Opinion
Decided January 3, 1928.
A roadway by prescription may be established by evidence that the road was used only as a winter road if so used for twenty years openly and continuously without interruption by any assertion of a paramount right, and the territory precluded any use except when the ground was frozen.
A general finding of the trial court that a party has so acquired a right to pass over the property of another may be limited, if the proof so requires, by restricting the time of use to the winter months.
BILL IN EQUITY, alleging that the plaintiffs own a right of way across the defendant's premises and praying that the defendant ordered to remove a fence erected by him across said way, that he be enjoined from interfering with the use of the way by the plaintiffs, and that the roadway be delimited by metes and bounds. There was also an amendment alleging that the road in question was a public highway. The answer was a general denial. There was a trial by the court and a decree for the plaintiff. The court found that the existence of a public highway was not proved, but "that such plaintiffs as are the owners or in occupation of premises adjoining said roadway have by long usage, acquiescence and by prescription obtained the right to pass along said roadway in the usual pathway to their respective properties," and ordered that the defendant be enjoined from obstructing the reasonable use of said way by the plaintiffs.
Transferred by Scammon, J., upon the defendant's exceptions to the admission of evidence and to the denial of his requests for rulings, the substance of which is stated in the opinion.
John J. Landers, for the plaintiffs.
John G. Annala (of Massachusetts) and Arthur Olson (Mr. Annala orally), for the defendant.
The defendant's first four requests for rulings constituted in effect a motion that the bill be dismissed, and the only question argued by him is the sufficiency of the evidence to sustain the findings of the court. The exceptions to the admission of evidence were waived. An examination of the record discloses ample evidence to prove the existence of a well-defined roadway across the defendant's premises and its use by certain of the plaintiffs and their predecessors in title, openly as of right, and adversely to the defendant and his predecessors in title for as much as twenty-nine years. It was agreed by the plaintiffs that this roadway had been used only as a winter road, "when snow is on the ground and the ground is frozen so that no damage would result to the owner of the land." It appeared that a part of the territory traversed by the road was swampy, which precluded its use except when the ground was frozen. The evidence of user was consistent with the plaintiffs' limited claim of right, and characteristic of the kind of road described. It appears to have been used chiefly by the owners of woodlots remote from a public highway for the purpose of getting out wood and lumber. It might be found that this use, while intermittent and irregular, was nevertheless continuous, since it was never interrupted by any assertion of paramount right by the proprietors of the defendant's premises. Pease v. Whitney, 78 N.H. 201, 204; Barker v. Company, 78 N.H. 160, 164. Proof of the foregoing facts established the right of the plaintiffs. Hopkins v. Deering, 71 N.H. 353, and cases cited.
If the court's finding that certain of the plaintiffs have "obtained the right to pass along said roadway in the usual pathway to their respective properties," should be limited by restricting the time when the road can legally be used to the winter months, such a limitation will no doubt be made upon motion in the superior court. The order in this court must be
Exceptions overruled.
All concurred.