Baker v. Koslowski

• Decision Date: 02 January 1952
• Docket Number: No. 1190,1190
• Citation: 85 A.2d 500,117 Vt. 124
• Parties: BAKER v. KOSLOWSKI.
• Court: Vermont Supreme Court

Page 500

85 A.2d 500

117 Vt. 124

BAKER v. KOSLOWSKI.

No. 1190.

Supreme Court of Vermont.

Jan. 2, 1952.

Osmer C. Fitts, Philip H. Suter, Brattleboro, for plaintiff.

Gibson & Crispe, Brattleboro, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

This is a bill in chancery brought to determine the rights of the parties in and to a 40 foot right of way, for damages and injunctive relief against continued trespasses. The case was heard on the bill of complaint, answer and cross bill, replication and oral testimony. Findings of fact were made and a decree entered. Both parties have briefed the case as here on the plaintiff's exceptions to the decree.

The only point briefed by the plaintiff as the excepting party is in regard to the injunctive part of the decree wherein injunctions were issued againt both parties. The only question raised by a general exception to a decree is whether it is warranted by the pleadings and supported by the findings. Vermont Motor Co. Inc., v. Monk, 116 Vt. 309, 311, 75 A.2d 671.

The bill of complaint alleges that the defendant has put sand, gravel and other substances on the right of way and has also put and pushed snow thereon thereby rendering it impassable to the plaintiff from her premises and that he had by himself and by business invitees obstructed the right of way and the plaintiff's use thereof by parking motor vehicles thereon and that he threatens to continue his acts. It prays in part that the court 'determine that the defendant has threatened to continue to interfere and obstruct and harass your plaintiff in her proper use * * * of the forty foot driveway and * * * be restrained from obstructing and harassing' and for damages.

It appears from the findings that the driveway or forty foot strip is owned by the defendant and is located just southerly of and adjoining the plaintiff's premises and is subject to use by the plaintiff as a driveway; that the defendant has put gravel and snow on part of the right of way thus preventing the plaintiff from using that part of it; that the customers of a tavern where the defendant lives which is located southerly of and adjoining the forty foot strip had, from time to time with the defendant's knowledge, parked cars on the right of way so as to interfere with the plaintiff's right to use all or any part of it and that this occurred almost every Friday and Saturday night after 9 P.M. and that the placing of gravel on the right of way and piling and plowing snow thereon had caused the plaintiff damage which was found to be $50.

The plaintiff claims that, by reason of finding number 25 which reads:--'Any automobile or other vehicle parked on said right of way obstructs the plaintiff's and defendant's free use of it for travel purposes,' she was entitled to an injunction prohibiting all parking on any part of the right of way and that it was error to grant an injunction that merely prohibited the defendant from 'parking automobiles on said right of way in such a manner as to interfere with the plaintiff's free use of said right of way.' She singles out the parking part of the injunction only and says that it should have been made more drastic. As has been observed, the findings show that the putting of gravel and the shovelling and piling of snow on the right of way as well as the parking of automobiles on it interfered with the plaintiff's use of it. The chancellor made no distinction in the injunction between the parking of automobiles and the putting of snow and gravel on the right of way so as to interfere with the plaintiff's use thereof and the injunction also contained a general prohibition from interfering in any manner with the plaintiff's use of the right of way. In this connection, it should be observed that the findings of damages caused to the plaintiff of $50 was because of the gravel and snow episodes only. Apparently those, in the mind of the chancellor, were of more detriment to the plaintiff than the parking.

The plaintiff, in her brief, says that if the wording is left as it is in regard to the parking it will only lead to confusion and disagreement as to what parking interferes with the free use of the right of way by the plaintiff and what parking does not interfere with the free use of it. The answer to this argument is that the prohibition in regard to putting snow or gravel on the right of way or interfering in any manner with the free use of it by the plaintiff and the prohibition against parking are all limited in the same manner. There is as much chance for confusion and disagreement over what putting of snow and gravel or the doing of other acts on the right of way interfere with the free use of it as with what parking interferes with the free use of it. There could even be a disagreement as to what constitutes parking even if it was prohibited entirely. If the parties wish or anticipate further trouble over the acts of each other in regard to the use or obstruction of the right of way, as it is apparent, from the allegations in the bill of complaint and cross-bill and from the findings, they have had in the past, no words in the English language would be likely to prevent it. Where there is a will there is a way. There is no merit in the claim that the prohibition in regard to parking will result in confusion and disagreement when there is the same language used in the prohibition in regard to other acts. There is nothing in the record that would justify a reversal because the prohibition is not more drastic than it is against other acts. This is especially...