Green v. Stockwell

• Decision Date: 06 February 1914
• Citation: 89 A. 870,87 Vt. 459
• Parties: GREEN v. STOCKWELL et al.
• Court: Vermont Supreme Court

89 A. 870

87 Vt. 459

GREEN

v. STOCKWELL et al.

Supreme Court of Vermont. Rutland.

Feb. 6, 1914.

Exceptions from Bennington County Court; E. L. Waterman, Judge.

Trespass quare clausum by Alfred Green against Olin Stockwell and another. There was a verdict for plaintiff, and defendants excepted. Exceptions overruled.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Charles A. Maurer, of Bennington, for plaintiff.

Holden & Healy, of Bennington, for defendants.

POWERS, C. J. The declaration is trespass quare clausum, and counts on acts done on May 28, 1910, and on divers other days between that date and the date of the writ. The plea is the general issue, with a notice setting up a public way and a prescriptive right of way across the land.

It appeared at the trial: That in 1896, when the plaintiff bought the land in question, there was an opening in the wall at the southwest corner of the field, through which the defendants and others had been accustomed to pass in crossing from the highway through the plaintiff's field to the so-called East Road, near which the defendants owned and operated a sawmill. That soon after he bought the place the plaintiff forbade the defendants crossing there, and filled up this opening with rocks and stones, so that teams could not go through. Thereupon the defendants made a new opening by swinging around a length of fence, and this was used by them and others until the spring of 1910, when the plaintiff built a new woven wire fence around a part of his premises, and across this new opening. On May 28, 1910, they went across the field with a team, and, finding the wire fence across the opening, procured some wire cutters, cut the wires, and passed through.

The jury returned a general verdict for the plaintiff, with a special verdict negativing a public way, and another negativing a right of way in the defendants.

The plaintiff was allowed, subject to exception, to show that on different occasions one of the defendants went across the land in question when he was not accompanied by the other. And it is urged that, since the plaintiff had sued for joint trespasses, he could not recover for individual trespasses. The fact that the defendants did cross the land at the times testified to does not appear to have been disputed; but the claim is that so far as these occasions are concerned there was nothing to show that these several acts were authorized by the nonparticipating defendant. But the whole fabric of the defense was built upon the claim that the public had traveled across there so long and in such a way that it had gained a right so to do, and upon the further claim that these defendants had traveled across there so long, so often, and in such a way as to gain a prescriptive right. They testified that they had been accustomed to cross that land whenever they had occasion, without permission of the plaintiff or his predecessors. For aught that appears this testimony relates to the very times specified by the plaintiff's witnesses. It would be absurd to assume that it did not include occasions when only one was present. The evidence complained of, then, was in full accord with the defendants' claim, and, instead of being harmful, was helpful, to them, for the more they showed they crossed the better their defense of a prescriptive right would look. So they cannot be heard to complain. Ware v. Childs, 82 Vt. 359, 73 Atl. 991.

This view renders it unnecessary to consider the effect of the subsequent action of the plaintiff and the court in limiting recovery to those occasions when both defendants were present.

The defendants seasonably requested the court to charge that, if a public way existed at the time the gap in the fence was filled up with rocks by the plaintiff, then the defendants would have a right to go around such obstruction. This request was refused, and the court charged that, if the right existed, and the way was blocked up, the defendants would have to stop right there, and would not have a right to open up another place and go through. To such refusal to charge, and to the charge as given, exceptions were saved. Much of the defendants' brief is devoted to the establishment of the soundness of this request. But the jury found that there was no such right there, from which it follows that the plaintiff did not wrongfully, but rightfully, fence them out. So any question as to what the defendants might lawfully have done had they established their claim was wholly immaterial. If there was any error in this matter, it was, in view of the special finding, utterly harmless.

None of the witnesses gave, in terms of money, an estimate of the amount of the plaintiff's damages. The defendants insist that, this being so, only nominal damages were recoverable. The burden of showing the amount of his damage lies on the plaintiff. And where the character of the damages is such as to be capable of being estimated by a strict money standard, he must give evidence thereof in dollars and cents. But, where they...