[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 68 The learned trial justice found as a fact "that the fence, mentioned in plaintiff's complaint and alleged to have been built by defendant on plaintiff's land, is not upon plaintiff's land, but upon the line between plaintiff and defendant and marks the same," but he refused to find, upon the request of the defendant, as a conclusion of law, "that the defendant is entitled to judgment herein, declaring that the fence mentioned in the complaint is not upon the land of plaintiff, but is upon the line between plaintiff's and defendant's lands." The defendant excepted to this ruling and now insists that he has been denied a substantial right by the refusal of the court to find the conclusion of law required by the facts as *Page 69 established, and to adjudge that the fence in question is upon the true line of division between the lands of the parties.
The issue relating to the location of the fence was tendered by the plaintiff, accepted by the defendant and thoroughly tried by both parties without question as to form or remedy. It was a material issue upon which the first cause of action set forth in the complaint mainly depended. When the trial court found the facts in favor of the defendant, he was entitled to the fruit of the finding by having the law properly applied, and such an adjudication made as would, by matter of record, estop the plaintiff from reopening the controversy. It, therefore, became the duty of the court, upon the request of the defendant seasonably made, to direct such a judgment in his favor as the established facts required, so that there might be authentic, permanent and indisputable evidence of record as to his rights. As the complaint could not be dismissed upon the merits, because the plaintiff succeeded on the second cause of action, the defendant could have adequate protection only by an express direction for judgment in his favor to the extent that the facts were found in his favor. This the learned trial judge, doubtless through inadvertence, refused to do, although a request in proper form was presented to him at the proper time. Fortunately this error is corrigible upon appeal without ordering a new trial, as it is the duty of the appellate court to declare the law and apply it to the facts already found, and thus protect the parties from the evil of further litigation.
The judgment, therefore, should be so modified as to adjudge that the fence mentioned in the complaint is not upon the lands of the plaintiff, but is upon the line between the lands of the plaintiff and defendant, and as thus modified, affirmed, but, as the defendant's appeal was general and there is no other question requiring consideration, without costs in this court to either party.
All concur.
Judgment accordingly. *Page 70