Opinion
No. 4191.
Decided March 3, 1953.
Where there are no requests for findings or rulings and the sole exception is to the verdict as rendered, the question for consideration by the Supreme Court under its discretionary procedure is whether there is evidence to sustain the verdict. Certain evidence warranted the finding that the defendant failed to sustain her burden of proving that her occupation of plaintiff's land had been such an adverse, continuous, and uninterrupted use as to give notice to the plaintiff that an adverse claim was being made to it.
TRESPASS, to determine whether the defendant has the right to use an old logging road which led from a public highway across the plaintiff's land to the defendant's lot. The logging road is the only road by which the defendant could reach her lot which was located in the rear of the plaintiff's property. The defendant claimed her right by adverse possession, but the Court, after a view, rendered a verdict in favor of the plaintiff and the defendant appealed. Other facts appear in the opinion. Transferred by Sullivan, J.
Philip H. Faulkner and George R. Hanna (Mr. Hanna orally), for the plaintiff.
Howard B. Lane (by brief and orally), for the defendant.
There were no requests for findings of fact or rulings of law and the sole exception being to the Court's verdict, the question before us which we may consider under our "discretionary procedure" is whether there is evidence to sustain it. Eastman v. Waisman, 94 N.H. 253. It appears that the road in dispute is not in sight of the plaintiff's home and that from 1926, when the defendant purchased her lot, until 1937, when a sugar house was built on it, the defendant and her family made about two or three trips a year on foot to her property. There was no evidence that the plaintiff knew or had reason to know of any adverse claim by the defendant prior to 1937 in any event. In this situation the Court was clearly warranted in finding that the defendant, upon whom the burden rested (Gowen v. Swain, 90 N.H. 383), had failed to sustain her burden of proving that her occupation had been such an "adverse, continuous, uninterrupted use . . . as to give notice to the record owner that an adverse claim was being made to it." Alukonis v. Kashulines, 97 N.H. 298, 299, and authorities cited. Furthermore, there was evidence from which it could be found that the use of the road to reach the defendant's land was not under a claim of right but of an alleged permission which the Court could believe was not established.
The defendant not having raised the question in the Superior Court of whether she had obtained any right under the statute (R. L., c. 90, s. 1), it is not available to her here, although it may be said there was no evidence which compelled a finding in her favor on this issue. It appearing that the record fully justified the verdict, the defendant's exception must be overruled. Eastman v. Waisman, 94 N.H. 253. The order is
Judgment on the verdict.
All concurred.