Opinion
No. 468-79
Opinion Filed November 5, 1980
1. Injunction — Review — Grounds for Reversal
Prejudice to defendant was a requisite to reversal of grant of injunction on ground of inordinate, inexcusable delay between time of hearing and time of disposition of the case.
2. Appeal and Error — Findings — Mislabeling as Conclusions
That "hostility" and "claim of right" were set out by trial judge as conclusions rather than as findings in proceeding for injunction against interference with plaintiff's use of a right-of-way was not a fatally defective mislabelling.
3. Injunction — Scope — Lack of Specificity in Order
Where judgment order granting injunction against interference with right-of-way described the right-of-way by reference to another document, in contravention of rule, and did not limit the right-of-way's use to the agricultural and recreational uses conceded by the parties and found by the court, and did not set the width of the right-of-way, reversal and remand for proceedings to remedy such defects would be ordered. V.R.C.P. 65(d).
Defendant appealed grant of injunction to plaintiff. Windsor Superior Court, Morrissey, J., presiding. Reversed and remanded.
Philip M. Johnson and Stephen A. Reynes of Niles, Johnson Gibbs, Woodstock, for Plaintiff.
Parker and Lamb, Ltd., Springfield, for Defendant.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
This case is before us for the second time. See Rice v. Martin, 136 Vt. 124, 385 A.2d 1090 (1978). The trial court again granted injunctive relief against interference with plaintiff's use of her right-of-way, and this appeal resulted.
Defendant claims error because of the inordinate delay between hearing and disposition. The delay is, indeed, inexcusable. But, as in Anderson-Friberg Co. v. S. G. Phillips Corp., 137 Vt. 565, 566, 409 A.2d 560, 561 (1979), the prejudice requisite for reversal on this ground does not appear.
He also challenges a lack of finding that the plaintiff's possession was adverse. Both hostility and a claim of right are set out as "Conclusions" rather than as findings. We do not view this mislabelling as a fatal defect, and the items in question appear to be supported by the record.
But the judgment order entered below is indeed defective. It describes the right-of-way location by reference to another document, in contravention of V.R.C.P. 65(d) and the express direction of the previous decision. Nor does it limit the use of the right-of-way to agricultural and recreational use, which all parties concede to be the extent of the easement, and which the court found. Further, the width of the right-of-way is neither found nor set out in the judgment order. A remand is required for determination of this width, for a description of the right-of-way location conforming to the requirements of V.R.C.P. 65(d), and amendment of the order restricting usage by the plaintiff to agricultural and recreational purposes.
Reversed and remanded for further proceedings consistent with the views herein expressed.