81 A. 701 | N.H. | 1911
The plaintiff's position, as we understand it, may be stated thus: The uncovered ditch which the defendant maintains by the side of the highway renders the approach from the highway to the adjoining landowner's premises dangerous and unreasonably inconvenient, and as to the landowner constitutes a private nuisance; the plaintiff at the time of his injury was the landowner's licensee for the purpose of traveling upon his private way; from these premises he deduces the conclusion that in the right of the owner he is entitled to maintain this action for the recovery of the damages he suffered from the alleged nuisance. He argues that if the owner of the abutting land could recover damages caused by the uncovered ditch, he has the same right under his license from the owner. But the fallacy of the argument consists in the assumption that his license to travel over the owner's private way gave him the rights of an owner of the land with respect to nuisances maintained upon adjoining land.
Under the law of this state, the ownership of land does not include the right to an unreasonable use of it which deprives an adjoining owner of the reasonable enjoyment of his land. The rights of adjoining proprietors of land are reciprocal and are determinable by the doctrine of reasonable user. "The doctrines of reasonable necessity, reasonable care, and reasonable use prevail in this state in a liberal form, on a broad basis of general principle." Haley v. Colcord,
Though the question thus presented is somewhat novel, it has claimed the attention of the courts in a few cases. In Ellis v. Railroad,
"We have found no case where a private action has been maintained for corruption of the air by offensive odors, except by a plaintiff who was the owner of or had some legal interest, as lessee or nuisance." Kavanagh v. Barber,
These cases are criticised in Thompson v. Railway,
The cases cited by the plaintiff (Paul v. Hazleton,
If instead of being thrown from his carriage and injured, as alleged, the plaintiff in attempting to pass from the private way to the highway had observed the dangerous condition of the ditch and had been put to some inconvenience in passing over it, or had come to the conclusion that the town was maintaining a nuisance at that place with reference to the use of the private way, would it be contended that, because he was upon the way by the permission of the owner, he was entitled to maintain a suit for this invasion of the owners' right of property? The mere fact that his damages might be small or nominal would not deprive him of the right, if he had it. Nor does the fact that he suffered serious injury have the effect of giving him the right. If anybody's right has been infringed, it is the landowner's right to the reasonable enjoyment of his property; and this is a right which he could not confer upon another without investing him with the title or the right to the possession of the land or some part of it. The plaintiff's rights with reference to the nuisance were not greater after he got permission to use the private way than they were before. The existence of the private way was presumably an invitation to all persons to use it for proper purposes, but it did not invest them, when so using it, with a proprietary right in the land; one sufficient reason being that the parties did not intend it should have that effect. If the landowner had had the same experience in crossing the ditch that the plaintiff had, his action would be based upon the defendant's infringement of his right to the reasonable enjoyment of his land. After showing the fact of his lawful occupation of the land as an owner or tenant and the injury to his reasonable enjoyment of the land by the defendant in permitting the nuisance to exist, his right to redress would be established. But in the absence of proof of such facts he would fail in his suit, however great his injuries might be. Wood Nuis., s. 853. Whether the facts of the particular case would sustain an action for negligence is a different and immaterial question in determining the plaintiff's right to recover for a nuisance affecting the reasonable enjoyment of the possession of real estate. So far as the plaintiff's declaration is based on his right as a mere licensee of the owner, the demurrer thereto must be sustained; and it would seem that he *234
could not recover as a traveler on the highway for the defendant's alleged negligence in suffering the uncovered ditch to exist. Drew v. Bow,
Case discharged.
All concurred.