39 N.H. 182 | N.H. | 1859
The first position assumed by the defendants’ counsel in support of the demurrer is, that the complainant has made no case for the interference of the court, because he has stated no title in himself to the way whose obstruction and destruction are complained of. It seems to us that this position is untenable. The complainant alleges that he now is, and for more than forty yearsdast past has been, seized in his demesne as of fee, of an acre and a half of land, in Hopkinton, with a sawmill thereon, and of a certain way over and across the land of the defendants, for himself, his heirs and assigns, and their tenants, occupiers of said land and saw-mill for the time being, and their servants, and all persons having occasion to use said land, or draw lumber to or from said mill, to pass and repass, on foot and with their horses, cattle and carriages, to and from said mill, every year and at all times of the year, for the convenient use and occupation of said land and mill.
If this be not an allegation, in substance, that the complainant has for more than forty year’s owned, occupied and enjoyed the way described as appurtenant to his land and mill; or if this be not the fair, natural and necessary inference from the statements made, it is difficult to conceive what language could be employed to express a claim of that character. It seems to us clearly sufficient. It is not material for the purposes of the demurrer how the complainant acquired his title, whether by gift, grant, user, adverse possession or from necessity. He manifestly claims to possess it, and that is enough.
It is not essential that the title of the complainant to the subject matter of the bill should be directly and explicitly averred; it is sufficient, if facts are stated from which the court may infer a title. Stoiy’s Eq. PL, sec. 7S0, and authorities.
The second and third objections insisted upon in support of the demurrer are, that the right of the complain
The case of Coe v. The Winnepiseogee Lake Company, 37 N. H. 254, is cited and relied upon to sustain these positions, but we think without good cause. The facts in that case were almost precisely the reverse of those in the present. There the complainant sought the interposition of the court to prevent the defendants from flowing his land, as they had done for several years and claimed the right to continue to do. Here the defendants interfere by force to obstruct and destroy a way which is conceded by the pleadings to have been used and enjoyed by the complainant for more than forty successive years, and to be indispensable to the profitable use and continued existence of his mill. Had the defendants sought to restrain the complainant from the continued use of this way, there would have been some resemblance between this case and that of Coe v. The Lake Company. As it is, we can see none.
It is undoubtedly the correct rule, deducible from the authorities, that a court of equity will not interfere by injunction in the case of nuisances, trespasses and the like injuries to property, when the parties can settle their rights fully and obtain complete redress in a court of law, unless it shall appear that irreparable mischief will be done by withholding the process, or the rights of the complainant have been established in a suit at law. But where the injury is irreparable, not susceptible of being adequately compensated by damages, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented; as where loss of health, loss of trade or business, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrong
The present case seems to us very clearly to come within most or all of these various classes. By the demurrer, all the material allegations of the bill are admitted, to wit., that the complainant for more than forty years has owned and occupied a saw-mill and lot, with a way appurtenant thereto, and indispensable to their enjoyment,' over and aci’oss the land of the defendants, and that the defendants have obstructed and destroyed that way by plowing it up and. removing the bridge across Ordway’s brook constituting a part thereof, thereby rendering said mill and lot entirely useless for the purposes to which they have been for more than forty years devoted. Here is a clear admission of an absolute injury committed by the defendants to the complainant and his rights, which is threatened to be continued; not susceptible of compensation in damages; the continuance of which must occasion a constantly recurring grievance, causing loss of business and trade, destruction of the means of subsistence, and
Entertaining these views of the various positions taken in its support, the demurrer must be overruled.
Demurrer overruled.
