Ellen Dernier v. Rutland Railway Light & Power Co.

Decision Date05 May 1920
Citation110 A. 4,94 Vt. 187
CourtVermont Supreme Court

January Term, 1920.

ACTION OF TORT to recover damages caused by the flooding of land. Pleas, general issue, statute of limitations, and estoppel. Trial by jury at the March Term, 1919, Rutland County Butler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

For the errors specified, the case must be sent back for a new trial, and the judgment is reversed and cause remanded.

M C. Webber and J. P. Leamy for the plaintiff.



This is an action to recover damages alleged to have been caused by the defendant obstructing the flow of water in Castleton River and thereby setting the water back upon the land of the plaintiff. The alleged obstruction was made upon the defendant's land in the year 1902.

The first exception insisted upon is the one taken to the charge of the court in submitting to the jury the question of easement. The plaintiff claimed that the defence of easement was not raised by the pleadings and was unsupported by the evidence, while the defendant claimed that an easement could be shown under the general issue and that there was evidence tending to show that the defendant had acquired an easement by prescription to flood the plaintiff's land. In support of the latter claim, the defendant relies upon evidence admitted upon other issues in the case. But the fact that there was evidence in the case tending to show such an easement cannot avail the defendant in the absence of necessary pleadings, for it was to be applied--there being no waiver shown--only as it bore on the issues joined by the parties. Poole v. Mass. Accident Ins. Co., 75 Vt. 85, 53 A. 331; Griffin v. Martel, 77 Vt. 19, 58 A. 788; Probate Court v. Enright, 79 Vt. 416, 65 A. 530; Wells v. Boston & Maine R. R., 82 Vt. 108, 71 A. 1103, 137 A. S. R. 987; Bradley v. Blandin, 91 Vt. 472, 100 A. 920; Nichols v. Lane, 93 Vt. 87, 106 A. 592. Whether the claimed easement was properly in issue depends upon the scope to be given the pleadings under the Practice Act.

The complaint is in two counts, both entitled "in a plea of the case." The second count admittedly is in the form of a declaration in case at common law. The plaintiff claims that the first count is a count in trespass. The defendant pleaded a general denial, the statute of limitations, and estoppel. The claim is made that the issue of an easement could be raised under the general denial, and was so raised during the trial. It is immaterial whether both counts of the complaint are in the form of counts in case at common law. The Practice Act has abolished the common-law distinctions between case and trespass as to matters of pleading. See Newton v. New York, etc., R. Co., 56 Conn. 21, 12 A. 644. As forms of action they have been merged in the action of tort. The necessity or want of necessity of specially pleading an easement no longer depends upon the common-law rules as to the scope of the general issue in different forms of action, but rather upon the construction to be given to the provisions of the Practice Act relating to the answer. G. L. 1791, subd. II.

There can be no doubt that the burden of establishing the claimed easement was upon the defendant. In contemplation of the Practice Act, it is necessary that all matters relied upon as an affirmative defence should be specially pleaded unless otherwise provided by statute. We said in Bradley v. Blandin, 92 Vt. 313, 104 A. 11, that this was in accordance with the general rule governing pleadings under reform procedure like our Practice Act. It is the manifest purpose of the act to simplify the pleadings and thus eliminate uncertainty as to the facts in issue. To that end, the plaintiff is required to set forth in his complaint in brief and simple language the facts relied upon and the relief demanded. In turn, the defendant is required to answer either by a general denial, or by a specific denial of the allegations of the complaint or some of them, or by a brief and simple statement of the facts relied upon in defence. The denial, general or specific, of all the allegations of the complaint puts the plaintiff to the proof of every material allegation; but the defendant is not at liberty to raise false issues by this means and cannot safely do so, as he is liable to be penalized in costs for making such a denial without reasonable cause. G. L. 1792. His denial should be confined to the facts in dispute. If he relies upon special matter in defence, he must give notice thereof by proper allegations in his answer, which the plaintiff, in turn, must deny, or avoid by stating the facts relied upon to meet such allegations. There is no longer such a thing as the general issue with notice, nor can the defendant both deny, and confess and avoid, the allegations of the complaint. As in equity pleadings, the answer should state all the grounds of defence upon which the defendant relies; but it cannot contain inconsistent defences. Bradley v. Blandin, supra.

The only support of the defendant's position afforded by the Practice Act is found in the provision that the general denial "shall, unless otherwise provided, have the same force as a plea of the general issue at common law." But we do not think that the Legislature thereby intended to restore the general issue with all its common-law incidents, for that would defeat the spirit and purpose of the act. On the contrary, we think it was intended to give the general denial the same office as the general issue has at common law, which, as a pleading, does nothing more than to put in issue the material allegations of the declaration. No provision for a general denial was embodied in the original act, but it was incorporated in the subsequent revision of the statutes. The commissioner on revision recommended that "provision be made authorizing a substitute for the plea of the general issue, in view of statutes which refer to that plea and state what may be shown thereunder." See Report on Revision 179. In view of the avowed purpose to harmonize the provision of the statutes relating to an answer with those referred to specifying what might be shown under the general issue, it is not to be supposed that the legislative intention was to go further and "graft a wild olive" on the Practice Act. Interpreting the amendment as intended to give the general denial the force of a traverse preserves the symmetry of the act and accomplishes the purpose relied upon as its justification. The easement not having been pleaded was not an issue in the case, and the error in submitting it to the jury requires a reversal.

The plaintiff also excepted to the portion of the charge wherein the jury was instructed that, if the defendant had caused damage by backwater under claim of right for more than fifteen years, it raises the presumption of a grant and establishes the right. This was not a correct statement of...

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18 cases
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    • February 9, 2018
    ...See Preseault v. City of Burlington, 2006 VT 63, ¶ 12, 180 Vt. 597, 908 A.2d 419 (mem.); see also Dernier v. Rutland Ry., Light & Power Co., 94 Vt. 187, 194, 110 A. 4, 7 (1920) ("The principle which underlies the use of all easements is that the owner thereof cannot materially increase the ......
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    ... ... Clement v. Rutland Country Club, 94 Vt. 63, ... 66, 108 A. 843; ... A.2d 96, 142 A.L.R. 463; Dernier v. Rutland Ry ... L. and P. Co., 94 Vt. 187, ... ...
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1 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 2012-12, December 2012
    • Invalid date
    ...(1918). 54. Prouty v. Blanchard, 93 Vt. 206 (1919). 55. Oben v. Ducharme, 93 Vt. 211 (1919). 56. Dermier v. Rutland Ry, Light 8i Power Co., 94 Vt. 187 (1920). 57. Holton v. Hassam, 94 Vt. 324 (1920). 58. Cady v. Lang, 95 Vt. 287, 294 (1921). 59. Grout v. Gates, 97 Vt. 434 (1924 60. State v.......

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