Opinion
No. 157-69
Opinion Filed December 1, 1970
Appeal and Error — Remand
Where lower court enjoined defendants from trespassing generally but did not set out the boundary between the parties reviewing court would remand the matter for further proceedings.
Proceeding to determine rights of parties respecting their common boundary. Washington County Court of Chancery, Brooks, Chancellor. Judgment reversed and cause remanded.
John A. Burgess, Montpelier, for Plaintiffs.
Richard E. Davis, Barre, for Defendants.
Present: Holden, C.J., Shangraw, Barney, Smith and Keyser, JJ.
The relief sought in this litigation was a declaration of the rights of the parties with respect to their common boundary. The order did not locate the boundary or settle the rights of the parties. Indeed, the order issued by the trial court is as consistent with a boundary located as claimed by the defendants as it is with one located according to the plaintiffs' claim. It simply enjoins the defendants from trespassing generally, and in particular ways, upon the lands of the plaintiffs. Crucial to its enforcement is the location of the common boundary, never found.
In some cases, this difficulty might be resolved by amending the order in accordance with the findings. In this case, such a course cannot be undertaken in this Court. Although the findings contain strong inferences that the boundary is found to be where the plaintiffs claim it to be, its location on the ground is never set out. See Barr v. Guay, 125 Vt. 1, 4, 209 A.2d 304 (1965).
Further, the evidence sets out that certain installations by way of water supply and a power pole were made by the defendants on land now claimed by the plaintiffs. These installations were not objected to by the plaintiffs, and, indeed, it was assumed by all parties that these facilities were being put on land belonging to the defendants. The issues raised thereby are left unsettled in the findings and in the judgment order.
It seems clear that, unfortunate as the expense of a further hearing is, justice between the parties will be better served by a remand for a new proceeding, in order that the issue may be adequately dealt with, and the rights of the parties fully declared.
Judgment reversed and cause remanded.