Opinion
No. 3897.
Decided February 7, 1950.
Squam Lake containing an area of over twenty acres is one of the public waters of the State. While the bed of public waters is the property of the State to the natural high water mark a littoral owner's right to erect a wharf or other structure into such waters is superior to that of one who has rights only as a member of the public. The form of action is not open to attack in the Supreme Court where there was no exception taken thereto or to the plaintiff's theory of liability. If the form of action is not consistent with an agreed statement of facts upon which the case was transferred it may be amended to conform with the facts.
CASE to recover for use and occupation of a bathing beach on Squam Lake. The Court heard the matter in chambers on an agreed statement of facts made by counsel for the parties resulting in a verdict for the plaintiff. The statement is as follows:
"Now, I understand that it's agreed, and you men stop me if I don't state it correctly, that the plaintiffs own a cottage on Squam Lake; that running in front of the cottage and parallel with the shore of the lake is a public highway. It can be agreed that the defendants have erected a wharf from the edge of the public highway out into the lake, and that people can step from the highway on to the wharf.
"It is further agreed that the plaintiffs own the land on the opposite side of the highway from the wharf and have a cottage thereon.
"It is agreed that, if the plaintiffs are entitled to recover, their damages are in the sum of one hundred dollars.
"It is agreed that the wharf itself belongs to and was erected by the defendants, or their agents.
"It is further agreed that the defendants own a hotel in the vicinity of the lake, although it does not border on the lake, and that they built this wharf for the use of their guests.
"It is the position of the plaintiffs that as [the defendants] are not riparian [littoral] owners, they have no right to maintain a wharf in front of this property.
"Furthermore, it is agreed that the public way running along the shore of the lake was laid out by the Superior Court and that the reversionary title is in the plaintiffs."
The bill of exceptions was allowed by the Presiding Justice (Wescott, J.) to the defendants' exception to the denial of their motions to bring forward the action, vacate the judgment, reinstate the cause for new trial and to set aside the verdict.
William Maynard, for the plaintiffs.
Hazen K. Sturtevant, for the defendants.
Squam Lake is one of the public waters of the State. R. L., c. 182, s. 17. The plaintiff as a littoral owner had rights which were more extensive than those of one who is only a member of the public. Willis v. Wilkins, 92 N.H. 400, 404; Whitcher v. State, 87 N.H. 405, 409. While the bed of the lake is the property of the State to the natural high water mark (Taggart v. Jaffrey, 75 N.H. 473; Whitcher v. State, supra.), the plaintiffs' rights to erect a wharf or other structures into the lake is superior to that of the defendants if the latter have only the rights of a member of the public. Dolbeer v. Company, 72 N.H. 562, 565; Concord Manufacturing Company v. Robertson, 66 N.H. 1; State v. Sunapee Dam Company, 70 N.H. 458. In the absence of a prescriptive right or an express grant from the public the defendants' motions were properly denied. The rights of the parties in this matter are governed by the principles set forth in Hobart v. Bucklin, 88 N.H. 73.
Present counsel for the defendants state in their brief that the defendants did not agree to have the case submitted, had no opportunity to correct or edit the "agreed" facts and were prevented from presenting any evidence. The further argument is also made that: "The defendants now have evidence of ownership in the premises in question which they did not have at the time of trial although they diligently searched for it, such evidence is material to the point to be decided by the verdict and not collateral to it, and the evidence goes to the merits of the case and is of such a character that it is probable, at least, that a different result will be reached upon another trial." It is difficult to ascertain from the record whether these matters have been presented to the Trial Court and considered by it. In the absence of a definite and specific offer of proof (State v. 4.7 Acres of Land, 95 N.H. 291) or a ruling on these matters by the Trial Court it is impossible to say that there has been any abuse of discretion or that the defendants are or are not entitled to a new trial. R. L., c. 398, s. 1. If the defendants have not presented these matters to the Trial Court, they may now do so. But as the record now stands the exceptions are overruled.
It is unnecessary to decide whether the form of the action is consistent with the agreed statement of facts (Barron v. Marsh, 63 N.H. 107; Durrell v. Emery, 64 N.H. 223) since there are no exceptions to the form of the action or the plaintiffs' theory of liability on which the case was tried. Keefe v. Railroad, 78 N.H. 139, 140. There may be an amendment to conform with the facts if necessary. Fellows v. Judge, 72 N.H. 466.
Exceptions overruled.
All concurred.