65 Vt. 618 | Vt. | 1893
The plaintiff and defendant own adjoining parcels of land. They each derive title to their respective parcels from the same source. Plaintiff has a carriage shop on his land. In the conveyance of the defendant’s land there was a reservation of a road across it to the highway for the benefit of plaintiff’s carriage shop. This was for the necessary use and accommodation of the owners and occupants of plaintiff’s premises, who had used
The defendant is presumed to know the reservation of this way in his chain of title. Although the way was not defined by any prescribed route, he was bound to keep a suitable way open and free from obstruction across his land for the use of the plaintiff’s shop. This is not disputed. This he did not do.
The record shows that the plaintiff saw the defendant building the shed complained of, the construction of which took two or three days, but did not object to the location ot it, or speak to the defendant on the subject, nor inform him that he would, by such erection there, obstruct any right of way. The defendant contends that this finding of the referee is in effect a finding that the plaintiff licensed the erection of the shed. Giving these facts the most favorable cohstruction for the defendant which the law will permit, they are only evidence tending to prove a license, and not a license itself. Johnson v. Lewis, 13 Conn. 303 (33 Am. Dec. 405). It is not necessary for us to decide whether they have such tendency. The referee has not found as a fact that such a license was given by the plaintiff. On the contrary he finds that it did not appear that the plaintiff knew how far west the shed was being located until after it had been built. It was its location so far to the west that obstructed the way. The referee would not have been justified in finding a license from silent acquiescence on the part of the plaintiff, without knowledge on his part that, as the shed was being located, it would, when built, obstruct the way.
In December, 1890, shortly after the shed had been
To entitle the plaintiff to maintain an action for the obstruction of the way it was not necessary for him to show that he wished or attempted to use the way while it was obstructed and before the defendant acceded to his claim, nor was it ‘ necessary for him to prove that he sustained actual damage. The. erection of the shed was an invasion of the plaintiff’s right. In Wash. Ease. (2d Ed.), 659 (*569), it is said that, “though it is generally true that, in order to
In the court below the defendant claimed that the court should make an order restricting the allowance of costs to the plaintiff under R. L. s. 1,436, which provides that when a plaintiff in an action in a county or supreme court recovers judgment for nominal damages, the court may, in its discretion, make such order in respect to the allowance of
Judgment affirmed.