Blanchard v. Moulton

| Me. | Jul 1, 1873

Appleton, C. J.

This is an action on the case against the defendants for obstructing a way over which the plaintiffs claim the right of passage. It comes before the court on exceptions to the ruling of the presiding justice and on a motion to set aside the verdict as against law and evidence.

The obstruction of which the plaintiffs complained consisted in erecting a building upon the land over which the way passed.

The defendant asked this question of a witness: “What would be your judgment as to that being a suitable place for defendants’ office ?” The answer to this question was properly excluded. If the defendants had a right to make the erection, they were the judges of its suitableness, and whether suitable or not was no matter of concern to these plaintiffs. If they had no such right, 'its suitableness or convenience for their use, would give them no right , to erect it to the inconvenience of the plaintiffs. In either alternative the question was irrelevant.

The plaintiffs claimed the way as one of necessity, as well as by prescription. No exceptions are taken to the rule given as to ■what would constitute a way of necessity.

The parties to the suit are adjacent proprietors and near neighbors. The presiding justice instructed the jm-y that to establish a way by prescription, it must have been used prior to the erection of the building in controversy, by the plaintiffs and his grant- ■ ors, as.a way, .for a period of more than twenty years adversely ■.to.the interests of the owners of the land; that adverse user is nothing more than such an use of the property as the owner himself would exercise; and that when a party, in this manner and for the purposes of a way, has received no permission from the owner of the soil, and uses the way as the owner would use it, disregarding his claims entirely, using it as though he owned the property himself, that is an adverse user, and if he continue to use the property in that way for twenty years or more, he will have acquired a right equivalent to an actual grant of the right of way. These instructions are in accord with the rules of law on this subject. If further or more definite instructions were desired the defendants should have made specific requests therefor. It is not required of a judge that he should give the whole law on any given topic.

The exception to the instruction as to damages does not seem to be relied upon.

The facts were submitted to the jury. The question for their determination was clearly and accurately stated. There was much evidence on both sides. In such case it is no part of the duty of the court to interfere with the conclusions of the jury.

Motion and exceptions overruled.

Dickerson, Barrows, Daneorth and Virgin, JJ., concurred.