41 A. 856 | N.H. | 1898
One question presented is whether the plaintiff is entitled to relief under his bill in equity. He asks that the defendants be required to furnish him with a safe, suitable, convenient, and unobstructed way across their land to his. He claims that he once had access to his lands through certain highways which the defendants have induced the authorities to discontinue, and for that reason and because his land is wholly surrounded by the defendants', he is entitled to a way of necessity. The discontinuance of the highway by the proper authorities, even if induced or moved by the defendants, would give the plaintiff no right of way through the defendants' land, nor afford him any ground of relief in this proceeding. The correctness of the discontinuance proceedings cannot be attacked or inquired into collaterally in this way. State v. Kennedy,
The fact that the plaintiff's land is completely surrounded by the defendants' does not of itself give the plaintiff a way by necessity over their land. A way by necessity is founded on an implied grant. When a person grants land to which there is no right of way except over his own land, or retains land which inaccessible except over the land which he conveys, a right of way is presumed to have been granted or reserved. But without *388
a unity of ownership there will be no way of necessity. If there can ever be a parcel of land with no right of way to it, a conveyance of it will convey no right to pass over the adjoining, land of a stranger, however necessary it may be to the enjoyment of the land conveyed. The grantee could in that case, have no greater right than his grantor possessed. Proctor v. Hodgson, 10 Exch. 822; Kimball v. Railroad,
The plaintiff also asks that the defendants be compelled keep their animals upon their own land, and be restrained by injunction from permitting them to go upon his land. Although, equity will not interfere in the case of a trespass which is temporary in its nature and effect, and for which the legal remedy of an action at law is adequate, yet if the trespass is a continuous one or if repeated acts of wrong are done or threatened, although each act by itself may not be destructive or cause irreparable injury, and for which if it stood alone an action at law might be an adequate remedy, the entire wrong may be prevented or stopped by injunction, on the ground of preventing a multiplicity of suits and the inadequateness of the legal remedy. 3 Pom. Eq. Jur., s. 1357; 2 Beach Eq. Jur., s. 721; 2 Sto. Eq. Jur., s. 925; Coe v. Company,
In this view it is unnecessary to determine whether the plaintiff can maintain his writ of entry, or should have brought trespass. Equity having taken jurisdiction of the matter will settle it. The plaintiff can have any damages he is entitled to assessed at the trial term, and a writ of possession can be issued then if found necessary. Fowler v. Beckman,
Case discharged.
BLODGETT, J., did not sit: the others concurred. *390