Arel v. Centebar

• Decision Date: 10 May 1901
• Citation: 73 Vt. 238,50 A. 1064
• Court: Vermont Supreme Court
• Parties: AREL v. CENTEBAR.

50 A. 1064

73 Vt. 238

AREL

v. CENTEBAR.

Supreme Court of Vermont. Franklin.

May 10, 1901.

Exceptions from Franklin county court; Thompson, Judge.

Trespass between Peter Arel and Frank Centebar. From a judgment in favor of plaintiff, defendant brings exceptions. Affirmed.

Argued before TAFT, C. J., and TYLER, MUNSON, WATSON, and STAFFORD, JJ.

Elmer Johnson, for plaintiff.

Brigham & Start and Kelton & Maurice, for defendant.

STAFFORD, J. The action was trespass for hauling logs across the plaintiff's land at several times. The case was tried under a plea of not guilty. It seems that after the action was commenced the plaintiff brought a bill in chancery, and obtained an injunction against the defendant. Upon trial the defendant offered in evidence "upon the question of damages" this bill and injunction. They were excluded, and, we think, rightly. Hoadley v. Watson, 45 Vt. 289, 12 Am. Rep. 197, cited to show that the evidence should have been admitted, seems rather to support the contrary view.

After verdict, and before judgment, the defendant moved that the action be dismissed, or the verdict set aside, for that the court of chancery had exclusive jurisdiction. It is enough to say that there was nothing upon the record to show want of jurisdiction, and, the question being raised by motion, nothing outside the record could be considered.

The remaining questions arise upon requests to charge, which, the defendant urges, were not complied with. They relate to exemplary damages. The defendant claimed that he used the way for many years, and supposed he had the right, because no one said anything against it. But on a certain day the plaintiff met him so using it, and told him he must not use it any more. Yet he kept on. The court told the jury that for trespasses committed before this notice the defendant could not be visited with punitive damages if he used the way understanding that the plaintiff had no objection, and told them generally that punitive damages could be awarded for such time only as he was trespassing maliciously and with a willful purpose to invade the plaintiff's rights. The defendant then asked the court to charge that even for the trespasses committed by him after the notice he could not be visited with punitive damages, if he still believed he had a right to use the way. This the court declined to do, on the ground that the case had not been tried upon any such theory, and that there was no evidence tending to show that the...