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Hood v. Nashua

Supreme Court of New Hampshire Municipal Court of Nashua
Jun 4, 1940
13 A.2d 726 (N.H. 1940)


No. 3175.

Decided June 4, 1940.

Certain evidence warranted the conclusion that the negligent maintenance of a city culvert from which water flowed onto land adjacent to that of the plaintiff was the cause of its percolating into the plaintiff's cellar.

The maintenance of such culvert is a private and not a public nuisance where the general public are not affected but only those individuals whose property is damaged by reason of its special location.

Standards of custom and practice while they are evidence of due care are not its test.

Though a witness may be permitted to state his views as to whether conduct was careful or faulty, the trier may disregard them and draw his own conclusion based on all relevant evidence notwithstanding the trier's lack of special knowledge of the subject.

Rightful conduct, or even passive inaction, may become wrongful when surrounding conditions change.

In an action for damages for maintenance of a private nuisance no notice of the plaintiff's claim need be furnished in advance of the action. Aliter where abatement of the nuisance is sought.

In such action for maintaining a defective culvert and thereby causing percolation certain evidence warranted a finding that the plaintiff had exercised due care in making inquiries before purchasing the property and subsequent thereto in waterproofing his cellar.

A release of damages given by an owner of land when a highway is laid out includes only those damages which arise from its proper construction and maintenance but not from negligent construction or maintenance.

The question whether damages are excessive will not be considered by the Supreme Court where the award is of a gross amount and no findings have been made as to the allowance of particular items.

ACTION, for damages from maintenance of a nuisance. The plaintiff owns a house on the west side of the Old Lowell Road in Nashua. The land east of the road slopes downward towards the west, and surface water reaching the east side of the road is carried across the road by a culvert and emptied on land north of and adjoining the plaintiff's. The court found that the city maintained the culvert in a negligent manner "by gathering the water in such large quantities that the same was flowed upon the land adjoining the plaintiff's and therefrom percolated into the cellar of the plaintiff's dwelling," and the plaintiff was awarded a verdict.

The defendant excepted to the denial of its motion for a nonsuit and also to the denial of its motion that the verdict be set aside as against the law, the evidence and its weight, and as excessive. Transferred by Clancy, J.

Albert Terrien, by brief, for the plaintiff.

Edward J. Lampron, City Solicitor, by brief, for the defendant.

One position the defendant takes is that the evidence warranted no conclusion that the water entering the plaintiff's cellar came from the culvert. It is admitted that the cellar is flooded only at times when water runs through the culvert in quantity. There was evidence that the land north of the plaintiff's and on which the water from the culvert emptied had "a very hard subsoil about two feet from the surface" and that the plaintiff's cellar floor was at a level which permitted the flow of water into it from the topsoil. The distance from the outlet of the culvert to the cellar was not over five rods. Evidence that the water came from other sources, if it might be accepted, did not require acceptance. The opinion evidence to the effect that the concentration of surface water by the culvert resulted in its seepage into the cellar was received without objection. Thus evidence amply sufficed for the inference that the maintenance of the culvert was the cause of the entrance of water into the cellar.

The conclusion of negligent maintenance of the culvert was proper. Standards of custom and practice, while evidence of due care, are not its test. Bouley v. Company, 90 N.H. 402. The opinion testimony that the maintenance was proper, therefore had only such weight on the issue of negligence as the court's consideration found it should have. In general, when a witness may be permitted to state his views of care or fault, the trier may disregard them and draw his own conclusion based upon all the relevant evidence, although he may not have the benefit of special learning and knowledge helpful in reaching a correct verdict. Vallee v. Company, 89 N.H. 285, 289, 290.

The complaint here is not in the character of the structure maintained by the city, but of the use made of it. The outflow of water from the culvert upon a field might be reasonable while the field remains open, but become unreasonable if the field is developed as a site for buildings. In the exercise of the right to concentrate surface water, the right to pour it off on one spot may be altered into a duty of different disposal. Rightful conduct, even of passive inaction, may become wrongful when surrounding conditions change. It follows that the manner of use of the culvert by the city, however reasonable while water from it was flowed only upon open land, might become unreasonable when the result was that the water entered buildings erected subsequently to the installation of the culvert.

It is argued that because others in the vicinity suffer from surface water, the plaintiff has incurred no damage for which he may specially bring action. The damage to others is not caused by the culvert, and even if it were, the maintenance of the culvert is a private, and not a public, nuisance. It is not the general public, who are affected but only such individuals whose property is specially located and are thus damaged.

The defendant, on the authority of Woodman v. Tufts, 9 N.H. 88, and Snow v. Cowles, 22 N.H. 296, argues that notice to the defendant of the plaintiff's claim was necessary before action on it might properly be brought. Two members of the defendant's Board of Public Works, its Engineer and Mayor all had notice. If this was not technically sufficient, it is thought that the authority of the cases cited should be limited in an application to suits where abatement of the nuisance is sought. Here, the action is for damages caused by the nuisance, and no adequate reason is presented why a notice of the claim should be furnished in advance of the notice given by the action.

The evidence supported the implied finding that the plaintiff was free from fault. When he bought the property, he had no notice of its exposure to damage from the culvert, and he findably exercised due care although making no investigation beyond inquiry from the owner's agent, whose reply might be regarded as sufficient reason for not pursuing the inquiry. His later efforts to have his cellar waterproofed might be found reasonably prudent although they proved inadequate. And any negligence in the erection of the house would not be chargeable to a purchaser exercising due inquiry and investigation when buying it.

The release given by the owner when the road was laid out included damages arising from its proper construction and maintenance, but not from negligent or unreasonable construction and maintenance. Gilman v. Concord, 89 N.H. 182, and cases cited.

The record here is too incomplete to pass upon the issue of excessive damages. The award was of a gross amount with no findings of the allowance for particular items. Apparently the plaintiff filed specifications reduced to an amount required to give the court jurisdiction of the action. While the plaintiff did not testify to the amount of items whose aggregate reached the amount of the award, there may have been other items claimed and taken into account, such as loss of rentals which might be found from the evidence. It does not appear whether or not the verdict included as damages the full cost of a new heater installed to take the place of one which had been in use for a number of years and the service life of which was shortened by the water of the culvert which entered the cellar.

Exceptions overruled.

All concurred.

Summaries of

Hood v. Nashua

Supreme Court of New Hampshire Municipal Court of Nashua
Jun 4, 1940
13 A.2d 726 (N.H. 1940)
Case details for

Hood v. Nashua

Case Details


Court:Supreme Court of New Hampshire Municipal Court of Nashua

Date published: Jun 4, 1940


13 A.2d 726 (N.H. 1940)
13 A.2d 726

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