Wheeler v. Rowell

| Superior Court of New Hampshire | Jul 15, 1835

Green, J.,

delivered the opinion of the court.

It is contended, that the abuttals of the close were not proved as laid in the declaration. But we are of opinion that this objection is without any foundation.

It was proved that there was a close bounded southerly and westerly, as laid in the declaration, and easterly on the close occupied by Pamela Wheeler. But there was a highway between the land occupied by Pamela Wheeler and the land of the plaintiff. This is, however, wholly immaterial. In trespass, quare clausum fregil, it is necessary to prove the abuttals of the close, as laid in the declaration, but it is not necessary to show a title to'the whole close. The close described in this declaration includes the highway ; but whether the highway is upon land to which the plaintiff has a title or not, he may recover if the cattle were trespassing on any part of the close to which he had a title. 5 N. H. R. 317, Peaslee vs. Wadleigh; Buller’s N. P. 89; 3 Starkie's Ev. 1436. The abuttals are all proved, as laid in the declaration.

The next question is, whether the evidence offered by the defendant, and rejected by the court, was admissible ?

It is said, on the part of the plaintiff, that if admissible at all, it was not admissible under the general issue ? But it is provided by statute that the defendant, in any cause tria-ble before a justice of the peace, may give any special matter in evidence, under the general issue, except such as may bring the title of real estate in question. And it is very certain that the matter which the defendant offered to prove would not have brought the title to the land in question.

It is further said, on the part of the plaintiff, that it could not be submitted to a jury to find a license upon the evidence offered. And we are of opinion, that proof of a general usage in the neighborhood to let cattle run at large on the highways and unfenced lands, would not alone be sufficient to justify a jury in finding a license in this ease. But if, in addition to such proof, it further appeared that the plaintiff himself had adopted and acted upon the usage, we think that such a usage, so adopted by the plaintiff, might be evidence of his assent that the cattle of his neighbors should go at large on his unenclosed lands adjoining the highways. ! : ;

We shall, therefore, grant a new trial; and if-it shall turn out in proof that there was a general, usage -in the neighborhood- to let cattle ran at large, which the plaintiff himself had adopted, it must be submitted to the jury as evidence of a license to the defendant in this case.

Neio trial'granted,