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Gowen v. Swain

Supreme Court of New Hampshire Strafford
Dec 5, 1939
90 N.H. 383 (N.H. 1939)


No. 3123.

Decided December 5, 1939.

Where actual uninterrupted use of land as of right, with knowledge of the adverse party, is shown to have existed long enough to create the presumption of a grant this presumption stands as sufficient proof of the grant unless rebutted by proof that the use was permissive.

Notwithstanding the above presumption, the burden of proof remains to establish the character of the use as a question of fact.

A tax-title acquired by the owner of the servient tenement does not extinguish an easement previously acquired.

Prescriptive title to an easement must be established by proof of actual use of the servient tenement.

Requests to a master are properly denied which call for reporting of evidence rather than facts.

And so of requests for the finding of facts which would be inconclusive on any issue.

PETITION, for an injunction to restrain the defendants from crossing land owned by the plaintiff and over which Leroy Swain (hereinafter called the defendant) claimed a right of way to his adjoining wood lot. A temporary injunction was issued upon the filing of a bond by the plaintiff. Trial before a master, who found the following facts.

The plaintiff's field over which the right of way is claimed is situated on the Hall road, so called, in Barrington. The plaintiff's grantor, the town of Barrington, acquired title to the land on October 5, 1935, by a tax collector's deed. The defendant's wood lot adjoins the plaintiff's land on the northwest. It was conveyed to the defendant's mother in 1879, and descended to the defendant and his brother on her death. In 1923 the brother conveyed his interest in the lot to the defendant.

The use which the defendant has made of the plaintiff's land is evidenced by wheel tracks leading from the Hall road through a gap in the stone wall bordering that road across the plaintiff's field and through a gap in another wall to the defendant's lot.

The master's report concludes as follows:

"The evidence of the Defendant tended to show that since he and his brother acquired title thirty-seven years ago, they had used the road whenever they wished, had annually used the way to obtain their winter's wood supply, and on any other occasion when they wished to visit their wood lot, either for business or recreational purposes, they had followed the road across the Plaintiff's field to their land. They had not asked permission, nor had permission been granted them to use the way. They went across openly whenever they desired with the idea that they had the right to do so . . .

"The testimony introduced at the hearing as to the use of the way in question covered a period of approximately thirty-six years before objection was made by the Plaintiff in 1936. During that period of thirty-six years, there had been a continuous use of this way for the purpose of reaching the Defendant's land for the usual purposes in connection with wood land; also for purposes of recreation. This use had been with the knowledge and acquiescence of the then owners of the land. Evidence of permissive use or license was insufficient to establish that there ever had been any permission or license granted for such use.

"The Defendant Swain and his predecessors in title had not made claim in words, nor had they ever declared that they were using the land adversely. The nature and frequency of the use, however, was such that the owners of the subservient field land should have been informed of a claim of right. The acts of the Defendant and his predecessors in their use of the way across the Plaintiff's field were of a character sufficient to justify a finding that they were done as of right. Accordingly, the Master finds that the Defendant in 1936, when objections were made by the Plaintiff, had a way by prescription across the Plaintiff's field land following the defined path way, and recommends to the Court that the Plaintiff's prayer for an injunction be denied.

"Evidence on the question of damages was introduced by the Defendants. The Defendant Everett Clark, who was hired by Defendant Swain to haul out wood, has suffered no damage. Defendant Swain claimed damages because of his inability to get out his wood. If the injunction is denied, he can now haul out his wood. The delay has not damaged him."

The master's report was allowed subject to the plaintiff's exception. Exceptions were also taken to the refusal of the master to grant certain of the plaintiff's requests for findings of fact and rulings of law. Other exceptions were taken to specific findings and to the refusal of the court to enter a decree for the plaintiff. The defendant excepted to the finding of the master on the question of damages. Transferred by Johnston, J.

Hughes Burns (Mr. Hughes orally), for the plaintiff.

Cooper Hall and William A. Grimes (Mr. Grimes orally), for the defendants.

The plaintiff filed sixty requests for findings of fact and rulings of law. Many of these requests are virtual motions for directed verdict. All requests of this nature and all exceptions to specific findings are disposed of by the conclusion here reached that all the master's findings, both general and special, are fully sustained by the evidence.

Numerous other requests call for the reporting of evidence rather than facts (see P. L., c. 339, s. 11) and for the finding of facts which would be inconclusive on any issue. Failure to grant such requests furnishes no valid ground of exception. Moynihan v. Brennan, 77 N.H. 273, 274; Roberts v. Company, 78 N.H. 491, 493; Nichols v. Fernald, 82 N.H. 186, 188.

Several requests relate to the burden of proof, the plaintiff's contention being that the defendant was obliged to show by evidence of "clear and affirmative nature" that "the use of the way was not consented to."

It is true that the defendant, having asserted a prescriptive right, was required to prove its existence by a balance of probabilities. 2 Tiffany, Real Prop. (2d ed.), 519, pp. 2045, 2046; Burnham v. McQuesten, 48 N.H. 446; Taylor v. Gerrish, 59 N.H. 569, 571. But evidence of acts of such a character as to warrant the inference that he and his predecessors in title had used the way as of right for a period of twenty years or more constituted prima facie proof. Jean v. Arsenault, 85 N.H. 72, 73. It then became necessary for the plaintiff "to come forward with evidence" that those acts were, in fact, permitted. Barber v. Bailey, 86 Vt. 219, 223. For "where an actual, uninterrupted use and enjoyment, as of right, with knowledge of the other party, is shown to have existed a sufficient length of time to create the presumption of a grant, the presumption stands as sufficient proof and establishes the grant, unless it is rebutted by proof that the use and enjoyment were permissive." Smith v. Putnam, 62 N.H. 369, 372. Notwithstanding this presumption, however, "the character of the use remains a question of fact, unless the proof and inferences are all one way, . . . and the burden of proof remains on the defendant." Barber v. Bailey, supra, 224.

The plaintiff here fails because there is no evidence from which it could reasonably be inferred that the use made of his field, so far as the defendant or any of his predecessors in title are concerned, was commenced or continued with the leave and license of the owner. In other words, the defendant's uninterrupted use of the roadway for thirty-six years was "unexplained." Jean v. Arsenault, 85 N.H. 72, 75; Taylor v. Gerrish, 59 N.H. 569, 571. Since this is so, the fact that the master may have understood that the plaintiff assumed the risk of non-persuasion on the issue of permissive use is of no consequence.

The plaintiff's suggestion that color of title "is an essential element in the defense here set up" is clearly erroneous. "The purpose of color of title is twofold: first, to show that possession of part is taken under claim of title to the whole; second, to define the boundaries of the tract covered by the claim." 3 Washburn, Real Prop. (6th ed.), s. 1981. See, also, Dame v. Fernald, 86 N.H. 468.

But the plaintiff further contends that even if a valid right of way existed on October 5, 1935, it was extinguished on that date by the tax collector's deed to his grantor.

While it has been said that "No title can pass by a collector's deed under the statute, but an estate in fee-simple" (Smith v. Messer, 17 N.H. 420, 428), and that one who receives a collector's deed acquires title to the land "devested of all other liens thereon or titles thereto" (Eastman v. Thayer, 60 N.H. 408, 418), neither of the cases cited holds that easements are extinguished by such a conveyance. The one relates to a right of dower, the other to a mortgage.

Although the authorities are not uniform on the subject (see Annotations, 40 A.L.R. 1523; 110 A.L.R. 612), "Ordinarily, a tax sale does not divest easements charged on the property sold." 3 Cooley, Taxation (4th ed.), s. 1494. See, also, note to "Recent Cases," 51 Harv. Law Rev., 361, 362.

Selectmen in this State are required to appraise all taxable property "at its full and true value in money." P. L., c. 63, s. 1. In determining this value no deduction is made for mortgages, liens, rights of dower, and similar interests. Apart from statute (see P. L., c. 66, s. 25), those holding such interests "are delinquent if the taxes are not seasonably paid." See Smith v. Messer, supra. But an easement is not a lien, nor is it a title to or interest in real estate in the sense in which those terms are applied to mortgages and dower rights. It is rather a servitude imposed upon the land, sometimes said to be "carved out" of the servient estate. Jackson v. Smith, 138 N. Y. Supp. 654, 656; Crawford v. Senosky, 128 Or. 229, 233. See, also, Bellows Falls c. Co. v. Walpole, 76 N.H. 384. Its existence lessens the value of that estate and increases the value of the dominant tenement.

Presumably assessors take into account this effect of easements on value in making their appraisals. See Lodge v. Swampscott, 216 Mass. 260, 263; Ehren c. Co. v. Association, 120 N. J. Eq. 136. And if, acting in ignorance of the existence of an easement, they overvalue the servient estate, the mistake is correctible by abatement proceedings unless circumstances exist which render abatement inequitable (Bellows Falls c. Co. v. Walpole, 76 N.H. 384).

"John Doe is the owner of a house and lot. He conveys an easement to his neighbor, Richard Roe. He mortgages the property to local bank. He executes a ten-year lease to John Doe, Jr. at the rental of one dollar a year. Then assessment time arrives, and he finds himself assessed on the full value of the land. He prepares a petition in abatement, setting forth that the three acts have greatly lessened the value of his property. His petition will be denied as to the lease and the mortgage, but may be granted as to the easement. It is well settled at common law and rarely changed by statute, that the mortgagor and the lessor pay the entire tax on the property as if there were no mortgage or lease, and that the life tenant pays the entire tax just as if there were no remainderman. But it has also been held that a landowner whose property is subject to an easement is entitled to a reduced valuation, the value of the easement being added to the estate of the dominant owner. When a piece of property is so encumbered with easements that no use can be made of it, the fee owner pays no tax." Bonbright, "Valuation of Real Estate," 34 Columbia Law Rev., 1397, 1435, 1436.

Section 2 of chapter 63 of the Public Laws, which provides for the separate assessment of "distinct interests" in real estate, does not, in our opinion, apply to easements appurtenant to land. See Black, Tax Titles (2d ed.), s. 104. As originally enacted, the section reads: "Whenever it shall be made to appear to the selectmen that several persons are owners of several interests in the same real estate, or that one person is the owner of land and another is the owner of any building, timber or wood standing thereon, they shall, upon request, appraise such several interests and assess the same to the several owners thereof separately." R. S., c. 42, s. 2. That the words "several interests" are of narrow application is evidenced by the fact that an amendment was deemed necessary in order to include within the provisions of the statute the owners of ores and minerals. Laws 1852, c. 1291. The fact that in 1867 the words "distinct interests" were substituted for "several interests" (G. S., c. 52, s. 2) is unimportant since the marginal notation in the Commissioners' Report of that year (c. 53, s. 2) indicates a verbal rather than a material change.

Neither the case of Granite State Land Co. v. Hampton, 76 N.H. 1, nor the case of Bellows Falls c. Co. v. Walpole, 76 N.H. 384, holds that the statute has reference to a right such as that here claimed. It is our conclusion that the plaintiff's grantor took the land subject to the right of way.

The master's finding that the defendant was not damaged by the temporary injunction was made in 1937. Since the injunction is still in force, the defendant is entitled to a hearing on the question of damages before the Superior Court.

Plaintiff's exceptions overruled: defendant's exception sustained.

All concurred.

Summaries of

Gowen v. Swain

Supreme Court of New Hampshire Strafford
Dec 5, 1939
90 N.H. 383 (N.H. 1939)
Case details for

Gowen v. Swain

Case Details


Court:Supreme Court of New Hampshire Strafford

Date published: Dec 5, 1939


90 N.H. 383 (N.H. 1939)
10 A.2d 249

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