Burnham v. Jenness

The opinion of the court was delivered by Taft, J. This was an action for obstructing a right of way across defendant’s door-yard, a right to pile wood therein, and for removing the wood. I. The plaintiff piled wood on the defendant’s land, and the defendant removed it to the plaintiff’s premises. The plaintiff was permitted to show that the defendant in removing it, piled it in a pathway across his, the plaintiff’s, premises. This the defendant insists was error. The court held that the plaintiff had no right to pile his wood on the defendant’s land, and that defendant might lawfully remove it, but in a manner to do the plaintiff no unreasonable or unnecessary damage. Some was removed to the pathway referred to, and some elsewhere. The question was left to the jury, whether the wood was removed to an unreasonable place or not. We think the testimony objected to, was pertinent to that issue ; it had direct reference to the question of where the defendant put the wood, and the character of the place where it was put; it bore directly upon that point, and although no claim was made that in that place it was unnecessarily exposed, the question of where it was placed, and how much was placed there, were material, and the evidence we think was properly admitted. [275] II. The plaintiff testified that the defendant stated to him the reasons why he removed the wood ; that he did it to be mean, but was then willing to do what was right about it. This testimony the defendant objected to. We think it was admissible ; it was an admission of the defendant touching the question of his right to remove the wood, and the manner of his doing it, and we know of no rule of evidence that would exclude it. The questions then at issue were, the right to remove the wood, and whether it was done in a reasonable manner, and put iu proper places; we think it competent to prove the declarations and admissions of the party in relation to it. He put some of the wood over the river bank where it went on to the ice, and exemplary damages were claimed, and that question might be seriously affected by the fact of whether the defendant was doing what he did, simply to be mean, and acting maliciously; or in the exercise of his supposed rights, in good faith. III. It is alleged in the declaration that the defendant obstructed the way by digging a ditch and turning a stream of water into it in such a manner as to make a deep mud-hole in the way ; and the admission of evidence to prove such facts, is excepted to. The court think it was competent to prove the facts alleged, and also that the highway surveyor did not make or authorize the' obstruction, a part of it being in the highway, it might well be presumed, in the absence of proof, that the surveyor had caused the obstruction. The whole testimony had a tendency to show who did cause it, and was therefore relevant. IY. Another exception relates to the charge as to the word, ways, in the deed from Samuel Densmore. The court held that under the deed the plaintiff had a right to both ways, if at the time of the reservation, both were impressed upon the soil, and were in use. The jury found by the special verdict that the Sutton way was the one that the parties understood was reserved in the deed, and they purposed and intended to keep that way open, and damages were returned for obstructing that way only. The fact is established that the Sutton way is the one reserved under [276] the deed. As no damages were returned for obstructing the Wheelock way, it becomes unnecessary to pass upon the construction of the deed, by the court below, for if the ruling had been different, viz. that the plaintiff had no right to the Wheelock way, as no damages were given for obstructing that way, it would have produced the same result, and the judgment should not, for such error, be reversed. Burnell v. Maloney, 39 Vt. 579. Y. The defendant further excepted to the charge of the court in regard to his liability for removing the wood. The plaintiff without right had put his wood on the defendant’s land. The jury were told that the defendant had a right to remove it, but that if he did so, he should do it, causing the plaintiff no unreasonable or unnecessary damage. There was no error in so ruling. YI. The jury found three dollars damages by reason of the obstruction by the mud-hole, caused by turning the water into the ditch dug by the defendant. It is true the jury found that he did not turn the water into the ditch for the purpose of creating the mud-hole ; but it resulted from it; and we see no reason why his liability was not the same as though he intended it. The court rendered judgment with damages, three dollars less than the sum found by the verdict. It is not stated whether the sum deducted was the damages caused by the mud-hole ; but we think it may fairly be presumed, as that was the only item of that sum in the verdict. The defendant excepted to the judgment upon the ground that it included exemplary damages on matters for which the plaintiff was not entitled to recover. We see no reason why judgment was not entered for all the damages returned by the verdict. We think the plaintiff was entitled to them ; but no exception was taken, and the judgment in that respect cannot be disturbed. If the plaintiff was entitled to the damages on account of the mud-hole, and they were omitted from the judgment, there is no reason why the judgment for exemplary damages should be disturbed. If there is no . presumption that the sum deducted was the mud-hole damage, then it does not appear but that it was a portion of the exemplary damages, which would not be an error [277] of which the defendant can complain, and it is incumbent upon the excepting party to establish error in order to obtain a reversal of the judgment. He does not do it, therefore let the judgment be affirmed.