Volume 55 — Connecticut Reports

<p>In 18.53 the common council of the city of Bridgeport accepted a proposition made by one G to supply the city with water, and granted him (with a right of assignment) the exclusive right to lay pipes in the streets so long as a full supply of pure water should be furnished. In 3857 the Bridgeport Hydraulic Company was incorporated with power to acquire, and which did acquire, all the rights of G under the vote of the city and became charged with all his duties : and this company soon after expended a large sum of money in acquiring property and establishing its water works. Held that, so long as this company supplied the city with an abundance of pure water, the legislature had no power to give another corporation the right to lay its pipes in the streets of the city for the purpose of supplying the city with water.</p> <p>Although the state may be no party to, and have no interest in, thesubject matter of a contract, yet if it invests a corporation, otherwise powerless, with power to make it, the legislature is thereafter concluded in reference to it. It is, as a lawful contract, sacred from any interference other than judicial construction.</p> <p>It is the duty of courts to preserve contacts inviolate rather than to destroy monopolies.</p> <p>If the common council had no power to grant the exclusive use of the streets, yet as the charter of "the defendant company recognized and confirmed the grant by the city, it became as effective as if the city had had the power to make it, and as if the legislature had made it in the most direct and explicit words.</p> <p>By a clause in the charter of the defendant company the legislature reserved the power to recall the frd.nch.ise at its pleasure. Held that this provision did not authorize the legislature to set aside or impair the contract which the city had entered into for the exclusive use of its streets by the defendant company so long as it should supply the city with water, and which the charter had recognized and confirmed.</p>

Indictment for murder in the second degree; tried to the jury in the Superior Court in Tolland County before Stoddard, J. Verdict guilty, and appeal by the defendant. The case is fully stated in the opinion.

Shit for an injunction to restrain the defendant city from constructing a highway across the railroad track of the plaintiff corporation; brought to the Superior Court in New Haven County. Facts found and case reserved for advice. The case is sufficiently stated in the opinion. 1. The vote of the common council of the city, by which it is claimed that the highway in question was laid out, never became operative from want of the legal approval of the mayor.

Action on a bond given to the treasurer of New Haven County by the defendants, McKane as principal, and Tynan as surety, upon the granting to the principal of a license to sell intoxicating liquors, for the observance by him of the requirements of the statute with' regard to the sale of liquors by licensed persons; brought to the District Court of Waterbury.

Suit for an injunction against the continuance of a nuisance and for damages; brought to the Superior Court in Hartford County.

Information for a conspiracy, in the Superior Court in New Haven County. The defendants were Benjamin F. Glidden, David McNamara, Thomas Mulcahy and Frederick Busche. The information contained six counts.

Action for trespass to land and cutting trees and shrubs growing thereon; brought originally before a justice of the peace, and, by the plaintiff’s appeal, to the Court of Common Pleas of Hartford County, and there tried to the court before Calhoun, J. The defense set up was—1. A general denial; 2.

Action for groceries sold by the plaintiffs to the Bridgeport Co-operative Association; brought originally before a justice of the peace, and, by appeal of the plaintiffs, to the Court of Common Pleas, and heard in that court, on a general denial, closed to the court, before Hall, J. The defendants were Milton D. Holden and Patrick Tate, who were the president and treasurer of the association, which was unincorporated. The following facts were found by the court.

Writ oe error to reverse a judgment of a justice of the peace in a proceeding of summary process to recover possession of leased premises; brought to the Court of Common Pleas of New London County, and heard in that court before Mather, J. Judgment affirmed and appeal by the plaintiff in error to this court. The case is sufficiently stated in the opinion.

Scire Facias upon a process of foreign attachment; brought to the Superior Court in Fairfield County and heard on a demurrer to the defendant’s plea before Stoddard, J. Plea held sufficient and judgment rendered for the defendant. Appeal by the plaintiff. The case is sufficiently stated in the opinion.

Suit for an injunction to restrain the defendants from acting as a school district committee; brought to the Court of Common Pleas of New Haven County and heard before JDeming, J. Facts found and judgment rendered for the defendants, and appeal by the plaintiffs. The case is sufficiently stated in the opinion.

Complaint for the annulment of an assessment for benefits from a city improvement; brought to the Court of Common Pleas in Fairfield County. The defendant demurred to the complaint and the case was reserved for the advice of this court. The case is fully stated in the opinion.

Action to recover a balance due on account; brought to the Superior Court in New Haven County. The defendant pleaded a set-off, which the court (Torrance, J.,) allowed, and rendered judgment for the plaintiff for the balance of his claim after deducting the counter-claim. The plaintiff appealed. The case is fully stated in the opinion.

Suit to foreclose a judgment lien; brought to the Court cof Common Pleas of Fairfield County.

Action to recover money paid by the plaintiffs to prevent tlie sale of their personal property upon a tax-warrant; brought to the Court of Common Pleas of Litchfield County, and heard before Warner, J. The defense was that the tax was legally due and that the levy was lawfully made by the defendant, Mattoon, as tax collector; the plaintiffs denying their liability to the tax. The court found the facts and rendered judgment for the plaintiffs.

Hitchcock, deceased, in disallowing a claim presented against the estate by the appellant; taken to the Superior Court in Litchfield County and heard before Sanford, J. Facts found and claim disallowed. Appeal to this court by the original appellant. The case is fully stated in the opinion.

Action upon a recognizance of the defendant as special bail; brought to the Superior Court in Hartford County and upon facts found reserved for the advice of this court. The facts are sufficiently stated in the opinion. 1. The writ of error cannot operate as a supersedeas because it was brought for the purpose of delay. This is a question of fact, as to which the finding is explicit that such was the purpose.

Andrews, deceased, taken to the Superior Court in Fairfield County. The distributees were legatees under the will of the deceased, and their rights depended upon the construction of the will. If the legatees took per stirpes the appellant was entitled to half the estate; if per capita to only one third. The court of probate held that the legatees took per capita and ordered a distribution of only one third to the appellant, and she took an appeal from the decree.

Suit for the construction of the will of George Foster; brought to the Superior Court in Hartford County. Facts found and the case reserved for advice. The case is fully stated in the opinion.

The following facts were found by the court: The appellant is the widow of the testator. They were married May 29, 1871. The will was made before the testator and the appellant became engaged to be married. The testator died February 14th, 1886, never having had a child, and leaving a brother and the son of a deceased brother as his next of kin. The inventory of his estate amounts to $16,234.91, of which about $5,800 is personal estate.

Action upon a judgment, brought before a justice of the peace and, by appeal of the defendant, to the Court of Common P]eas of Litchfield County. Facts found and ease reserved for the advice of this court. The case is sufficiently stated in the opinion.

Action to recover for work done and materials furnished in erecting a church edifice for the defendants; brought to the Superior Court in Hartford County, and tried to the court before Torrance, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendants. The ease is fully stated in the opinion.

Action against tlie defendant as one of the obligors upon a bond; brought to the Superior Court in Hartford County, and beard before Beardsley, J. The bond was as follow's :— “Know all men by these presents that we, James C. Walkley of Hartford, in the state of Connecticut, and Nelson Hollister of said Hartford, Treasurer of the Connecticut Valley Railroad Company, are holden and firmly bound jointly and severally unto the ¿Etna National Bank of Hartford in the penal sum of…

Day, deceased, in disallowing a claim presented against the estate by the appellant as administrator of the estate of Amelia F. Day, deceased, widow of the said George W. Day; taken to the Superior Court in Fairfield County, and tried to the jury in that court before Stoddard, J. Verdict for the appellant, and appeal by the appellee for error in the rulings and charge of the court. The case is fully stated in the opinion.

The probate decree reversed and an appeal from that judgment by the original appellee. The case is fully stated in the opinion. 1. The appeal in the Superior Court should have been dismissed on motion. There is nothing on the record showing that the appellants or either of them had any pecuniary interest in the matter of the appeal.

Action for a trespass to land and cutting and carrying away wood from it; brought to the Superior Court in Wind-ham County, and tried to the jury before Andrews, J. Verdict for the defendants, and appeal by the plaintiff for error in the exclusion of evidence. The case is sufficiently stated in the opinion.

Amicable Suit to obtain a construction of the mil of Earl Simons; brought to the Superior Court in Hartford County and reserved for the advice of this court. The case is sufficiently stated in the opinion.

Appeal to the Superior Court in Hartford County from the denial by tbe town of Bloomfield of an application for the annexation of a part of the defendant school district to the plaintiff school district under Gen. Statutes, p. 134, sec. 1. The court (Stoddard, </.,) upon a finding of the facts by a committee, passed a decree annexing a part of the territory included in the application, but not the whole of it, the part annexed being materially less than that asked for.

Action to recover of the defendants a claim of one James G. Williams, assigned to the plaintiff; brought to the Court of Common Pleas of New Haven County. Facts found and judgment rendered for the plaintiff. (Studley, J.) Appeal by the defendants. The case is sufficiently stated in the opinion. The defendants were not notified of the assignment before the debt was attached in their hands by another creditor. The notice, if any, was solely by letter or telegram.

Action on a guaranty of a promissory note; brought to the District Court of Waterbury.

' Suit for the construction of the will of Willis M. Anthony, deceased; brought to the Superior Court in New Haven County, and reserved for the advice of this court. The case is fully stated in the opinion.

<p>B agreed to build a house on land of B of such character and cost as he chose; B to pay him $200 towards it, and he to furnish the remainder and as compensation occupy the house. The house cost $425. The plaintiff furnished materials to B in ignorance of his arrangement with B, who paid B the $200 before notice that the plaintiff had furnished the materials or had not been paid. Held that B must be regarded as the original contractor with B and the plaintiff only as a sub-contractor, and that the plaintiff could not acquire a lien upon the building without giving the notice to B provided for by Gen. Statutes, p. 360, sec. 11.</p>

Application to the Superior Court in Middlesex County, for an order for the removal of stakes enclosing ground claimed to he a natural oyster, clam and mussel bed, under the provisions of General Statutes, p. 215, sec. 11. The facts were found by a committee, the defendant filed a remonstrance against the acceptance of the report, and the court made a finding of facts on the remonstrance and reserved the case for the advice of this court.

Action for fraud in the purchase of goods on credit, brought to the Superior Court in Hartford County. The following finding of facts was made by the court: The plaintiffs are dealers in wool, residing and doing business in the city of Hartford. This suit is brought to recover damages for a fraud which they claim was practiced upon them whereby they were induced to sell certain avooI upon credit. The defendant at the time of the sale was a resident of New York.

Action to recover the value of goods claimed to have been transferred to the defendants in violation of tbe insolvent act; brought to the Court of Common Pleas of Hartford County. The plaintiff was the trustee in insolvency of the estate of one Frederick A. Wheeler, and the goods in question had been transferred and delivered by Wheeler to the defendants, who were his creditors, shortly before he was carried into insolvency.

Action for entering upon and cutting and removing growing wood from land claimed by tbe plaintiff; brought to the Superior Court in… Held: on the foregoing facts, that the plaintiff had title to and possession of the premises in question, both by accretion and by adverse possession, and that the defendants had committed the trespasses claimed, and rendered judgment that the plaintiff recover of the defendants two hundred and nine dollars, being the value of the trees…

Suit to obtain a construction of the will of John M. Davies, deceased; brought to the Superior Court in New Haven County, and reserved, upon facts admitted, for the advice of this court. The article of the will under which the questions arose is given, with the facts, in the prevailing opinion, and certain other parts of the will in the dissenting opinion. 1.

Suit for the foreclosure of a mortgage; brought to the Superior Court in New Haven County, and heard before Stoddard, J. Facts found and'deeree passed. Appeal by one of the defendants. The case is fully stated in the opinion. cited—Bank of N. America v. Wheeler, 28 Conn., 433; Mead v. N. York, Housatonic & Northern R. R. Co., 45 id., 199, 223; Schuler v. Israel, 120 U. S. Reps., 506.

Action for an injury through the negligence of the defendant; brought to the Court of Common Pleas of the county of New Haven, and tried to the jury before Deming, J. Upon the trial it was admitted that the parties to the suit were living in the town of Madison, in this state, and that on the 25th day of July, 1886, they had been to church and Sunday school, and that the accident occurred upon the public highway as they were returning from church, about one o’clock in the…

Action for obstructing the flow of surface water upon the defendants’ land, and thereby setting it back upon the. adjoining land of the… Held: (p. 22,) “ that no action can be maintained for changing the course or obstructing the flow of mere surface water by erections on adjoining land.” And in Gannon v. Hargadon, 10 Allen, 106, the defendant placed turfs in ruts upon his own land and “ thereby caused the Avater to flow off upon the plaintiffs’ land,” and the court held…

Action for an injury from a defect in a highway; brought to the Court of Common Pleas in New Haven County, and tried to the court before Deming, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion.

Suit for the construction of the will of Richard H. Phelps, deceased; brought to the Superior Court in Hartford County, and reserved for the advice of this court. The case is fully stated in the opinion.

Suit for the construction of a will; brought to the Superior Court in New Haven County, and reserved for the advice of this court. The case is fully stated in the opinion.

Action for an assault; brought to the Superior Court in New London County, and tried to the jury before Phelps, J. Verdict for the plaintiff, and appeal by the defendant for error in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action for not keeping up an embankment along a mill pond of tbe defendant, by reason of which the plaintiff’s land was flowed and injured; brought to the Superior Court in New Haven County. The facts were found by a committee, the defendant remonstrated against the acceptance of the report, the plaintiff filed an answer to the remonstrance, and the defendant demurred to the plaintiff’s answer.

Action for setting back water upon the plaintiffs mill privilege; brought to the Superior Court in Windham County and tried to the court before Andrews, J. The following facts were found by the court: Prior to the first day of June, 1807, Elisha Brigham, Spafford Brigham and Elnathan Brigham were the owners of a large tract of land in the town of Mansfield, containing about one hundred and seventy-five acres, which was bounded westerly by the Willimantic river, and which…

<p>An act authorized the borough of New Britain to appoint three water commissioners, who were to have power to purchase for the borough a certain stream of water and the lands necessary for the construction of a reservoir, for a water supply for the borough. 3 and B sold them sundry pieces of land needed, conveying them by absolute deeds without reservation, but taking as part consideration a written agreement from the water commissioners that they should have the right to use the water of the pond for boating and fishing. After the reservoir was completed 3 and B established a pleasure resort on the shore and kept boats to let for sailing and fishing, and thus built up a profitable business. The city of New Britain, which had succeeded to all the rights of tlie„borough, finding that this use of the pond tended to pollute it and created an aversion to the use of the water for domestic purposes, passed an ordinance (under power given by the legislature) wholly prohibiting such use. In a suit brought by B, who held the rights of 3 and B, for an injunction against the enforcement of the ordinance, and for a correction of the original deeds to the borough so that the rights provided for by the agreement of the water commissioners should be reserved on the deeds, it was held:</p> <p>1. That the deeds could not he corrected, since they were precisely as both parties intended them, the agreement as to the grantors’ use of the pond being intentionally left wholly to the written agreement.</p> <p>2. That the plaintiff could not have acquired the right to the use of the pond by prescription, as his use had been under that agreement.</p> <p>3. That, as the commissioners had power to purchase lands at their discretion, they had power to fix the terms of the purchase, and had a right to make the agreement as a part of the terms of purchase.</p> <p>4 But that the ordinance of the city prohibiting the use of the pond for boating and fishing, authorized by the legislature, was a valid exercise of the police power of the state, aud its enforcement was not to be enjoined against.</p> <p>5. That if the plaintiff had any redress it was not by the present proceeding.</p>

<p>In 1817 C and others petitioned the selectmen of a town for the laying out of a highway between certain points. A lay-out of the road was made by the selectmen, the road to be incumbered by three gates, and being described as a “pent road,” and as laid out at the joint expense of C and the town, a certificate of C being appended that he accepted the location and conditions. In 1S19 the town passed a vote approving the laying out of the “ pent highway,” provided C should pay half the expense of it, and the town accounts showed a payment of haif the expense by the town. Held—</p> <p>1. That the road thus laid out was in law a highway.</p> <p>2. That it is questionable whether the selectmen had power to impose the incumbrance of the gates upon it.</p> <p>3. That a land owner who, with those from whom he derived title, had by common consent and without a claim of right kept up bars across the road for sixty years, had not acquired a prescriptive right to keep them there. Whether such a right could have been acquired by adverse user in any circumstances : Qucere. The court inclined to the opinion that it could not.</p> <p>4. That it was not necessary that the record of the lay-out should show that the selectmen found the road to be of common convenience and necessity, such a finding being involved in their action in laying it out.</p> <p>5. That it would be conclusively presumed, after such a lapse of time, that damages had been paid to the owners of land taken for the road.</p>

<p>The statute (Gen. Statutes, p. 258, sec. 1) makes a person who places obstructions on a highway liable to a penalty and gives a qui tarn action for its recovery. "Held—</p> <p>1. That the act of placing the obstruction is a tort.</p> <p>2. That under Gen. Statutes, p. 417, sec. 9, a wife who acts in concert with her husband in placing such obstructions, is liable to the penalty, unless she did it under the actual coercion of her husband.</p> <p>Valiere the act done was the putting up of bars across a highway, they having been thrown down, and the husband and wife ran to the .place together, she in advance of him and he calling to her to put the bars up, which she began to do, and on his reaching the place the two • putting the remaining bars up together, it was held that her act could not be regarded as done under his coercion.</p>

<p>A farm was let “ on shares ” for one year, the lessee to manage it for the best interest of both parties, and to pay the lessor at stated times during the term one half of all the moneys received from sales from the farm, and to pay him one half of all profits from the farm, crops and stock, with a pledge of certain stock owned by the lessee as security for his performance of the contract. Held—</p> <p>1. That the letting on shares meant that the parties were to share equally in the products of the farm.</p> <p>2. That in such cases the parties were tenants in common of the products of the farm, unless there was some provision to the contrary in the contract.</p> <p>15. That there was nothing in the present contract to prevent the application of the general rule.</p>

Action to recover of the defendant, as lessee of a farm on shares, one half of certain moneys received by him from sales from the farm; brought before a justice of the peace, and, by appeal, to the Court of Common Pleas in Netv London County, and tried to the court before Crump, J. Facts found and judgment rendered for the plaintiff, and appeal by the defendant. The case is sufficiently stated in the opinion.

Application to the Superior Court in New Haven Count}’ for a reversal of an order made by the selectmen of the defendant town, and approved by the town, discontinuing two highways.

<p>Appeal from a probate decree ordering a distribution of the estate of one Patrick Reynolds; taken to the Superior Court in Fairfield County and heard before Fenn, J. Facts found and decree reversed, and appeal by the original appellee. The case is fully stated in the opinion.</p>

Action to recover for work done and materials furnished in the erection of a high-school building for the defendant town; brought to the Superior Court in Fairfield County, and tried to the jury before Fenn, J,\ The complaint claimed $85,000 damages. The jury returned a verdict for the plaintiff for $2,180, and he appealed to this court on the ground of error in the rulings and charge of the court.

Action upon the covenants in a deed of real estate; brought to the Superior Court in New Haven County. The complaint contained four counts, the first and second of which were held insufficient on demurrer. The third count was on the covenant against incumbrances and the fourth on the covenant of warranty. To these counts the defendants filed a denial and a cross-complaint, and pleaded a set-off of sundry notes of the plaintiffs.

Action to recover the balance of a mortgage debt after a foreclosure of the mortgage; brought to the Superior Court in Windham County. Facts found and case reserved for the advice of this court. The case is sufficiently stated in the opinion.

Action to recover for preparing certain plans and specifications for buildings; brought to the Court of Common Pleas in Fairfield County, and heard before Studley, J. The complaint was as follows :— On October 2d, 1882, the plaintiff made certain sketches, plans, elevations and specifications for three buildings, and procured bids for the same, at the request and by direction of the defendant.

Action upoii a guaranty of a note and upon a judgment rendered upon the note against the maker ; brought to the Court of Common Pleas of Litchfield County and heard before Warner, J. Judgment rendered for the defendants and appeal by the plaintiffs.

Action for fraud in the sale of a horse; brought to the Court of Common Pleas in New Haven County,, and tried to the jury before Demine/, J. Verdict for the plaintiff, and appeal by the defendant for error in,the rulings and charge of the court. The case is sufficiently stated in the opinion.

Replevin, by the trustees in insolvency of Brown & Brothers, a joint stock corporation, to recover certain personal .property attached by the defendant Tuttle as a deputy sheriff, upon a writ in favor of the National Shoe & Leather Bank, which was also made defendant; brought to the District Court of Waterbury, and heard before Bradstreet, J., who rendered judgment for the plaintiffs.

The court made the following finding of facts. Held: some of which Mr. Knapp, the cashier of the bank, attended (representing the Brown & Brothers stock formerly held as collateral, and theretofore transferred to the bank), to ascertain the condition of Brown & Brothers.

Action to recover for money paid to the nse of the defendant; brought to the Superior Court in Hartford County,- and tried to the court before Phelps, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiffs. The ease is sufficiently stated in the opinion. 1. The plaintiffs were not indebted to Rogers at the time they paid the Goodman judgment.

Action for obstructing the flow of a stream by means of which the water was set back upon and injured the properly of the plaintiffs; brought to the Superior Court in New Haven County and tried to the court before Stoddard, J. The following facts were found by the court.

Action for a breach of contract by the defendants as iessees for a term of years of certain rooms in a building belonging to tbe… Held: or in respect to which a “person may be a tenant.” 2 Abbott’s Law Diet., in verbum, The statute provides that.if after the injury the tenement ‘ shall become fit for occupancy ’ during the continuance of the lease, he (the tenant) shall then pay the rent.” It is clear, therefore, that the fire did not terminate the contract of lease.…

Suit for the foreclosure of a judgment lien upon real estate of the A. & W. Sprague Manufacturing Company; brought to the Superior Court in New London County.

The application stated that the plaintiff bad been indicted in that court for murder in the second degree in killing one Thomas Murphy, and that the indictment was now pending in the court; that an… Held: stating the time and place, the names and. .residences of the witnesses, the cause and manner of the death as found, the disposition and place of burial of the dead body, and a careful description of all dead bodies not identified before burial.

<p>The schooner S, with a cargo of coal, consigned to a railroad company and to be delivered at its docks in New Haven, arrived at that port and the master reported to the agent of the company on January 31st. The agent directed him to discharge at Shop Dock, one of the docks owned by the company, but to wait for another discharged vessel to haul out and for another to haul in and discharge, and requested him while waiting to lie at the mouth of the channel, three quarters of a mile from the dock. While lying there the vessel was frozen in, and on the 5th of February} when notice was sent the master to haul in, he could not find a tug willing to take him in, and the agent refused to break the ice. The vessel lay in this condition till the 15th, when, by direction of the agent, she was taken to Belle Dock, another of the company’s docks, and there discharged. She could at any time have been taken to this dock, as the daily passage of steamboats kept the channel open, and the master proposed to take her there, but the agent would not consent. In a suit of the owners for demurrage, the commencement and rate of which were fixed by the bill of lading, it was held—</p> <p>1. That the consignee had the right to direct as to which of its docks the vessel should discharge at, if accessible in a reasonable time and by reasonable means.</p> <p>2. That as a general rule a vessel takes the risk of detention by a change of weather, or other cause, after her arrival at the port of delivery and before her reaching the dock.</p> <p>3. But that as the detention in this case was not owing to any voluntary act of the master, but to his lying at the mouth of the channel at the request of the consignee, the latter took the risk of a detention by vis major, and was liable for demurrage.</p> <p>The bill of lading provided that twenty-four hours after arrival and notice to the consignee, there should be allowed for receiving the cargo one day for every hundred tons, and after that demurrage should be paid at a rate stated. Held that it would be taken to be the intent of the parties that the consignee should have twenty-four hours after notice in which to select a suitable place of discharge; and that there was an implied promise on the part of the consignee that the running days should commence at the expiration of the twenty-four hours.</p>