Connecticut western news., 1920-07-22
JUDGES DECISION IN
 WHITFORD-LEE CASE
(Continued from page 1)


 employees, members or your fami- lies, occupants of your premises, lesees, customers, patrons and grantees, stating that the defend ant owned and claimed to own, ab- solutely, the passway, and conclud- ing: "I do hereby give you notice of my intention to dispute any right or claim upon your part to cross my premises or use said driveway" This notice was prepared to conform to the provisions of Sec. 6114-611S of the General Statutes. These sec tions apply, however, only in cases where there is danger that a right of way will be gained by prescrip- tion, not to a case where such an easement is claimed by grant. AS regards all landowners and occu- pants except the plaintiff, these notices were an entirely proper pro- vision to make against the acquisi- ton by them of rights of way, and as regards the plaintiff, also, in so far as he was a party to the use of the passway by such persons, it was also proper. 1t is true that the statement of absolute ownership of the passway in the defendant is not correct; but under the circumstances then existing, she had a right abso- lutely to bar the plaintiff and the occupants of his premises from the use of the way. I think, therefore, that the serving and recording of these notices was under the cir cumstances a proper course of pro cedure for the defendant to take.
 The plaintiff, however, says that the placing upon record of the re- leases of the right of way and the service and recording of these mo- tices constituted a islander upon his title and claims that they had the effect of preventing the consumma- ton of an advantageous sale of his property which was then in negotia- tion, to his substantial money loss. In so far as the defendant is con- cerned, as already noted, she left the matter as to the steps which should be taken entirely in the hands of her attorney. Her honest purpose, and his, was to protect her home from the discomfort and in- convenience which was resulting from the increased and to no small extent illegal traffic over the pass way, mad which would be greatly augmented should the plaintiffs land be used for the distribution of coal, and to prevent the acquisition by prescription of any rights other than such as had been granted by her predecessor in title; any dis turbance of the use of the way in connection with the plaintiffs prem ises or any interference with prospective sale of those premises was entirely incidental to that pur- pose. The attorney for the defend ant contended, in good faith, that the right of way granted to Shields had never become, vested in the plaintiff, or, if it had, that, by his conduct, the plaintiff had forfeited his rights; the first claim in so far as it was based upon the state of the probate records presented question which was at least novel and there certainly was, in the statements of text-writers, and in some of the cases, good reason to hold the second claim to be sound. There was no actual malice on the part of the defendant and l think none can be implied, and, without that element, the plaintiff has no case.
 This is an equitable action and l think the procedure should be moulded to do substantial justice to the parties, as far as may be. l therefore shall continue the case until the next term of court. If, in the interval, the plaintiff shall take all reasonable steps to prevent those who have no right to the use of the passway from crossing his lands ir going to or from u and shall not make, or do anything 70 assist O. encourage, any Lnauthor- ized use of it, will then consider whether or not he may not be en- titled to certain forms of the relief he prays, and will then adjudica1e the rights of the parties as to the way.