32 N.H. 316 | N.H. | 1855
Had this case been submitted to the jury under the charge of the court as to the law, several questions might have arisen which would, perhaps, have become necessary for us to decide. For instance, whether any right of way existed to lot 54, independent of the grant to John Phelps, in 1811, to the quarter acre; whether the grant was limited to John Phelps; whether the alteration in the way in 1830 or 1831, was made under such circumstances as to become a substitute for that part formerly used; and whether there was any right to use the way for driving sheep. These and other questions might have arisen. But as the case stands, the cause not having been submitted to the jury, and the facts being in dispute, we do not propose to discuss either of these questions.
There is one ground, however, which appears to us to settle the present action, whatever might be the finding of the jury or the conclusions of the court upon the other points.
There is no pretence of any right of way of any kind having been acquired by any one beyond and east of lot 54 ; the Bean lot, the Brown lot and Sheafe lots lying east and south of 54, and adjoining thereto, were acquired by the plaintiff in 1847 and 1848, and this suit was commenced in 1849.
It is well settled that if a person have a right of way over another’s land to a particular close, he cannot enlarge it and extend it to other closes. Com. Dig., Title Chimin, D. 5 ; Woolrych on Ways 34; Senhouse v. Christian, 1 Term 569 ; Howell v. King, 1 Mod. 190 ; Bac. Abr., Highway, C.; Davenport v. Lamson, 21 Pick. 72 ; Comstock v. Van Deusen, 5 Pick. 166.
In Davenport v. Lamson, the plaintiff brought trespass against
The doctrine of the books upon this question is” undoubtedly sound. If a right of way to one lot can be extended at will, by the tenant, to another lot that may adjoin it, then may it be extended to a third, and so on to any limits that the tenant may choose.
Admitting, then, for the purposes of this decision, and for that only, that the defendant had a right of way to lot 54, to the extent and in the manner claimed by him, and still he cannot sustain this action, for he was undoubtedly in the wrong in attempting to cross the defendant’s close to go upon the Brown or Sheafe lot.
The case finds that, at the time of the alleged assault, the plaintiff was going to what he called his “ Mountain pasture,” which consisted’of the three lots, the Bean, the Sheafe and the Brown lot, to salt his sheep, and that he actually went and called Ms sheep together in the South pasture, which, in that year, was formed by a part of the Bean lot and the Sheafe lot, there being no fence between these lots ; it appearing, also, that the sheep generally ran in the Brown and Sheafe lots.
We do not see how this ease can be distinguished in principle from that of Davenport v. Lamson, nor indeed from the general doctrine upon the subject; and sufficient matters are stated in the case as facts to settle this question without submitting it to the jury.
It does not relieve the plaintiff that the defendant did not resist his passing, on the ground that he was going to lots beyond the Bean lot. No doubt both parties understood the object of the plaintiff, but the defendant was not obliged to state the reasons why he objected. If he was in the wrong, he was answerable ; and if in the right, he was not called upon -to show his reason. It was quite as incumbent on the plaintiff to state that he was not going to the Mountain pasture, as for-the defendant to object to his using the way on that ground;
The fact, also, that the defendant had permitted the sheep to be driven over the way to the pasture about a week before, and that he had been paid for it, does not aid the plaintiff. His going there under those circumstances gave him no right to pass over the way on the day of the trespass, nor had this fact any tendency to show a right.
The court ordered a verdict for the defendant; and upon the question which we have considered, we think they were right, and there must be
Judgment on the verdict.
Pekley, C. J., having been of counsel, did not sit.