Kimball v. Cochecho Railroad

Where the only way of access to the plaintiffs land was over a tract called “ the Factory Field,” which was the property of those under whom the plaintiff held his land, and which was owned by them when his land was conveyed to him, or over the land of strangers, it was held that he had a way of necessity over the Factory Field.

Case, for disturbing the plaintiff’s right of way. The writ was dated on the 31st of December, 1850. The right of way, stated in the declaration, was claimed by the plaintiff, both by prescription and as a way of necessity; It was proved and admitted on the trial that Ephraim Ham, on the 20th of April, 1803, owned the mill lot and privilege claimed by the plaintiff, and he also owned the land lying due north from the mill lot, and between it and land then owned by the plaintiff, and bounded southerly by the mill lot, northerly by the plaintiff’s land, westerly by Moses and Samuel Kimball’s land, and easterly by lands of Joseph W. Gage. The mill lot was bounded southerly and westerly by Cochecho river, easterly by Gage’s land, and northerly by the above described .tract of land owned by Ephraim Ham. The following plan shows the localities material to be understood. Gage’s land embraced that part of the Factory field lying easterly of the mill lot, and the residue of the Factory field is the land owned by Ham, on the 30th of April, 1803, in connection with the mill lot. It was shown that said Ham, on the 30th day of April, 1803, conveyed the mill lot and privilege to one Hanson Varney, who, on the 13th of August, 1803, conveyed the same to the plaintiff. The whole tract of land marked upon the plan as the Factory field, at and prior to the time of the laying out and constructing of the defendants’ railroad, was owned by the Cochecho Manufacturing Company. To prove title to the way by prescription, the plaintiff proved that he used the way across the Factory field twenty-seven years ago, and continued to use it as it then was-until within about seventeen years; a part of the Factory field over which a portion of the way passed was ploughed up, and the pathway was changed, and made to diverge from its own line for the distance of about twenty rods, diverging at the broadest part of the variation about fifty feet, and at the place where the track of the railroad crosses the way, about twenty-seven feet, and coming again into the original way, about two rods south of the south fence of the railroad, and before reaching the mill lot, and also coming into the old way north of the railroad, before leaving the Factory field. It did not appear by whose order in particular or wish the change in the line of the way was made. The Factory field was, at the time, occupied by one Williams, the agent of the Factory Company. The Factory field was owned by the Cochecho Manufacturing Company in 1848. The defendants were a railroad corporation, duly established as such by the laws of this State. Due notice of the laying out of the railroad over the way and through said Factory field was given to the Manufacturing Corporation, May 27,1848, and the doings of the commissioners, under date of June 20, 1848, were returned to the secretary of State, October 10,1848. Since that time the corporation have constructed their road crossing the alleged way, and have built a bridge over their road a few rods from the line of the old way. Neither the defendants nor the owners of the field ever made or tendered a title to a way over the bridge to the plaintiff, nor has the plaintiff ever used it. It was admitted that due notice was served on the railroad corporation, according to the allegation in the writ. A verdict ryas taken for the defendants, subject to the opinion of the superior court upon the foregoing case.