62 N.H. 532 | N.H. | 1883
The condition limiting the use of the lot was an incumbrance (Foster v. Foster,
The incumbrance in this case is not contingent. The right of the Amoskeag Company, by forfeiture or otherwise, to prevent the unauthorized use of the plaintiff's lot, began in 1873, and if it lessens the market value of the land he is entitled to indemnity. Kellogg v. Malin,
But as the company have never complained of any of the numerous breaches of the same condition imposed by them in the sale of lots, there may be reason to believe they will not insist upon its observance in any case; and this circumstance may materially affect the market value of the encumbered lots. The damage sustained by the plaintiff in his loss of market value may be less than it would have been if the company had exercised their right of forfeiture in similar cases, or had taken some efficient course to secure a compliance with the restriction in many cases, or even in a single instance. The depreciating effect of the incumbrance may depend, to some extent, upon the opinion entertained by purchasers of the probability of the company's exercising or maintaining their right, as it would if the incumbrance were a right of way. In forming an opinion on the subject, purchasers would naturally consider the significant fact that although the condition has been generally violated (during the last fifteen years it has been violated in eighty-four out of one hundred and four cases on the street on which the plaintiff's lot is situate), the company have in no case manifested an intention to enforce the incumbrance. This is one of the facts that would influence bidders at an auction of the plaintiff's defective title. It is evidence of the market value of that title, and the rejection of such evidence, offered by the defendant on the question of damages, was error.
The defendant contends that the company are estopped to assert the existence of the incumbrance. If the plaintiff should prevail on this issue, and obtain a verdict for substantial damages, he would not thereby be precluded from maintaining the same defence in a writ of entry brought against him by the company. And if this defence should be successful in this case, he might nevertheless lose the land by the verdict of another jury on the same issue between him and the company. By an amendment and notice the company should be made a party to this suit, and on *535 this question there should be a trial and judgment by which the three parties will be bound.
Verdict set aside.
ALLEN, J., did not sit: the others concurred.