
    Daniel W. Ketchum, Respondent, v. Frances Edwards, Appellant.
    Contempt— violation of a judgment forbidding the obstruction of a right of way — boundaries of the right of way, not stated in the judgment, may be determined by a referee after judgment.
    
    Upon an appeal from an order adjudging Frances Edwards, the defendant in an action, to be in contempt, it appeared that the plaintiff had obtained a judgment in the action which, among other things, required the defendant to “ remove all obstructions from the right of way two rods wide, extending from the southerly end of the highway, near the residence of defendant, southerly to the said three-rod road,” over which latter road a right of way was also claimed in the complaint, and forever restrained the defendant from erecting or maintaining any obstruction upon the right of way two rods wide. The judgment was duly served on the defendant, but she óbstructed, by a fence, the right of way two rods wide.
    In proceedings taken to punish the defendant as for a contempt, the court sent the matter to a referee, who determined that the defendant had obstructed, by her fence, the particular right of way two rods wide, extending from the southerly end of the highway, near the residence of the defendant, southerly to the said three-rod road, as that route was used before the commencement of the action, and thereupon the defendant was adjudged guilty of contempt.
    
      Held, that the order was proper, notwithstanding the fact that the complaint did not definitely locate the right of way over the plaintiff’s land, but merely stated such right to exist in a strip two rods wide, extending from the southerly end of the highway;
    That, as the judgment had established that a right of way existed and must not he obstructed, all that remained to he done was to find the particular boundaries of the strip;
    That, after the rights of the parties had been established by the judgment, the remedy provided for its enforcement was a matter for the court; and that the court, not for the purpose of determining any right of the parties in the judgment, but to inform itself where the right of way actually was, might properly send the matter to a referee, to the end that, upon the coming in of his report containing the fact found, the court might apply the appropriate remedy.
    Willard Bartlett, J., dissented.
    
      Appeal by the defendant, Frances Edwards, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 13th day of September, 1895, adjudging the defendant in contempt for disobedience to a judgment made in an action between "the plaintiff and defendant; also from an order made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 23d day of September, 1895, denying the defendant’s motion to modify the report of a referee appointed to take testimony in said contempt proceedings.
    In this proceeding, taken to punish the defendant as for a contempt of court for obstructing a way, a referee was appointed “ to take proof of the facts showing the exact location of the old ways described in the judgment herein and the acts of the defendant in reference to it before and since the entry of the judgment herein and to report to this court.”
    
      Nicoll Floyd, for the appellant.
    
      Elliott J. Smith, for the respondent.
   Pratt, J.:

This is an appeal from an order of the Special Term, adjudging the defendant in contempt for disobedience of a decree made in an action between the parties hereto.

The complaint in that action described the land of the plaintiff and the two rights of way which he claimed. The defendant appeared in the action by Hon. Wilmot M. Smith and answered, but before judgment the answer was withdrawn and judgment was taken by default, in accordance with the claim set up in the complaint. The judgment is in the following form :

“ The summons and complaint in the above-entitled action, having been duly served upon the defendant on the 30th day of November, 1894, and the defendant having duly appeared and answered by her attorney, Wilmot M. Smith, Esq., and the said Wilmot M. Smith, Esq., having, on the 14th day of December, 1894, by notice in writing, withdrawn the said answer, and this action having been duly noticed for trial at the Suffolk County Circuit, for April 15th, 1895, and having been regularly called on the calendar, and the plaintiff and his witnesses having been examined under oath, and on motion of Eliot J. Smith, the plaintiff’s attorney, it is ordered, adjudged and decreed that the plaintiff, Daniel W. Ketchum, have judgment against the defendant, Frances Edwards, and judgment is hereby rendered in favor of the plaintiff against the defendant, as follows:
“ 1. That the defendant shall remove all obstructions from the three-rod road laid out or hereafter to be laid out in the village of Centre-Moriches, county of Suffolk, the middle line of which is described as follows-: Beginning on the west shore of East Seenix creek, at a stake at or near the middle of the dock, about 12 rods southerly from Alanson Edwards’ house; thence running north 75 deg. 30 min. west, 14 chains, 20 links, in a straight line to a stake set up on the east shore of West Seenix creek, adjoining land late of Alanson Edwards, deceased.
“ 2. That the defendant shall remove all obstructions from the right of way two rods wide, extending from the southerly end of the highway near the residence of defendant, southerly to the said three-rod road.
“ 3. That the defendant, Frances Edwards, is hereby forever restrained from erecting or maintaining any obstructions on said road or right of way.
“4. That the plaintiff, Daniel W. Ketchum, recover from the defendant, Frances Edwards, the sum of six cents damages, and thirty-five and 81-100 dollars costs of this action.
“ Dated April I'Uh, 1895.”

This very plainly describes the location of the two-described rights of way, and then locates more especially the one two rods wide that commences at the end of the road near the defendant’s house.

This judgment was duly served on the defendant and was perfectly understood by her and was willfully violated.

There could not possibly be any mistake about the road two rods wide commencing at the end of the old country road near defendant’s house.

The evidence is that she not only obstructed this at its commencement, but built a fence clear across the peninsula from one creek to the other.

The proceedings were regular and proper. It was proper to refer the matter to a referee, to take proof and report the same for the information of the court. (§ 1015, Code Civ. Proc.)

It is too late to attack the judgment in this proceeding. To claim .that defendant was ignorant of the provisions of the judgment, or of its application, or what it described, or the location of the right of way, is puerile and against the great weight of evidence.

The order should be affirmed, with costs.

Hatch, J., concurred; Babtlett, J., dissented; Beowm, P. J., not sitting.

Hatch, J.:

The plaintiff brought his action to compel the removal by defendant of certain obstructions which he alleged she had placed in a certain three-rod road, laid out by plaintiff and the ancestor of the defendant, and also to compel the removal of certain obstructions placed by defendant in a certain right of way two -rods wide, running from the southerly end of a highway near defendant’s premises over and upon her premises to the said three-rod road, through which the complaint alleged plaintiff had a right of way. The complaint did not definitely locate this right of way over plaintiff’s land, but stated such right to exist in a strip two rods wide starting from the southerly end of the highway. An answer was inter„posed, but before trial it was withdrawn and judgment was entered by default, and a copy thereof was thereafter duly served. The only point now in controversy relates to the two-rod strip. Respecting this the judgment as entered provided: “ That the defendant shall remove all obstructions from the right of way two rods wide, extending from the southerly end of the highway near the residence of defendant, southerly to the said three-rod road.”. This judgment was a final judgment, in that it determined that a right of way existed, directed the removal of existing obstructions, and by another clause of the judgment forever restrained the defendant from erecting or maintaining any obstruction on said right of way. (Jaques v. Methodist Episcopal Church in New York & Ors., 17 Johns. 548; Beebe v. Russell, 19 How. [U. S.] 283; Johnson v. Everett, 9 Paige Ch. 636; Black on Judgments, § 41.)

It being established that this was a final judgment and disposition of the merits of the controversy, the question arises what did it establish ? The language of the judgment is that it established the right of way two rods wide, with a beginning and an end. This was not a right of way over two rods of defendant’s land, but it was the right of way then existing. Manifestly it is not a broadening of the judgment to say that a particular right of way existed, and, as existing, the judgment established it. It is true that neither the judgment or complaint particularly described the right of way by metes and bounds, but this in no wise detracts from the fact that the then existing right of way was established. All that remained to be done was to find the particular boundaries of the strip. But this would add nothing to the fact that the judgment established in plaintiff a right of way over it or militate against the fact that defendant had no right to obstruct it. Mor did there remain any right then in defendant to substitute any other right of way. This view must obtain, as I think, when the nature of a judgment is considered, and the distinction which exists between the rights established by a judgment and the remedy provided for its enforcement. The language used by Mr. Black in his work on Judgments (§ 4, p. 8) illustrates the nature and consequence of a judgment: “ The first and most obvious consequence of a judgment is that it establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement. But this, it must be repeated, is not an integral part of the judgment. The judgment is merely the affirmation of a liability % The right to use the process of the court for its enforcement is a consequence which the law attaches to it.”

The language of Judge Bead in Kelley v. Stanbery (13 Ohio, 408) tends strongly to a confirmation of the position : The confusion has sprung up from failing to observe the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree.” As applied here, nothing further was needed in this judgment to establist in plaintiff a right of way in the right of way then existing. It might be necessary when process was issued to invest him with the right to ascertain the fact where such right of way was exactly situate, but this was not at all necessary to voice the fact which the judgment proclaimed. (St. Louis, Iron Mountain & Southern R. R. Co. v. Southern Express Co., 108 U. S. 24.)

It was no less a violation of the judgment for defendant to-obstruct the established right of way than it would have been if its exact metes and bonnds had been given. Plaintiff alleged the obstruction of the right of way and the invasion of his right. The court necessarily said, in view of the denial interposed by defendant, I am unable to say, because we are not informed where this right of way is. This did not nullify the judgment or plaintiff’s legal rights.

But the court said in order that this judgment may be enforced, and the right which it gives preserved, we must delay the remedy until we find the fact. The court thereupon ordered the reference, not to determine any right of the parties in the judgment, but solely to determine a fact upon which a remedy authorized by the judgment might operate. This is the usual practice, and upon the coming in of the report, the fact being found, the court applied the remedy appropriate to such cases The difficulty which arose in this case was in the allowance by defendant of the entry of judgment in the form in which it now appears. - If she is entitled to any relief it must come from a modification of the judgment entered, and this can only be accomplished by opening the judgment and, if erroneous, establishing the correct right of way. I find nothing in the proceedings before the referee which calls for the setting aside of the report, while the penalty imposed was compensatory only for the expenses incurred. I find no error.

The orders appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Cullen, J., concurred.

Willard Bartlett, J. (dissenting):

I dissent from the conclusion reached by the majority of the court. The judgment did not locate the right of way. At the time the action was brought the defendant had put up fences across the whole width of her property, so that it was plain that she was then obstructing the right of way whatever might be its true route. When the contempt proceedings were instituted, however, those fences had been in part removed, so that there was available to the plaintiff an unobstructed way two rods in width over the property of the defendant. The plaintiff, nevertheless, has succeeded in having a fine imposed on the defendant because, although she affords him a two-rod' right of way, she still prevents him from passing along the particular route which he claims was used before the commencement of the action. I agree that if the judgment had established his right to the use of this particular line of travel, she could properly be punished for obstructing it; but where the judgment omits to locate or define the route, I do not think it can be made definite and certain in this respect by affidavits or depositions taken in contempt proceedings, so as to constitute a basis for inflicting punishment upon the defendant. A decree cannot be broadened in this manner for such a purpose. If the plaintiff wanted his right of way definitely fixed he should have alleged its location in" the complaint and prayed judgment accordingly, and then the defendant, unless she admitted his claim as thus specifically stated, would have had an opportunity to try the issue of location as one of the issues in the action, instead of having it determined on affidavits in a proceeding, the purpose of which virtually was to find out what the judgment meant.

I think the order appealed from should be reversed.

Orders affirmed, with ten dollars costs and disbursements.  