The plaintiff brought his action to compel the removal by defendant of certain obstructions which he alleged she had placed in a certain three-rod road, laid out by plaintiff and the ancestor of the defendant, and also to compel the removal of certain obstructions placed by defendant in a certain right of way two -rods wide, running from the southerly end of a highway near defendant’s premises over and upon her premises to the said three-rod road, through which the complaint alleged plaintiff had a right of way. The complaint did not definitely locate this right of way over plaintiff’s land, but stated such right to exist in a strip two rods wide starting from the southerly end of the highway. An answer was inter„posed, but before trial it was withdrawn and judgment was entered by default, and a copy thereof was thereafter duly served. The only point now in controversy relates to the two-rod strip. Respecting this the judgment as entered provided: “ That the defendant shall remove all obstructions from the right of way two rods wide, extending from the southerly end of the highway near the residence of defendant, southerly to the said three-rod road.”. This judgment was a final judgment, in that it determined that a right of way existed, directed the removal of existing obstructions, and by another clause of the judgment forever restrained the defendant *164from erecting or maintaining any obstruction on said right of way. (Jaques v. Methodist Episcopal Church in New York & Ors., 17 Johns. 548; Beebe v. Russell, 19 How. [U. S.] 283; Johnson v. Everett, 9 Paige Ch. 636; Black on Judgments, § 41.)
It being established that this was a final judgment and disposition of the merits of the controversy, the question arises what did it establish ? The language of the judgment is that it established the right of way two rods wide, with a beginning and an end. This was not a right of way over two rods of defendant’s land, but it was the right of way then existing. Manifestly it is not a broadening of the judgment to say that a particular right of way existed, and, as existing, the judgment established it. It is true that neither the judgment or complaint particularly described the right of way by metes and bounds, but this in no wise detracts from the fact that the then existing right of way was established. All that remained to be done was to find the particular boundaries of the strip. But this would add nothing to the fact that the judgment established in plaintiff a right of way over it or militate against the fact that defendant had no right to obstruct it. Mor did there remain any right then in defendant to substitute any other right of way. This view must obtain, as I think, when the nature of a judgment is considered, and the distinction which exists between the rights established by a judgment and the remedy provided for its enforcement. The language used by Mr. Black in his work on Judgments (§ 4, p. 8) illustrates the nature and consequence of a judgment: “ The first and most obvious consequence of a judgment is that it establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement. But this, it must be repeated, is not an integral part of the judgment. The judgment is merely the affirmation of a liability % The right to use the process of the court for its enforcement is a consequence which the law attaches to it.”
The language of Judge Bead in Kelley v. Stanbery (13 Ohio, 408) tends strongly to a confirmation of the position : “ The confusion has sprung up from failing to observe the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree.” As applied here, nothing further was needed in this judgment to estab*165list in plaintiff a right of way in the right of way then existing. It might be necessary when process was issued to invest him with the right to ascertain the fact where such right of way was exactly situate, but this was not at all necessary to voice the fact which the judgment proclaimed. (St. Louis, Iron Mountain & Southern R. R. Co. v. Southern Express Co., 108 U. S. 24.)
It was no less a violation of the judgment for defendant to-obstruct the established right of way than it would have been if its exact metes and bonnds had been given. Plaintiff alleged the obstruction of the right of way and the invasion of his right. The court necessarily said, in view of the denial interposed by defendant, I am unable to say, because we are not informed where this right of way is. This did not nullify the judgment or plaintiff’s legal rights.
But the court said in order that this judgment may be enforced, and the right which it gives preserved, we must delay the remedy until we find the fact. The court thereupon ordered the reference, not to determine any right of the parties in the judgment, but solely to determine a fact upon which a remedy authorized by the judgment might operate. This is the usual practice, and upon the coming in of the report, the fact being found, the court applied the remedy appropriate to such cases The difficulty which arose in this case was in the allowance by defendant of the entry of judgment in the form in which it now appears. - If she is entitled to any relief it must come from a modification of the judgment entered, and this can only be accomplished by opening the judgment and, if erroneous, establishing the correct right of way. I find nothing in the proceedings before the referee which calls for the setting aside of the report, while the penalty imposed was compensatory only for the expenses incurred. I find no error.
The orders appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Cullen, J., concurred.