Blake v. Hickey

Branch, J. The plaintiff alleges in his bill that the defendants “on various days and times from on, to wit, the first day of July, 1941, up to the date hereof have continually trespassed on the petitioner’s lands on foot and with their automobiles.” In their answer, the defendants say: “That a highway has been established over said road by prescription and user, and that said road has been used by the public” since the year 1894. No request for findings of fact having been made by the parties, it must be assumed that the order of the Court is based upon an implied finding that the existence of a highway was established by the defendants. The question is, therefore, presented, whether there is any evidence that the road in question was a highway prior to July, 1941. “To establish a highway by prescription it must appear that the way was used by the general public continuously without interruption for a period of twenty years (P. L., c. 74, s. 1), under a claim of right without the permission of the owners.” Wason v. Nashua, 85 N. H. 192, 198. Under the law thus stated, the evidence presented three questions of fact for the determination of the trial Justice: 1, Did the use of the road by the public cover a period of twenty years prior to July 1, 1941; 2, Was the alleged use continued without interruption by any assertion of paramount right; and 3, Was the use of such a character as to sustain the finding of the trial Court that the road in question had become a highway? We have given consideration to the evidence upon each of these questions. 1. With reference to the time element, it would ordinarily be sufficient to refer to the following admission of the plaintiff: “Q. But the road that was there before you built was good enough for *320 campers and hunters and anyone else, wasn’t it? A. Yes. Q. It answered their pupose all right? A. It answered their purpose all right. Q. And they had had it for forty years? A. Yes,” and to the testimony of his witness, Alfred Smith, who testified as follows: “ The Court: How long have you been acquainted with that property? The Witness: Fifty years, as long as I can remember. Q. [By Mr. Blais] As long as you can remember people who have had occasion to go up there have gone up there? A. Yes. Q. A man who wanted to go up there fishing went up there fishing? A. He certainly did. Q. And if he had a camp he went up camping? A. Certainly. Q. They didn’t use it as a pleasure, but a man who wanted to went up there. . . ? A. Certainly.” However, inasmuch as these witnesses gave some contradictory testimony, it may be well to point out the following additional and unequivocal evidence. The road in question was described by the trial Court in his order as follows: “the new road so-called, being the road which runs southerly from the main road between Groveton and Berlin on the westerly side of Mill Brook so-called, up to the dugway road and thence to the camps owned by certain of the defendants.” There was evidence of considerable travel up and down Mill Brook dating from about 1894, but the evidence also tended to prove that this travel in the early years was entirely on the east side of the brook over what was called “the old road.” There was testimony, however, that as early as 1916, there was a well defined road on the west side of the brook which was passable by horse-drawn vehicles. The witness stated that, in that year, he went over the road once with a buckboard and a pair of horses to haul out a deer which he had shot, and again with a small wagon and a horse to haul in some furniture to a camp which he had built V up there. ” There was a large amount of evidence to the effect that in 1917 one Matt Smith “fixed up” the road on the west side of the brook and from that time on “if a man had occasion to go up there he went and everybody knew it.” The plaintiff became the owner of the lands adjoining this road in 1934 and at once proceeded to improve it further to facilitate his logging operations and “for the other fellows logging up there.” The public use of the road continued. “They have used it for any purpose; anyone who had to go up there used it.” It thus appears that there was ample evidence to support the implied finding of the trial Court that the new road had been in existence upon July 1, 1941, for more than twenty years. 2. There was much conflicting testimony as to gates, bars and *321 fences across the road installed by various parties. This testimony merely presented an issue for the trial Court to pass upon as to whether the use of the road had been interrupted by the owners of the adjoining lands. The most definite evidence of this kind was that of the plaintiff who claimed that, in 1937, he erected a gate with a lock across the road in order to prevent people from stealing some wood which he had piled in an adjoining field. This testimony was contradicted by several witnesses who were familiar with the road for many years and who testified that they never knew of any obstruction anywhere on the highway. But the complete answer to this testimony lies in the fact that the period of prescription might be found to have expired in 1936, and any attempts to interrupt the use of the road thereafter, were necessarily unavailing. 3. It clearly appeared from the evidence that the real basis for the plaintiff’s determination to close the road to public travel lay in the fact that the use of automobiles upon it in wet weather damaged the roadway, and a considerable portion of the evidence had to do with the question of how long it had been used by automobiles. This question does not appear to be decisive of any issue now before us for consideration. We do not subscribe to the view that the right acquired by user is no broader than the use. We think rather that where the right is founded upon travel in the modes formerly in use in the locality, it will expand with the natural development of means of transportation. Such was the holding in Hamp v. Pend Oreille County, 102 Wash. 184, L. R. A. 1918E, 400. As indicated in the note to that case (p. 402), authority upon this precise point is meagre but such cases as have been found support that decision. See State v. Scott, 82 N. H. 278, 279; Richmond v. Bethlehem, 79 N. H. 78, 81. This result is a corollary of the rule, well settled in this jurisdiction, that when a road is established by use alone, it is not necessarily limited to the traveled track and the ditches on each side. Willey v. Portsmouth, 35 N. H. 303, 312; Coffin v. Plymouth, 49 N. H. 173, 175; State v. Morse, 50 N. H. 9, 20. As above stated, there was evidence that the road had been used for vehicular travel as early as 1916, and the natural transition from horsedrawn to self-propelled vehicles did not affect the running of the period of prescription or the rights thereby obtained. It appeared that the principal use of the road was by lumbermen, wood cutters, farmers, hunters, fishermen and the owners of camps located in the neighborhood of Mill Brook. This use, while intermittent and of slight volume, was characteristic of the kind of road claimed (Salminen v. Jacobson, 83 *322 N. H. 219), and was sufficient to sustain a finding by the Court that a highway had been established by prescription. Exceptions overruled. Burque, J., dissented: the other concurred.