105 A. 411 | N.H. | 1918
The plaintiff's position, that the deed to Coe Pingree conveyed to them merely an easement in gross to maintain a boom or booms in the river opposite his land for the purpose of floating logs, and consequently that it was not assignable, cannot be sustained. As the right was expressly granted to them "their heirs and assigns forever" and as it was not otherwise limited or modified by other language in the deed, no argument is required in support of the proposition, that the parties to the deed understood it conveyed an inheritable and assignable right. The grantor's intention thus clearly shown must be given effect (Fowler v. Kent,
The case of Engel v. Ayer,
If the deed had purported in terms to grant to the defendant its successors and assigns the right to erect in the river a stone structure or building for some useful purpose, no reasonable doubt could be entertained that an assignable interest would pass. It would be an interest in real estate and not a mere privilege personal to the grantee. For the same reason the defendant's right to maintain booms in the river supported or held together by piers is an interest in real estate which was conveyed to it by the deed of Coe Pingree. This position is sustained by many authorities, some of which are the following: Goodrich v. Burbank, 12 Allen, 459; Amidon v. Harris,
The contention of the plaintiff that there was no evidence that the erection of piers in the river was reasonably necessary for the proper enjoyment of the right conveyed and that that fact cannot be inferred in the absence of direct evidence of its existence, is a question not presented by the case. The evidence is not reported and, in such situation, the presumption is that the court's charge was based upon sufficient evidence. Rowell v. Chase,
During the cross-examination of the plaintiff he stated in substance that a photograph shown him represented his meadow and the river *120
which had overflowed the land, that no piers were represented in it, and that he did not know when the picture was taken. Subject to exception, the photograph was admitted in evidence. If it tended to prove, as the defendant contended, that in times of high water the plaintiff's land was overflowed when there were no piers in the river, it might be material evidence for the defendant on the issue whether the piers caused the overflow. Whether it represented a condition of the river at a period too remote or too indefinite to be of use to the jury was a preliminary question of discretion for the court to determine, which does not appear to have been improperly exercised. Pritchard v. Atkinson,
The plaintiff also excepted to the exclusion of evidence which it is conceded might have been excluded on the ground of remoteness. The case does not show whether it was excluded as a matter of law or as a matter of discretion. Under such circumstances the exception presents no question of law. Union Hosiery Co. v. Hodgson,
Exceptions overruled: judgment on the verdict.
All concurred.