Lansing v. Wiswall

By the Court, Beardsley, C. J. Case is the proper form of remedy where any action is maintainable for obstructing a public or private way. This difference, however, should be ob-’ served, that while the law gives redress for every such injury to a private way, an action for obstructing one which is public will only lie where special damage has been sustained. (1 Ch. Pl. ed. 1837, p. 162; 2 id. pp. 807 to 814 and notes ; p. 599, a, and note; Woolr. on Ways, 52 to 54; Lansing v. Smith, 8 Cowen, 146.) There is no incongruity in a joinder of separate [217] counts in the same declaration for both descriptions of injury; arid in such a case, all the counts being proved, the plaintiff will be entitled to recover on each and all of them. But if a single cause of action is alone in question on the trial, the plaintiff should not be required to elect which count in particular he will proceed upon, so as thereby to make the designation of the way referred to in the selected count, as public or private, an indispensable ingredient in the cause of action to be proved on the trial. The plaintiff may claim that the evidence is such as to maintain one of the counts in particular, and if not, that it does another, leaving the jury to decide upon which, if either, they will render a verdict in his favor. This gives no undue advantage to the plaintiff, for it simply allows him to insert a variety of counts so as to avoid a variance in the statement of his cause of action. Nor can the defendant be thereby misled or in any manner prejudiced. He may require the judge to instruct the jury as to the nature and qualities of each description of injury, with the usual right to except if the charge is supposed to be erroneous; as he also may require the jury, if they find for the plaintiff, to assess his damages on some one count in particular, and on the others render their verdict for the defendant. But there is no ground, as it seems to me, for requiring the plaintiff, in such a case, to select a particular count on which alone he must recover if at all. It is enough for him if he proves a right of action which falls within any one of his counts, leaving the jury to determine by their verdict which one in particular has been established by the evidence. The judge therefore decided correctly in refusing to compel the plaintiff to select a particular count, and the exception on this point must be overruled. I do not see that any thing which deserves to be called an exception, was taken by the defendant to the charge or to any ruling of the judge. The defendant insisted that if the plaintiff’s father had such a right of way as was now claimed by the plaintiff for himself, it had not been shown that it was ever conveyed to the plaintiff by deed or devise. This was a question of fact, not of law; and upon which no exception would [218] lie whatever the opinion of the judge might be. But it does not appear that the judge expressed any opinion on the point, or gave any advice to the jury in relation to it. Besides, the fact was not as the defendant assumed it to be, for he had himself proved that the plaintiff acquired title to his share of the Vandenburgh farm by devise from his father. If this right of way was appurtenant to the farm, a devise of the latter would carry with it the right of way although not particularly specified in the will. (Kent v. Waite, 10 Pick. 138; Atkins v. Boardman, 2 Metc. 464.) And although the farm was devised in separate parcels to the plaintiff and his brother Henry A. Lansing, each thereby acquired ¡a right of way as appurtenant to his particular part of the land. ( Watson v. Bioren, 1 Serg. & Rawle, 527; Codling v. Johnson, 9 Barn. & Cress. 933.) The judge charged in general terms “ that on the proof in the case the plaintiff was entitled to recover the actual damage he had sustained by the obstruction of the road, to which charge the counsel for the defendant then excepted.” Now to what point or principle involved in this charge did the defendant intend to except ? Was it that there was-a question of fact for the jury, and which should be submitted to them for decision; or was it that the defendant objected to the rule of damages laid down by the judge? Or did the defendant intend to make a question which was broached on the argument, and insist that no such special injury had been shown as would authorize a recovery for obstructing a public wa.y? On this point the case of Hubert v. Groves, (1 Esp.148,) was referred to on the argument. But aside from the difficulty that no such point was made on the trial, the case referred to is not regarded as authority in England or in this state. (Greasly v. Codline, 2 Bing. 263; Wilkes v. Hungerford Market, 2 Bing. N. C. 281; Pierce v. Dart, 7 Cowen, 609.) An exception can only be taken on some particular point of law, for a mere general exception t.o a general charge amounts to nothing. If such an exception could be held good for any purpose, I do not see but that the whole body of the law of Ways, public and private, might here be drawn in question. [219] But this could not be allowed. The defendant should have put his finger on the particular point of law which he wished to raise, and by requesting the judge to charge upon it the question might have been made in an intelligible form. But upon this general exception it is impossible to ascertain what point was intended to be made, or the particular ground on which the opinion of the judge was founded. Nothing appears beyond the general conclusion that the plaintiff was entitled to recover, to indicate the view taken by the judge of the cause. It cannot even be collected from the bill of exceptions whether the way was regarded by him as public or private. But although we are thus left in the dark as to the particular ground on which the judge placed his opinion, we can very readily see that the evidence was such as to authorize, and indeed require, the jury to find for the plaintiff. This way had been used by the plaintiff and those whose rights he had, for some forty years, and there was nothing to repel the presumption that the right thus enjoyed had been originally granted by the owner of the land over which the way passed. Twenty years’ uninterrupted and unqualified enjoyment of such a right is decisive evidence of a grant. I shall not say that the law, on such evidence, will conclusively presume a grant; but, whatever the distinction may be worth, the law does require the jury to presume and find it. It would here, however, be out of place to enter upon a discussion of this or any other particular proposition involved in the general conclusion stated by the judge. He may have acted upon this or some other view of the case, and the exception was not so taken as to raise any question whatever. The party who objects to a verdict must show that it was founded on error in law or in fact. We do not see that there was error in any point ruled by the judge, and no question of fact can arise on a bill of exceptions. A new trial must be denied. New trial denied.