Nelson v. Progressive Realty Corp.

• Citation: 81 R.I. 445,104 A.2d 241
• Decision Date: 14 April 1954
• Docket Number: No. 2180,2180
• Parties: NELSON et al. v. PROGRESSIVE REALTY CORP. Eq.
• Court: United States State Supreme Court of Rhode Island

Page 241

104 A.2d 241

81 R.I. 445

NELSON et al. v. PROGRESSIVE REALTY CORP.

Eq. No. 2180.

Supreme Court of Rhode Island.

April 14, 1954.

Letts & Quinn, Providence, for complainants.

Donald O. Burke, George Ajootian, Providence, for respondent.

CAPOTOSTO, Justice.

This is an appeal in equity from a decree of the superior court adjudging the respondent corporation and its president and treasurer guilty of contempt for violation of an injunction, and imposing a penalty in the sum of $825 as damages to the complainants.

The bill in equity originally was brought by complainants, as owners of certain property located at premises numbered 36 and 37 Homer street in the city of Providence in this state, to temporarily and permanently enjoin respondent, its agents and servants, from moving a building to 38 Homer street, a location west of and beyond the aforesaid properties. Summarily stated, the bill alleged that in the course of such moving certain full-grown trees in front of complainants' premises would have to be cut or disurbed; that chapter 524, section 63(c), of the city ordinances prohibits any such action by the mover of a building without the written consent of the owner of the premises abutting on that part of the street where the trees stand; and that complainants had given respondent no such consent.

Following a hearing for a preliminary injunction, the court found that respondent had not obtained the consent required by the ordinance, and that its building could not be moved to the intended location without injury to the trees in front of complainants' premises. A decree incorporating those findings was thereafter entered enjoining the respondent corporation, 'its officers, agents, servants, employees and contractors * * * from cutting, removing or disturbing' the trees in question without complainants' consent.

While such injunction was in full force and effect respondent, with the advice of counsel, made certain measurements and, apparently believing from a consideration thereof that the building could be moved without injury to complainants' trees, went ahead and completed the moving of the building to its new location. But, contrary to expectations, in the course of such moving the trees were in fact damaged by way of a few broken limbs, branches and some sheared foliage. The complainants thereupon brought a petition to adjudge respondent in contempt for violation of the outstanding injunction.

At the hearing on such petition the only evidence of record on the question of damages was the conflicting testimony of tree experts respecting the nature and extent of the injury to the trees and the cost of repairing the same. The decree, entered in accordance with the court's decision, sets forth that the respondent corporation and its president and treasurer were adjudged to be in contempt and that they might purge themselves thereof by paying the sum of $825 within thirty days from the date of the decree in the following manner: $225 to complainants Celia and Irving Nelson, $100 to complainant Sydney Reuter, and $500 to their counsel. The respondent then duly appealed to this court claiming that the foregoing decree was against the law and the evidence and the weight thereof.

In the circumstances of this cause we deem it unnecessary to discuss at length the law of contempt. Although the line of demarcation between criminal and civil contempt is not always clear, yet subject to constitutional requirements or statutory provisions the court has the power, in furtherance of the due administration of justice, to punish in a summary but reasonable manner any intentional act in defiance or disregard of its authority or in disobedience of its orders and decrees. In other words, generally speaking a criminal contempt involves an act solely against the authority and dignity of the court itself or of a judge acting judicially, while a civil contempt ordinarily consists in intentionally disobeying an order of the court for the benefit of an opposing party in a civil action. In some instances the contempt may partake of both criminal and civil aspects. McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Ex parte Grossman, 267 U.S. 87, 111, 45 S.Ct. 332, 69 L.Ed. 527; Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797; Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Root v. MacDonald, 260 Mass. 344, 157 N.E. 684, 54 A.L.R. 1422; Local 333B, United Marine Division, Etc. v. Commonwealth, 193 Va. 773, 71 S.E.2d 159; Porter v. Alexenburg, 396 Ill. 57, 71 N.E.2d 58; 17 C.J.S., Contempt, §§ 1, 5, 6. See also In re Nevitt, 8 Cir., 117 F. 448; State v. Janiec, 25 N.J.Super. 197, 95 A.2d 762; Swanson v. Swanson, 10 N.J.Super, 513, 77 A.2d 477. Tested by the above principles, we are of the opinion that we are here dealing with a civil contempt, namely, a summary proceeding instituted by complainants for the purpose of obtaining compensation for whatever loss they suffered as a result of respondent's improper conduct.

The present appeal brings before this court only the decree that was entered on the petition to adjudge respondent in contempt. The merits of the case on complainants' prayer for an injunction and the decree granting such relief are deemed to be concluded in the absence of any proper appeal therefrom. Heroux v. Heroux, 59 R.I. 212, 194 A. 741; McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837.

The jurisdiction of the court to entertain the petition under consideration was not challenged by respondent. Furthermore, it is clear that,...