Webb v. Laird

62 Vt. 448 | Vt. | 1890

The opinion of the court was delivered by

Rowell, J.

The master finds that the defendant built the dam as cheaply as he could in the circumstances and condition in which he was placed, but that it is probable that a man of experience in such matters, with ample means and in favorable e'rcumstances, could have built it for less, but for how much less, he is unable to find from the testimony.

The orator claims that this problematical finding affords the true ground of determining the amount that he should contribute for building the dam, and that he'is liable for nothing more, because all beyond was occasioned by the defendant’s less favorable circumstances.

But the first finding is equivalent to saying that the defendant conducted the business in a diligent and prudent manner in the circumstances ; and this was all he was bound to do in order to entitle himself to contribution to the full amount of his expenditure. He stands in this respect like the innocent party to a broken contract, who can recover all the damage that, by , diligence and prudence,, he could not have prevented in the circumstances in which he was placed.

This is the rule laid down in Eureka Marble Co. v. Windsor Manufacturing Co., 51 Vt. 170, and approved in Wilson v. Greensboro, 54 Vt. 542. But of course those circumstances must not have been rendered unfavorable for the prevention of damage by any fault in law of his.

As to the injunction damages. It is claimed that the dam gave way by reason of the defendant’s fault in misconstruing the injunction, and that therefore he is entitled to nothing for repairing it. This court has already said that ho complied with the injunction as he had a right to understand it. 59 Yt. 116. And when we consider that it is the spirit and not merely the letter of an injunction that must be obeyed, we still think that he had a right to understand the injunction as he did, and was not in legal fault in obeying it accordingly.

A party from whom obedience to an injunction is required •should be allowed a fair latitude of construction, that he may the more surely avoid the risk of disobedience. If the party ■obtaining an injunction would be safe from the possible consequences of a construction by the other party that would enlarge the scope of it beyond what he intended it should be, let him ■see to it that it is made too plain to admit of such construction,

A few cases will illustrate the scope of the spirit of injunctions. Thus, an injunction against further proceedings in the collection of an execution enjoins the enforcement of the judgment itself. Campbell v. Tarbell, 55 Vt. 453. In Partington v. Booth, 3 Meriv. 148, an injunction against taking possession .under a verdict obtained in ejectment was held to be violated by procuring an attachment for non-payment of the costs taxed. "So in The Grand Junction Canal Co. v. Dimes, 17 Sim. 38, an injunction against obstructing the passage of boats along a canal was held to be violated by the bringing of fifteen suits on account •of such passage.

The giving way of the dam being due to the defendant’s obeying the injunction as he had a right to understand it, he can recover for rebuilding it and for the necessary loss of the use •of his mill for the time required to rebuild. It is not found that he was guilty of any unnecessary delay in rebuilding, but •on the contrary that he made such progress therein as he could, ■considering the season and the circumstances. Therefore, upon 'the findings, he is entitled to this class of damages as found by the master.

On Nov. 8, 1882, the defendant, without notice to the orator, •drew all the water from the pond, in order to make needed repairs •on the dam and the flume, in the making of which he was unnecessarily slow, as he might have made them in two days, but had not completed them on Nov. 13th, when he was arrested for violating the injunction, and thereby delayed three days, during which time he lost the use of the mill. On Dec. 15th he made written application to a chancellor for a modification of the injunction that would allow him to draw the water down and ' shut it out of his flume, so that he could repair the gate that let water onto the wheel; and on being shown the applieation, the •orator’s counsel at once consented to the modification asked for.

The defendant charges and was allowed for the loss of tírense of the mill from the time of his arrest to the time of the modification of the injunction — 30 days. Of this item it is sufficient to say that it does not appear why he lost the use of the mill longer than the three days he was delayed bjr the arrest,, nor clearly that he did in fact lose it longer, but it rather appears that he did not lose it longer, or certainly not so long as-charged, for in his application for a modification, which is made a part of the master’s report, he expressly says that “while using-his mill on Dec. 11 ¿/¿,” his gate got out of place, etc. There are not sufficient facts reported to warrant the allowance of this-item, whatever other defense there may be to it, except for the three days’ loss on account of the arrest.

Decree reversed and cause remanded, with mandate.