Cleaves v. Braman

• Decision Date: 11 November 1907
• Citation: 103 Me. 154,68 A. 857
• Parties: CLEAVES v. BRAMAN.
• Court: Maine Supreme Court

68 A. 857

103 Me. 154

CLEAVES

v. BRAMAN.

Supreme Judicial Court of Maine.

Nov. 11, 1907.

Exceptions from Supreme Judicial Court, Hancock County.

Actions on the case by Herbert L. Cleaves against Dwight Braman; and by the same against Curtis Moon; and by the same against Gilbert Farnsworth; and by the same against Watson Joy. By agreement the four actions were tried together, and there was a verdict for plaintiff in each action, and defendants except and move for a new trial. Exceptions overruled. Motion sustained unless remittitur be made.

Four actions on the case for obstructing the plaintiff's right of way. Dwight Braman, the defendant in the first above entitled action, is the real defendant in all the other actions, the acts complained of in those actions having been committed under his direction and by his orders. By agreement the four actions were tried together.

At the time these actions were brought, the plaintiff owned certain lots of land comprising his hotel lot, and also, as appurtenant to these lots and his hotel lot, "a right of way for all purposes of a way over a piece of land forty feet wide in every part, lying easterly of and adjoining said lots and extending from the northeasterly corner of the last described lot to the county road," and the act complained of in each of these actions was the obstruction of this right of way by the defendants. Plea, the general issue together with the following brief statement: "And by way of brief statement the defendant says that he has in no way interfered with or obstructed the plaintiff's reasonable use of said right of way in, over, and upon said strip of land to be used as a way and described in the plaintiff's deed."

Verdict for plaintiff for $142.25 in each action. The defendants took exceptions to certain rulings made by the presiding justice during the trial, and also filed a general motion for a new trial.

Argued before WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and CORNISH, JJ.

Deasy & Lyman, for plaintiff. Bird & Bradley, B. E. Clark, and P. H. Gillin, for defendants.

WHITEHOUSE, J. These are actions on the case for obstructing the plaintiff's right of way. Dwight Braman, the defendant in the action first named, is the real defendant in all the other actions, the acts complained of in those cases having been committed under his direction. By agreement the four cases were tried together.

Some years prior to the commencement of these actions, the plaintiff had acquired title to certain lots of land at Sullivan Harbor, Me., lying north of the county road, comprising what was known as the "Hotel Bristol Lot" or the "Hotel Cleaves Lot," and also as appurtenant to these lots "A right of way for all purposes of a way over a piece of land forty feet wide in every part lying easterly of and adjoining said lots and extending from the northeasterly corner of the last described lot to the county road." Thus the plaintiff's property is bounded on the south by the county road and on the east by the piece of land in question 40 feet in width on which he has a right of way. His house is situated about 30 feet from the dividing line between his lot and the 40 feet strip.

The fee of this 40 feet strip of land known as "the avenue" or "the boulevard" was then and has since continued to be in the defendant Braman, subject to the easement, above described, in favor of the plaintiff. The defendant Braman's property known as the "Manor Inn," is situated at the northerly end of this 40 feet strip at a distance of about 160 feet from the county road.

August 13, 1906, Braman and the other defendants erected within the limits of this 40 feet avenue and on either side of it a fence of woven wire, attached to cedar posts four feet in height with a top rail of cedar poles. On the westerly side this fence is continuous along the entire front of the plaintiff's property with the exception of an opening therein about 14 feet in width nearly opposite the rear end of the plaintiff's lot.

At the southerly end of the 40 feet avenue near the line of the county road are 2 stone pillars about 14 feet apart, with 2 short sections of fence connecting each of them at "an angle" with the southerly end of the fence on either side of the 40 feet avenue. A passageway 14 feet in width is thus afforded from the highway northerly over the avenue.

The erection of this fence on the westerly side of the 40 feet strip is the act of obstruction complained of in these suits. The situation may be approximately represented by the following diagram:

At the trial the defendant contended that he was bound only to leave a convenient way for the plaintiff to pass in from and out upon the county road; also, that he was bound only to leave a convenient way for the plaintiff to pass back and forth from his own land to or from the 40 feet strip.

Upon the latter point the presiding justice instructed the jury as follows: "But in this case, Mr. Cleaves owns the land on the side of the forty foot strip, not at the end, and the forty foot strip is right next to his land; they are co-terminous; they come right together; so that Mr. Cleaves not only has the county road on one side of his lot, but he has a right of way on the forty foot strip on the east side of his lot. Therefore, I rule to you, and instruct you, that Mr. Cleaves had a right of access to this forty foot strip from his land, and a right of access to his land from the forty foot strip, for the whole length of his eastern line north and south—that is, he could get onto that forty foot strip from whatever part of his eastern line he saw fit, and he could leave that forty foot strip to get onto his land over the eastern line at any point where he saw fit, and where it was possible to do so. If there was any place along there where it was not possible to do that in the state of nature, then his right would not extend to that part. If by reason of some ravine or some ledge on the line he could not get across the ravine or over the ledge, he could not claim a right to pass onto the forty foot strip over such ledge or ravine, but but must content himself with where it was feasible. So, then, whenever feasible, from the north end of his eastern line to the south end of it, down to the county road, Mr. Cleaves had a right to pass onto that forty foot strip, and, in going onto the forty foot strip from the county road, he had a right to pass onto his own land wherever feasible and he saw fit."

At the trial the plaintiff testified as follows in reply to questions by his counsel:

"Q. What use do you make of your house? Is it simply a dwelling or do you use it for some other purpose?

"A. No, sir; we run it as a summer hotel, a public hotel, a boarding house; keep summer people there—transient people.

"Q. Did people leave your hotel on account of the fence?

"A. Yes; I think there was.

"Q. Whether when they left, at the time of leaving, they stated that they were leaving on account of the fence?

"A. Yes, sir."

The Jury returned a verdict in favor of each plaintiff, and the cases come to the law court on exceptions to the admission of the testimony above stated and to the foregoing instructions to the jury. The defendant also presents a motion to set aside the verdicts as against evidence.

The Exceptions.

1. In that part of the charge to which exceptions were taken, the justice presiding instructed the jury that the plaintiff "had a right of access to the forty foot strip from his land, and a right of access to his land from the forty foot strip for the whole length of his eastern line north and south—that is, he could get onto that forty foot strip from whatever part of his eastern line he saw fit * * * and where it...