Batchelder v. State Capital Bank , 66 N.H. 386 ( 1890 )

The plaintiff's right to the use of a passway was the right conveyed by the deed of April 27, 1874, from the bank to L. D. Brown, "to use in common with others as a passway the land lying between said City Bank [the defendants' bank building] and the land conveyed by this deed so long as the same shall be used by the said bank as a passage-way and said City Block [bank building] shall remain where it is now situated." The parties having defined the extent of the right, it cannot be enlarged by implication. Warden v. Balch, 59 N.H. 468. The right to use the land as a passway so long as the bank should use it for that purpose ceased when the bank ceased to use it. The fact is found that the bank closed the passway in 1878, and it has not been used as a passway since that time. The plaintiff's right terminated when the bank closed the passway.

The plaintiff contends that the right to use the passway would have passed to Brown as appurtenant to the land conveyed to him by the bank if it had not been mentioned in the deed, and therefore that the right to terminate the plaintiff's interest in the passway was a reservation — a reserved right to use the land for some other purpose — and that the plaintiff's right to use the passway would continue so long as the bank did not use it for any other useful purpose, and until the bank had notified him that they had ceased to use the land as a passway. This claim is not warranted by the facts. At the time of the conveyance by the bank to Brown there was no building on the land conveyed: every part of it was accessible from the public highway, and no circumstances existed which would give Brown a right to use the passway as a way of necessity. After the plaintiff's block was built by Brown, the use of the passway was a matter of convenience and not of necessity. An easement of convenience merely does not pass by implication. Wentworth v. Philpot, 60 N.H. 193; Smith v. Smith,62 N.H. 429; Smith v. Blanpied, 62 N.H. 652.

The stipulation in the deed was a grant of a conditional use of the passway, and the plaintiff's right to its use ceased when the bank ceased to use it. The bank are not claiming damages or attempting to enforce a liability against the plaintiff. The plaintiff is bound to know the extent of his right. To maintain his right to use the land as a passway, he must show that the bank are using it for that purpose, and no notice that the bank had ceased to use it was required to terminate his right. Hicks v. Burns, 38 N.H. 141, 147, 151.

Judgment for the defendants.

ALLEN, J., did not sit: the others concurred.