Chamberlain v. Enfield

43 N.H. 356 | N.H. | 1861

Sargent, J.

It is objected that the evidence in relation to the right of way over the land in question, offered by the plaintiff, was improperly admitted. The defendant’s position was that Johnson made a reasonable and proper use of his land by the side of the highway. To meet this the plaintiff introduced evidence, without objection, that Johnson claimed other lands near by on which he might have placed his lumber without using the highway. In reply, the defendant showed that another man niade claim to a part of this land, for a way to his building. w ,

Now it might have been a very good reason why Johnson should not entirely block up this passage way by piling his lumber there, that the title was in dispute, and that another man claimed the right to use it as a way. The evidence on both sides was only of claim and occupancy. No title deeds were introduced on either side, and for aught that appears the claim of the other man was as good and valid as Johnson’s; and the evidence was properly admitted to rebut that introduced by the plaintiff.

The evidence of the skittishness of the plaintiff’s horse' after the accident, was, also, properly admitted, under the circumstances of the case, and with the instructions given to the jury in connection with it. The time alluded to in the evidence was only some six or eight months after the accident, and it may be safely laid down as a general rule (having its exceptions no doubt), that neither horses nor men entirely change their characters, their habits, or their manners, in that space of time.

The evidence in regard to the habits of the horse is not necessarily confined to the precise time in question, any more than it would be if the question were in regard to the value of the same horse at a given time; in which case, evidence of the price paid for similar horses, both before and after, may be competent; and so whether such sales were at the place in question or in some other place in the vicinity. Cross v. Wilkins, 43 N. H. 332, and cases cited; Dewey v. Williams, 43 N. H. 384. It was clearly within the' discretion of the court at the trial to admit this evidence.

It is also objected, that the instructions to the jury, that if Johnson was at the time making such use of the road as was reasonable and proper, under all the circumstances, it would be no obstruction, in the meaning of the statute, were erroneous, and that the word “ necessary” should have been substituted for “ reasonable.” It is claimed that the decision in Winship v. Enfield, establishes the rule as claimed by the plaintiff. But we do not so understand that decision. In that case the court were requested to instruct the jury, “ that if the use of the road thus made by the owner of the wood was necessary and proper, under all the circumstances, tbe town was not liable even though the jury should find that the horse was frightened at the wood, unless some other defect in the road for which the town was chargeable conduced to the accident.” The court declined to give the instruction, and the refusal was held to be erroneous. This was the only point raised or decided upon that part of the case. The question whether, if the use had been reasonable and proper, it would be justifiable, did not arise and was not decided. In fact, in making our examinations in that case we became convinced that the rule, upon the authorities, should properly he as, given in the instructions in the case at bar.

In Graves v. Shattuck, 35 N. H. 265, the court say that highways may be used for other purposes than the public travel, provided such use is not inconsistent with the reasonably free passage of whoever has occasion to travel upon them. And again, the plaintiff was guilty of no nuisance in moving his building through the streets of Nashua provided he selected suitable streets, used proper expedition, and was in the reasonable use of such streets, &c.

In Attorney General v. Gas Consumers’ Co., 19 E. L. & E. 639, the Lord Chancellor, in delivering the opinion, remarked, “If I were to station a cart in the street opposite my door, obstructing my door, obstructing the public highway, I might be guilty of a nuisance, for aught I know, and I might be liable to be indicted; but it would be a sufficient answer to say, that the cart was there only a reasonable time and for a lawful purpose.” And after enumerating other examples, he says, “All these cases of nuisance or no nuisance, arising from particular acts, must, from the nature of things, be governed by particular circumstances. You must be guided by particular circumstances; you must look at the particular place or object the parties have in view. I take it that all these questions are of this nature: Are you using the subject matter of injury in a reasonable way, and are these the uses for which it was contemplated ?”

In Commonwealth v. Passmore, 1 Serg. & Raw. 219, which was an indictment for a nuisance in placing goods in the street, and suffering them to remain there for the purposes of sale, the court say, “It is true that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough that it is reasonable. No man has a right to throw wood or stones into the street at his pleasure; but inasmuch as fuel is necessary, a man may throw wood into the street for the pui’pose of having it carried to his house, and it may lay there a reasonable time. So, because building is necessary, stone, bricks, lime, sand, and other materials, may be placed in the street, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street, for the purpose of removing them to his store in a reasonable time; but he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it.” Or, in other words, such use would be unreasonable.

Now, if the rule in the case at bar had been laid down as requested by the plaintiff, it would have been the duty of the court to have explained the sense in which the word “necessary” was used, as was done in the case last cited; to wit, not an absolute, but a reasonable necessity; and this would in no way have differed in effect and substance from the instructions that were given, that the use must be reasonable and proper; and in considering whether it were so or not, the jury must consider “ what occasion, need, or necessity, the owner of the laud had for such use of the land.”

So in Underwood v. Carney, 1 Cush. 292, the court said, “The defendants have a l’ight to make a reasonable use of the way adjoining their land.” Olinda v. Lothrop, 21 Pick. 292.

Several of the cases above cited contain dicta which go to the full extent of the instructions given in this case in relation to the general usage of this way by others being competent evidence upon the question of reasonable use. But we think the doctrine has never been carried to that extent in this State, and we doubt whether evidence of that kind would have been competent if offered. But it appears that no evidence of this kind was introduced or offered, and therefore the question does not arise here.

The instructions asked for, that if the plaintiff, not otherwise in fault, was driving a skittish horse which would go along safely in an unincumbered highway, and the town suffered a pile of lumber to remain -within the limits of the highway, &c., was only, in other words, asking the court to say what should constitute an incumbrance. The jury have found either that the plaintiff was in fault, or that the way was in all respects unincumbered, under the instructions given. So in the last instructions requested, it was simply asking the court to define and decide that a given state of facts would constitute an incumbrance in the highway. But the court had already instructed the jury that it was a question of fact for them to settle, whether the road was incumbered or not; and these instructions -were proper. Johnson v. Haverhill, 35 N. H. 74; Hubbard v. Concord, 35 N. H. 65; Carleton v. Bath, 22 N. H. 559; Graves v. Shattuck, 35 N. H. 258.

The court was requested to instruct the jury, that “although it might have been reasonable and proper to use the highway to place the lumber in, as it was placed, and to use it to overhaul the lumber in, as Johnson did, still if the lumber fell down in consequence of any negligence of those who were handling it over, and the fall was calculated to frighten horses, the jury would be justified in finding that the highway was incumbered.”

The court had instructed the jury, that if on that day, and at the time of the accident, in consequence of such use as was made of it, the lumber became an incumbrance by being likely to frighten horses, or otherwise, &c., the town would be liable. Now the instructions given covered all the ground of those desired, and more; whether the use was rightful or wrongful, careful or negligent, whatever may have been its character, still, if in consequence of the use that was then being made of it, the lumber became an incumbrance in any way, and the plaintiff’s horse was frightened at it, &c., the town would be liable.

The case abundantly shows that the lumber fell down in consequence of the use that was then being made of it, whether that use was negligent or otherwise. The word use, in its ordinary and legal signification, includes the wrongful and negligent using or enjoying a thing, as well as the opposite. See remarks under the maxim sic utere tuo. &c. Broom’s Leg. Max. 160.

If these men by their negligence have caused the plaintiff an injury, they may be liable to him, whether they were in the highway or out of it; but if the highway wTas in no way incumbered or obstructed, the town would not be be liable for their negligence.

The only objection to the instructions as given is, that they were too favorable to the plaintiff’. The instructions given would make the town liable, provided the lumber, not being a nuisance before, had become so by the use that was being made of it at the time of the accident, in which case the town could not probably have known of its existence; or, if they had known of it, could not have prevented it, or removed it in season to have prevented the accident, and were in no fault whatever for its existence or continuance.

But it is now settled, that when the immediate cause of the accident and injury to the plaintiff is such that the town could not have had notice of it, or could not have prevented or remedied it before the accident, it can not be held liable; and that it makes no difference whether' the injury was thus caused by the act of Providence, by inevitable accident, or by the negligent or malicious act of man, or by all these combined. Palmer v. Portsmouth, 43 N. H. 265. But the plaintiff can not object that the ruling was too strongly in his favor.

Judgment on the verdict.