43 N.H. 328 | N.H. | 1861
The mill owner claims by prescription the right to flow the plaintiff’s land as he has done; and one question is, whether the acceptance of a lease from the plaintiff' by a former owner of the mil-1 under whom the defendant claims, of the right so to flow the plaintiff’s meadow, is in law an estoppel; the lease being for five years, and at a period after the right by prescription is claimed to have been acquired.
The court instructed the jury that this lease estopped the defendant’s grantor only during the term, and declined to instruct them that he could not claim a light to flow the meadow by virtue of any title of an earlier date.
This view of the court we consider to be correct. In Co. Litt. 47 (b), it is laid down, that “ if a man take a lease for years of his own land by deed indented, the estoppel doth not continue after the term ended. For by the taking of the lease the estoppel doth grow, and consequently, by the end of the lease the estoppel determines ;” citing 38 H. 6, 24; 30 E. 3, 21. But if estopped by matter of record, as by fine, &c., it continues after. 38 H. 6, 24; 30 E. 3, 21, note 13. This is precisely in point, and is recognized fully in Carpenter v. Thompson, 3 N. H. 204, by Richardson, C. J., where it was held that the lessee is estopped only during the term to deny the title of the lessor; and here, as in Co. Litt. 47 (b), the attempt was to set up the estoppel against a preexisting title in the lessee. Jones’ Case, Moore 181, is also in point; so is Croke Eliz. 36; and Com. Dig., Estoppel F.
In Taylor on Landlord and Tenant (secs. 88, 89), it is said that, an estoppel can not operate after the estate determined; for it begins by, and, therefore, terminates with the lease. See cases cited. Also, 1 Greenl. Ev., sec. 25; and England v. Slade, 4 T. R. 682.
In the case of Carpenter v. Thompson, the lease was of “ all the land and buildings which the lessor held from M. T. Thompson by deed bearing date the 20th March, 1813”; and it was claimed that this was good to show title in the lessor from Thompson, by way of recital.
The court do not give any opinion on that point, but say, that however this maybe, the estoppel, if any, is set at large by another, that is, a subsequent deed, from lessor to Thompson.
But there is no such question here; the lease only granting the right of flowing the meadow land belonging to the lessor, situated, &c., without any assertion of title to the flowage beyond what is implied in the paere act of leasing; and this, as we have seen, is not sufficient.
The general doctrine of Carpenter v. Thompson, is recognized in Gray v. Johnson, 14 N. H. 414-421; Russell v. Fabyan, 27 N. H. 529-537, and cases. The language of Eastman, J., in the latter case is, that he will be estopped during the term.
As to the written instructions on the subject of Marshall’s testimony, we think there was no error. The bearing that it might have, as matter of law, upon the different views which were suggested, was correctly stated; and even if still another view, as stated by the plaintiff’s counsel, might have been taken, the omission to do so would not, we think, be cause for disturbing the verdict. There might be cases where the omission of the judge to call the attention of the jury to a particular view of the ease, might prejudice one of the parties; and, under some circumstances, especially where the instructions were given in writing in the absence of the parties, with no opportunity to ask fui’ther instructions, it might be of such character as to justify the setting aside of the verdict.
But such is not the case before us. Beside, those instructions appear to be but a repetition of the charge in open court; and so there was an opportunity to ask attention to the other view. And there must be, therefore,
Judgment on the verdict.
