ANDREWS, Ch. J.
The judgment determined that the plaintiff had a right of way over the premises of the defendant, which was obstructed by the fences erected by her on the north and south lines of her land. But it did not locate the way across the defendant's land in front of her dwelling. It gave the width of the way, the starting point at the north, and described it as extending therefrom (that is, from the southerly end of the public highway) southerly to the three-rod road. Between these points its course was left undefined. A straight line between these points would not mark the way which either party claims. Not only did the judgment omit to define the location of the road across the defendant's land, except to give the starting point at the public highway and its termination at the three-rod road, but its location and course between these points was neither described in the complaint, nor were they material to be ascertained in order to entitle the plaintiff to a judgment for the removal of the obstructions of which he complained. The fences erected by the defendant extended from the creek westerly along the north and south lines of her premises and necessarily obstructed the way. The removal of these obstructions would open the way, whether it passed on its course near to the piazza of the defendant's house, as the plaintiff now claims, or a few feet further to the east, as the defendant insists. If the plaintiff had brought his action to have the way located, as well as to have the obstructions at the ends removed, the court could properly have included this relief in its judgment, but this was not one of the purposes of the action. The judgment, while it does not purport to locate the way, except as stated, contains a general clause restraining the defendant from creating or maintaining "any obstruction" on said right of way. Upon this general clause in the judgment the contempt proceedings are based, and the judge at Special Term, acting upon affidavits presented on behalf of the plaintiff, to the effect that a particular route had been orally agreed upon by the parties to the deed of 1886, and was followed by user, and that the defendant, after the judgment, had placed obstructions therein so as to turn the travel across her lot a little further to the east, which were met by affidavits of the defendant stating the circumstances substantially as set forth in the statement of facts, ordered a referee to take proof, and upon the coming in of the report of the referee summarily adjudged the defendant guilty of contempt. So that, without a hearing and trial in ordinary course, the court has summarily determined a question of property right not raised by the pleadings in the action nor determined by the judgment, and has subjected the defendant to a fine, with the alternative of imprisonment and costs, on the theory that what she did was a vioation of the injunction embraced in the judgment.
It is, of course, not subject to debate that the order of a court having jurisdiction must be implicitly obeyed, however erroneous it may be, and that it is no answer for one called upon to answer for disobedience that the order or judgment was broader than the facts warranted, or gave relief beyond what was demanded or what the court, upon the facts, was justified in awarding. The interest in maintaining respect for the action of courts, and of orderly jurisprudence, forbids that litigants should be permitted, under plea of hardship or injustice, real or pretended, to nullify or set at nought orders or decrees, however improvidently made, even if it may seem certain that the court acted in granting them under misapprehension or mistake. ( People ex rel. v. Sturtevant, 9 N.Y. 263; Erie R. Co. v. Ramsey, 45 id. 637; Koehler v. Farmers', etc., Natl. Bank, 117 id. 661; People ex rel. v. Pendleton, 64 id. 622; Hughes on Injunc. §§ 1416, 1417; Beach on Injunc. 264.) If, therefore, the provision in the judgment in this case, restraining the defendant from maintaining any obstructions in the way mentioned, fairly construed, prohibits not only the closing up of the way by the defendant, but any interference whatever with the way as it in fact and law existed, it may be that what was done by the defendant was a violation of the judgment. But as punishment for contempt involves, or may involve, not only loss of property but liberty, it is a reasonable requirement that the mandate alleged to be violated should be clearly expressed, and when applied to the act complained of it should appear, with reasonable certainty, that it had been violated.
We think it plain that if a new action should be brought by the plaintiff to establish the location of the way, the judgment in the present action could not be regarded as determining its course and location through the lands of the defendant. This fact is not decisive of the question now before us, because the court may make a judgment or order broader than the issue to be determined would warrant, and this would be no justification for disobedience to the mandate so long as it stood unmodified or unreversed. But it is a circumstance of some weight in determining the real scope and operative effect of the clause in the judgment in question, which we suppose is always to be considered in passing upon an alleged contempt of a judgment or order. It seems to us that all that the court intended by the clause, and all that fairly can be deemed included in the mandate, were acts like those theretofore committed by the defendant, upon which the action was based, namely, the shutting off the way by obstructions preventing the plaintiff from passing over the defendant's land to the highway. If the broader construction claimed by the plaintiff is given, the defendant will be deprived of the opportunity of litigating the location of the way by user or agreement, or at all events will be subjected to punishment in this proceeding for an act not, as we think, within the spirit or purpose of the mandate.
This leads to a reversal of the order, with provision for restitution, with costs.
All concur, except GRAY, J., absent.
Order reversed.
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