Connecticut western news., 1921-01-06
FINAL DECISION IN ,,,@ WHITFORD-LEE CASE
Judge MaItbie Renders Deci- sion for Defendant and
 Costs .s @

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 The following memorandum of decision has been filed by Judge Maltbie in the action brought by Rufus H. Whitford against Ada Strong Lee relative to the right of way across Mrs. Lees premises.
 Messrs. Nickerson and Mum are attorneys for Mir Whitford and Messrs. Landon, Herman and J. c. Roraback are Mrs. Lees attorneys. ::
 This case was tried out last June in Winsted and a preliminary deci- sion rendered by Judge Maltbie in July but continued by him to the fall term "to pemit the plaintiff to take all reasonable steps to purge him self of participation in the improper use of the way by others"
 Judge Maltbie heard evidence at Winsted on December 21 as to what had been done with these premises since last summer and has now rem dered his final decision in the matter and gives a judgment to. the defen- dant, Mrs. Lee with her costs of the action as follows: -r..
 Memo. of Decision.
 In so far as this action was one for islander of title, my memorandum filed July 19, 1920, was a judgment for the defendant. eg F..
 As regards the rights of the plaintiff in the way, the. rationale of that memorandum, in brief, was this: This way is attached to the plaintiffs whole property as an easement ap- purtenant; the evidence introduced showed no abuse of it by any use which the plaintiff was then making of his own property; but it did show wholly unauthorized and improper use by others, and that the conduct of the plaintiff had been such as to make him a joint wrong-doer with them; he was therefore chargeable with an abuse of his rights in the way; the effect of that abuse was not to destroy his rights but, so long as it continued, to suspend them and prevent him from prevailing in any legal proceeding brought to assert them And my conclusion was, as stated in the last paragraph of the memo, that, instead of then giving judgment for the defendant, I would continue the case to permit the plaintiff, if he care to do so, to take all reasonable steps to purge himself of participation in the improper use of the way by others.
 The sole question now is, has he acted reasonably to that end? All he has done is to secure the erection of a fence across the west side of his property by the owner of the ad- joining land, and himself, to put a single bar, across the roadway pass ing southerly from his property to the railroad right of way. Frankly it is difficult to see how he could have done less in any attempt to comply with the suggestion of the Court. He left without obstruction the foot paths; he put up no notices warning trespassers or those having no busi- ness upon his premises not to cross; 1; he took no steps to cause fences to be erected on the southerly or cas- terly sides of his property, nor even to see whether it was not the duty of the railroad company to erect a fence between his property and its right of way. Gen. Stat. Sec. 3734, if. I do not think the plaintiff has taken "all reasonable steps to pre- vent those who have no right to the use of the passway from crossing his lands in going to or from it."
 The defendant, in view. of that conclusion, does not now press for affirmative relief, but in effect with draws any claim of that nature. Nor does he press upon the court at this time consideration of certain new uses to which the plaintiff has put his property since the former hear ing. Let judgment enter upon the complaint for the defendant, with her costs ofgthe action, and no judg ment enter upon the cross complaint.
 Maltbie, J.