sakansky v. Wein, 86 N.H. 337), and the terms of a prescription are those which the use for the required period indicates.

Under this test the plaintiff has acquired no prescriptive title to the structures used adversely less than twenty years. They are a material increase of the original burden, and more than an additional detail. Retaining ownership, the defendant suffers a substantial increase in the disturbance of his property by the structures. The owner from the beginning was chargeable with notice of the adverse use of the shore in connection with the enjoyment of public rights in the lake as an incident of the enterprise of a boys' camp. But use of the shore therefor was limited to that had and enjoyed. The plaintiff claims no ownership by adverse possession, but merely easement. The use did not extend to the exclusion of the owner. As a use incidental to public rights in the lake, it did not go beyond the actual use. It was not a use in every available manner, but was such as was made in fact.

If all the rights of a shore owner to enhance the enjoyment of the public rights in the lake were claimed, yet only to the extent of their exercise was there notice of the claim. Not until the structures were erected was the claim of right to maintain them openly asserted. The difference in the owner's rights on his land and in his special rights upon or over the bed of the lake adjoining his land is one of practical reality, and use of the land did not fairly indicate use of the special rights. Actual use involves physical conduct, of which there must be some demonstration to the owner. While actual use may be greater or less according to the purpose of the use, the notice of the extent of the purpose must be indicated. If it could reasonably be found that an occupancy for the purpose of erecting the structures existed prior to their erection, yet a finding of notice of such an occupancy would have no evidentiary support. Under the analogy of a lost deed it cannot be said that the owner granted the right to erect structures when he granted the right to use the shore as one of the public might. The initial use of the plaintiff's grantor indicated no greater extent of use.

Nor was the erection and use of the wharf an open exercise of a claim of right to erect and use other structures. Occupancy of the land beneath it did not constitute occupancy of the sites of the structures later erected. Beyond the extent of physical invasion there was no entry upon or interference with the special shore rights of the owner. It may not reasonably be asserted that the right to erect a structure, as an easement gained by prescription, can commence its period of acquisition before its erection when there is nothing to show that its site has been appropriated and taken for the purpose.

The former opinion is affirmed except as hereby modified.

Case discharged.

All concurred.