| N.H. | Jun 15, 1872
It is tobe understood that the way claimed by the plaintiff, as described in the second and third counts of her declaration, has been covered and obstructed by the eight feet addition built on to the rear of the defendant’s store; and the question presented by the case is, whether there was competent evidence offered at the trial, from which the jury could have legally found a right of way in favor of the plaintiff located in that place.
The plaintiff's counsel, in his brief, admits that the express grant of a way contained in the original deed, under which the plaintiff derives her title to number six, would be satisfied so long as the defendant left a convenient and suitable passage-way; which is, beyond doubt, correct.
But he says the evidence shows that the user has been of much more, and that, being inconsistent with the grant, it cannot be supposed to have been under it. In other words, he says that a grant is to be presumed from the evidence of twenty years’ use, materially different from the grant that was actually made when the deed from Waldron to Palmer was executed, July 29, 1833.
This position cannot be sustained. The grant was of a right of passage-way from Chapel street to the rear of the store. The evidence showed a use of the way in near conformity, to say the least, with the terms of the deed. That other portions of the lot were used for teams to stand upon, or for turning teams, is of jno consequence. Whether an easement, or any right, has been gained by prescription or adverse possession, outside the right of passage-way from Chapel street to the back of the store, is not a matter now before us. The suit is to recover damage for obstructing the passage-way.
Now, the continued use of the way was authorized by the deed. The owners of the defendant’s estate had no right to object to it. The introduction of the deed, therefore, explains the use, and rebuts any presumption that might otherwise arise from it. The use being substantially in accordance with the grant, it is quite elementary that it must be held to be under the grant. 2 Greenl. Ev., sec. 545; Rex v. Hudson, 2 Str. 909; Addington v. Clode, 2 W. Bl. 989; Atkins v.
The acquiescence of the defendant or his grantors for any length of time in the use of a particular pathway is, under the circumstances, of no significance; for the moment the deed comes in, that instrument explains, limits, and controls the effect of such acquiescence. It shows conclusively that the acquiescence of the defendant and his grantors was the exercise of the right conveyed by the deed; and that was nothing more, at the outside, than the right to a convenient passage-way from some undefined point on Chapel street to the back of the store.
There is nothing in the case to show that until the defendant had occasion to use some part of the vacant land in the rear of his store it made any difference to him where the travel passed. It therefore does not appear that there was any call whatever upon him to interfere, or even to object to the use of one part of the lot more than another; hence, as before remarked, his silence has no significance, and no tendency to show an agreement on his part that the way should be located in one place rather than another.
We are therefore of opinion that the court did not err in ruling that, upon the evidence, the plaintiff was not entitled to a way fixed on any particular line from Chapel street to the place where the back door of the store on number six was in 1833, and that the evidence did not entitle the plaintiff to recover for obstruction of a way, if the way left by the defendant in the rear of his store was such as was reasonably suitable, convenient, sufficient, and necessary for the purposes for which the right of passage was granted. The jury found this fact to be so, and there must be judgment on the verdict.
We think the defendant should be allowed costs on the issues found for him. Meacham v. Jones, 10 N. H. 126.