Summary
requiring parties to object, and to petition trial court for further clarification of the court's order, for this court to consider the effect of the failure to make findings and rulings
Summary of this case from State v. FarnsworthOpinion
No. 3775.
Decided May 3, 1949.
A general finding includes all subsidiary findings necessary to sustain it where no special findings or rulings were requested or made. Requests for special findings and rulings must be made before the verdict or decree is rendered.
BILL IN EQUITY, by the plaintiffs to restrain the defendants from obstructing a certain way from the Conant road, so-called, in Nashua, over the land of the defendants and another owner, not a party, to the premises of the plaintiffs. The bill also sought an injunction based upon the alleged existence of this right of way.
At the close of all the evidence the Court found and ruled that a right of way to pass and repass on foot and with motor vehicles over the premises of the defendants exists and a permanent injunction was ordered, restraining the defendants from interfering with the use of the right of way by the plaintiffs, their agents, servants or invitees.
The defendants excepted to the findings and rulings on the grounds that the evidence is insufficient to sustain the existence of such a right of way. In their brief and oral argument they also objected, in effect, for the first time to the failure of the Court to make more specific findings and rulings.
Transferred by Lampron, J. Further facts appear in the opinion.
Morris D. Stein for the plaintiffs.
Leonard G. Velishka and Alvin A. Lucier (Mr. Lucier orally), for the defendants.
An examination of the record discloses evidence to warrant the Court's general finding of a right of way between twelve and fifteen feet wide in favor of the plaintiffs across designated portions of the defendants' premises. Since prior to the issue of the decree no special findings or rulings were requested or made, this finding, impliedly including all subsidiary findings necessary to sustain it, must be upheld. Hope Shoe Company v. Company, 89 N.H. 178, and cases cited; New Hampshire Savings Bank v. Bank, 93 N.H. 326.
It is doubtful if the Court intended to decree anything other than an easement appurtenant acquired by prescriptive use, however, if the parties wish further clarification they may petition the Superior Court since the defendants' present objection to the failure of the Trial Justice to make more specific findings and rulings comes too late. Cotton v. Stevens, 82 N.H. 105. See also, Sisters of Mercy v. Hooksett, 93 N.H. 301, 310.
Decree affirmed.
All concurred.