author: Hinman, J.

text:
    Nicholson vs. The New York and New Haven Railroad Company.
    The charter of incorporation of a railroad company provided, that the company might enter upon and use all such real estate as should be necessary for them ; that they should be holden to pay all damages that shoflld arise to any person or persons thereby, and prescribed the manner of assessing the damages) if the person or persons to whom such damages should arise, could not agree as to the amount of the same. It also contained the following provision: “ Whenever for the construction of their said railroad, it shall become necessary to intersect or cross any stream of water, or water-course, or any road or highway, it shall be lawful for said company, to construct said railroad across or upon the same, but said company shall restore the said stream or water-course, or road or highway, thus intersected, to its former state, or in sufficient manner not to impair its usefulness.” A public street, in a city where it was intersected by such road, was carried over it on a bridge, and raised on each side of the bridge by embankments, so as to accommodate its height to the height of the bridge. It appeared, that the public safety required that the railroad should pass under the street, and that the change made in the street by such bridge and embankments, was one of the alterations provided for in the charter of the company. B, owning land with buildings thereon, lying upon each side of said street where it was so raised, and no compensation having been made to him, and no damages assessed therefor, brought his action against the company, for the injury caused by the erection of such embankments. It was held, 1. That the power to regulate, alter and repair highways, might be delegated'by the legislature, to subordinate corporations, subject to the liability of making compensation for the property taken and injury occasioned. 2. That the acts of the defendants in question, being for the purpose of making one of the alterations in a highway contemplated in the defendants’ charter, were authorized thereby. 3. That although the plaintiff might recover on'a count in trespass, for any appreciable, incidental damages, occasioned by the acts complained of, the defendants were not liable therefor, of course, and as prima facie trespassers, and that it was a question for the jury to decide, whether the plaintiff had sustained any such damages thereby, or had not.
    The action of trespass is a proper remedy for such damages.
    Where in such action, the judge charged the jury, that the plaintiff could recover, of course, on a count in trespass, but that the damages should be nominal, unless special damages were proved, and the jury returned a verdict for $3000 in favor of the plaintiff; held, that although the charge was incorrect, inasmuch as it withdrew from the consideration of the jury the question, whether the plaintiff was injured or not, yet, as the defendants did not suffer from the ruling of the court, they were not, on that account, entitled to a new trial. Held, also, that as the amount of such damage was a matter of opinion, in relation to which the witnesses differed greatly, and there was no evidence that the jury had acted corruptly or disregarded the instructions of the court, the defendants were not entitled to a new trial, on the ground of excessive damages.
    This action was brought against the New York and New Haven Railroad Company, to recover damages for injury to the plaintiff’s land, which was situated on both sides of Cherry street, in the city of New Haven.
    The declaration embraced two counts, one of which was in trespass, and the other, trespass on the case.
    The defendant pleaded the general issue. The cause was tried at New Haven, October term, 1851.
    Upon the trial it was proved and admitted, that the plaintiff was the owner in fee, of two lots and the buildings thereon, in the declaration described, and that while he was so owner,' the defendants made an embankment on that part of Cherry street which lies between said lots of the plaintiff, said Cherry street having been long a public highway. The plaintiff’s land extended on each side, so as to meet at the center of said street, subject to the right of the public to the same, as a public highway. The land and road of the company extended to, and lay adjoining said lots of the plaintiff; on the south-easterly side of the same. Cherry street passes from State street to Union street, and the depot building of the defendants adjoins Union street on the south-east and.Cherry street on the south-west. The depot building of the defendants is separated from the northerly lot of the plaintiff, by the space occupied by the trenches of the railroad. The railroad of the defendants was constructed across Cherry street, in the bed of a canal which had been discontinued, and over which the street was carried by a bridge. The defendants found it necessary, for the safety of the public, to have their road pass under Cherry street, and for that purpose, it became and was necessary, that the bridge at that point, should be raised as high as it was raised by the defendants. The bridge being raised, it became necessary to make the embankment in Cherry street, and this alteration was one which is provided for in 'the defendants’ charter. The embankment was about feet high at the bridge, and the grade descended to the grade, at the south-eastern side of State street. When the embankment was made by the defendants, the plaintiff owned and occupied a brick store on his north lot, adjoining the rear of which, was a wooden addition opening into the same, near the middle of which, on Cherry street, was a door for receiving and delivering goods, the sill of which was about three feet above the sidewalk. On the south lot was also a brick store, in the rear of which was an old wooden building, fronting on Cherry street, with a door in front, and also one on the side, communicating with a door in the back end of the store. There was no door in the principal store, on the main floor, opening into Cherry street, but there was a cellar door, slanting outward, through which goods could be received into the cellar and delivered out. The embankment, on the north side, came above the sill of the door in the wooden building. On the south side, it covered the cellar door and prevented access to the wooden building in the rear, from Cherry street.
    The charter of said railroad company provides “ that for the purpose of constructing said road, they may lay out the same, not exceeding six rods wide, through the whole length, and for the purpose of cuttings and embankments, and of necessary turn-outs, and for obtaining stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road,” with a proviso, “ that all damages that may be occasioned to any person or corporation, by the taking of any such and or materials aforesaid, shall be paid for by said company.” It afterward declares “ that said company shall be holden to pay all damages that may arise to any person or persons whatsoever.” It then proceeds to prescribe the manner in which damages shall be assessed, in case the person or persons to whom damage may so arise, and the company, can not agree as to the amount of the same. In a subsequent section, the company is authorized, whenever it shall be necessary for the construction of their road, to intersect any road or highway, to construct said railroad across or upon the same, but they are required to restore said road or highway, thus intersected .“to its former state, or in sufficient manner not to impair its usefulness.”
    The plaintiff offered evidence tending to show that, the embankment had compelled him to raise the north store about three feet, and to raise the building in the rear of it about one foot; that he was also compelled to close the door, opening from the wooden building into Cherry street, and open another, near its junction with the wooden building; that the expense of this was dollars. That the door on Cherry street was not as convenient as before ; that the-elevation of the floor of the back building, about a foot higher than the floor of-the other, was an inconvenience; that the raising the building rendered it necessary to have three steps to the front door, entering by a recess into the store, which rendered the access inconvenient, and that there was damage, over and above the expense, to the amount of dollars. He also offered evidence tending to show, that he was obliged to raise the store on the south lot about two feet; that there was the same inconvenience about the front door; that the use of the cellar was in a great measure cut off, and that he was obliged to remove the building in the rear, and, to enable him to improve the rear property, he was obliged to erect an additional building of brick; that the necessary expense, other than the expense of the new building, was , and that the damage, over and above the necessary expenses, was . The plaintiff further claimed, that, inasmuch as it was admitted, that the defendants had not had any damages appraised to the plaintiff, according to the provisions of their charter, the plaintiff could recover, on the count in trespass, whether he proved any actual damage or not.
    The defendants offered evidence tending to show, that the plaintiff had sustained no actual damage ; that the stores of the plaintiff, by being raised, presented a much better appearance than they would have had ; that the south store did not need to be raised at all, but could have been used as conveniently and profitably as before, without being raised. That the building in the rear, was a mere storehouse with only an outside covering, only a part of which stood on the land of the plaintiff; that it might still have been used in connection with the store; that the cellar door was of but little account, and that the embankment enabled the plaintiff to erect an addition to his store in the rear, with a floor on the same level with the floor in front, with a door opening conveniently into Cherry street, which would not have been done, as the street was, before the embankment was made; that there was no necessity of raising the rear building on the north side, any higher than that in front, so that the floors might have been on a level; that, if the doors in front were less convenient for one purpose, they were more so for another, and that, aside from any benefit which the building of the railroad was to the property, there was no damage to the buildings or property, over and above the' necessary expense of adapting them to the situation of the streets, after the construction of the railroad.
    The defendants also offered evidence to show, that the property of the plaintiff in question had, since the construction of the railroad, increased in value, to a greater amount than the whole expense of the plaintiff, which had been incurred in consequence of the acts of the defendants; that this was owing, in part, to the general benefit which the city as a whole, derived from the construction of the railroad, but chiefly, to the proximity of the railroad and its depot, to the property in question ; and prayed the court to instruct the jury, that if, owing to the latter cause, the plaintiff’s property was worth as much as it would have been, if no railroad had been built and no embankment had been made by the defendants, and so the plaintiff had sustained no actual damage, the plaintiff could not recover, on the count in case ; and also, that he could not recover on the count in trespass, inasmuch as the acts in question were authorized by the charter of the defendants, subject only to a liability to pay damages, where persons had actually sustained them. The defendants further claimed, that the court should charge the jury, that if they should find for the plaintiff, they ought to find only such damages as the plaintiff had sustained, taking into consideration the beneficial effect of the construction and use of the railroad upon the premises of the plaintiff. The plaintiff claimed, that the beneficial effects of the railroad and depot upon the plaintiff’s property, could not be taken into consideration. The court charged the jury as follows
    As to the first claim made by the plaintiff, that on the facts conceded and proved, the plaintiff could recover, of course, on the count in trespass, the court instructed them, he could, but the damages should be nominal, unless special damages were proved.
    And, as to the right to recover for the damages stated in the second count, in case, the court instructed them, these were only incidental or consequential to the construction of said embankment, admitted to be a necessary part of said railroad, and made under the provisions of their charter. That, inasmuch as the plaintiff claimed to recover for this, as done by the defendants, the jury might and should, under this charter, take into the estimate of damages, and allow the defendants, not any general advantages to the city and citizens at large, but the local, personal and particular advantage to the plaintiff’s premises, occurring from the construction and use of the railroad and embankment upon the same.
    The jury returned a verdict in favor of the plaintiff, for 3000 dollars damages, and his costs; and the defendants moved for a new trial, on the grounds of a misdirection, and because the verdict was against the evidence in the cause.

      Dutton, and Kimberly and Beach,

    contended, First, That the court ought not to have instructed the jury, that the “plaintiff, on the facts conceded and proved, could recover, of course on the count in trespass, without proving damage.”
    The facts were, that the plaintiff owned two lots, divided by Cherry street, and the railroad of the defendants was located across Cherry street, next adjacent to the lots of the plaintiff. The defendants, in the construction of their road, found it necessary, for the safety of the public, to have their railroad pass under Cherry street; and the acts complained of in the second count, were done pursuant to the tenth section of the charter of said company, in “ restoring” said Cherry street “ to its former state, or in a sufficient manner not to impair its usefulness.”

      Secondly, If the plaintiff has sustained any special damage, by reason of the raising of the street, the defendants, not having had the damage assessed, are liable; but we claim that, without such damage proved, there is no liability.

      Thirdly, The defendants can not be made liable, on the count in trespass, unless their acts were wrongful, at the time they were done, or, being rightful at the time, have become wrongful, by reason of some omission of duty on their part.
    I. Their acts were not wrongful, at the time they were done. Their charter authorizes them to construct their railroad across or upon any highway it may be necessary to cross, and authorizes and compels them to restore such highway to its former usefulness. Private Acts, 1844, 65. Bradley v. New York and New Haven Railroad Co., 21 Conn. R., 310. And the facts conceded show, that the acts complained of, were done under, and in pursuance of, such authority.
    II. There was no omission of duty, on the part of the defendants, by which these acts became wrongful. The only omission claimed is, that the defendants “have not had any damages appraised to the plaintiff, according to the provisions of their charter.” ‘The charter provides, that the assessors shall appraise damage to land “ taken or injured.” Private Acts, 1844, 62: The land was not “taken,” nor is it claimed to have been. The only other alternative, calling for any action of the assessors, is that of “ injury.” And the ground of our complaint is, that, by the ruling of the court, this question is expressly withdrawn from the jury, and they are instructed to find for the defendant, although there was no “ injury,” no damage.

      Fourthly, It is no answer, to say that we are in no worse position, in consequence of such ruling. The decision ex-tends beyond the individual case, and is pregnant with mischief. A party is always injured, by withdrawing from a jury all possibility of a favorable verdict.

      Fifthly, The damages, awarded by the jury, were excessive, contrary to the weight of evidence, and in disregard of the instructions of the court.
    A new trial will always be granted, where it appears that the instructions of the court, upon matters of law, have been disregarded by the jury. Thomas v. Hatch, 3 Sumner, 184. Wendell v. Stafford, 12 N. Hamp. R., 171. The evidence detailed in the motion shows, that the jury must have disregarded the instructions of the court, “that in their estimate of damages, they should allow the defendants the local, personal, and particular advantage to the plaintiff’s premises, occurring from the construction and use of the railroad. The weight of the evidence is, that the property was benefited, to an equal or greater amount, than the sum expended.

      Baldwin and R. I. Ingersoll, contra,
    contended, 1. There was no error in the charge of the court, as to the right to recover, on the count in trespass. Trustees of the Presbyterian Society in Waterloo v. Auburn and Syracuse Railroad Company, 3 Hill, 567. Seneca Road Company v. Auburn and Rochester Railroad, 5 Hill R., 170. Unless the railroad company owned the land, or had the general rights of owner, or had taken measures for the payment of damages, they must be considered as trespassers. Bradley v. New York and New Haven Railroad Co., 21 Conn. R., 312. In New York, it has been held, that when the defendants have not 'followed the directions of the act, relative to the compensation to be made to the owners of land, through which a turnpike road has been made, they were trespassers. People v. Hinsdale and Chatham Turnpike Co., 2 Johnson’s R., 190. Approved in Hooker v. Northampton Co,, 15 Conn. R., 324.

      Secondly, The charge could not have injured the defendants, for the court instructed the jury, that the damages for the trespass should be nominal, unless special damages were proved. The jury having found, that there were special damages, the plaintiff would be fairly entitled to them, under the count in case, irrespective of the trespass, and substantial justice having thus been done, the court will not order a new trial. Such has been the uniform course of decisions in this court, in analogous cases.

      Thirdly, The defendants do not complain of the rule of damages given to the jury, by the court, but that the damages awarded by the jury “ were unreasonably excessive, and contrary to the weight of evidence in the case.”
    Even if the court should be of the opinion, that the verdict was against the weight of the evidence, they would not grant a new trial; for, as was said in the recent case of
      Clark v. Whitaker, 19 Conn. R., 319, “It is necessary, that the verdict should, in the opinion of the court, be manifestly and palpably erroneousand, “ it is not sufficient for the defendants, who seek a new trial, for the excessiveness of the damages, merely to raise a doubt, whether they are not too large; but it is incumbent on them, to show, affirmatively and most satisfactorily, that they are so, and to what extent.”
   Hinman, J.

The declaration contains a count in trespass,for making an embankment on the plaintiff’s land, in Cherry street, in New Haven, where that street divides the land into two separate lots, one being on each side of it. The defendants’ railroad is not constructed upon the plaintiff’s land, but is bounded by it, where it crosses Cherry street, as far as his land extends.

The motion states, that the public safety required, that the railroad should pass under Cherry street; and for that purpose, it was necessary, that the street should be carried over it, by means of a bridge, and that it should be sufficiently filled up, at the point -where it crosses the plaintiff’s land, to accommodate its grade to the height of the bridge. Such alterations of highways, where the railroad is made to cross them, are contemplated in the defendants’ charter; and, as the embankment in question was made, for the purpose of restoring Cherry street to its former state, ■“ or in a sufficient manner not to impair its usefulness,” it must be considered as licensed, or authorized thereby. The plaintiff, however, claimed, that, as no damages were appraised or paid to him therefor, under the charter, he was entitled to recover them, in this action. And he further claimed, that he was entitled to recover, on the count in trespass, whether he proved any actual injury or damage, or not.

So far as this case is concerned, an examination of the latter clause of this proposition, has become wholly unnecessary ; because, the jury having found a substantial injury, to the extent of $3,000, for which they gave the plaintiff damages, for the erection of this very embankment,—no other injury having been claimed by him,—it is obvious, that the claim did not apply at all to the case proved, and the defendants could not have suffered, by the ruling of the judge in its favor; and so they are not entitled to a new trial here, although the case might have been different, had there been a verdict for nominal damages merely. As the point, however, may frequently arise in cases of this sort, and is fairly raised upon this motion, we have determined to express our opinion upon it. Now, there is no doubt, that, for any wrongful invasion of another’s property, some damage necessarily results; and the law does not require any distinct injury to be shown, in order to justify a recovery. It considers the infringement of the rights of a party, an injury, for which damages must be given ; because upon no other principle can one’s rights be protected. Every infringement of them must, to some extent, endanger the right itself, and a continuance of the infringement would, in time, deprive the party altogether of his right. If, therefore, the acts of the defendants had been committed upon property not covered by a highway, the plaintiff’s claim would, without doubt, have been correct. 'He would have a right to protect his own exclusive possession of it; and for that purpose, must, of course, have the right absolutely to exclude all others from it; and, whether the acts were injurious to him or not, would not depend upon whether his property was injured, in a pecuniary point of view, no matter even if it was bettered and improved in value. Still, he would have the right to say, that his close was broken, and his possession infringed upon, and for such an invasion of his right, the law would give him damages. But in regard to the plaintiff’s land, included in this highway—Cherry street,—he does not, we think, stand in such a relation to that, that he can treat the mere entry of the defendants upon it, as a breach of his close, and, therefore, an infringement of his right. To have that effect, the entry must be unauthorized.

We do not deny or dispute the doctrine of the cases cited by the plaintiff, in support of his claim; but we do not see that they apply to this case. No doubt, he still owns .the fee of this land; and the public, by establishing the highway, only acquired a right of way over it, with the incident right of repairing it in a reasonable manner. Our own case of Chatham v. Brainard, and the cases on which it rests, decide that very fully; and if here, as in the New York cases, the defendants had laid their railroad over this land, and had laid down their timbers and rails upon it, and had thus appropriated it to their own use, we do not deny that they would be liable for such an entry. In such a case, the subjecting of the plaintiff’s property to an additional servitude, is an infringement of his right to it, and is therefore an injury and damage to him. It would be a tak-' ing of the property of the plaintiff, without first making compensation, which the defendants’ charter does not authorize ; and we are not now about to say, that it would be legal or constitutional, if it did. But, the acts complained of in this cafe, are precisely of the same character, as a portion of the defendants’ acts in the case of Bradley, 21 Conn. R., 294, which we held not to constitute a taking, within the meaning of their charter, or of the constitution of the state.

To return, then, to the question on which this point turns : were the acts of the defendants authorized in the first place, by their charter? and if so, then, were they, by the general law of the land, illegal, notwithstanding such authority ?

By the tenth section of their charter, it is provided, that “whenever, for the construction of their railroad, it shall become necessary to intersect or cross any stream of water, or water-course, or any road or highway, it shall be lawful for said company to construct said railroad across or upon the same, but the said company shall restore the said stream, or water-course, or road or highway, thus intersected, to its former state, or in sufficient manner not to impair its usefulness.,r This section, it must .be admitted, in direct terms, authorizes the construction of the railroad across this street, and it throws upon the company, the burden of restoring the street to its former state, so far as not to impair its usefulness. To do that, the motion show's, that it was necessary to build the bridge, and guard the street so as to make the bridge accessible ; otherwise, the usefulness of the street would have been destroyed.. The work was done, then, under the express authority of the legislature. Is there any restriction in the charter, in regard to the work, or any condition which must be performed before it is done 1 We discover none in regard to this work, if, in doing it, no one is injured. We have seen that, by it, the plaintiff’s property was not taken. The defendants claimed no right to take, and did not profess to take it; they performed the work, as a burden thrown upon them, in consideration of their permission to build their road across Cherry street. That they built their railroad, for their own private purposes, can make no difference with this question. Suppose the legislature had incorporated a company, with power to erecff a mill, to be supported by the toll taken from its customers, and had authorized the company, to cross highways, with their canal or ditch, provided they restore them to their former condition, the question would be the same as here. If they take property, it must be paid for; if they injure it, this charter provides that they must pay for that; but, if they neither take nor injure it, there is not, clearly, anything in this charter, that compels them to pay.

The question, then, resolves itself into a question of power in the legislature, to alter the grade, or authorize a corporation, or individuals, to alter the grade of a highway. But the legislature may construct and establish new highways, or it may delegate this power to subordinate bodies or corporations, as, to the county court, to towns and cities, and to turnpike companies ; and, for convenience, it is generally so done. But this does not divest the legislature of its power; and if it can directly, through its own immediate agents, make new highways, this general and greater power, of course, must include the lesser power to regulate, alter or repair them,—and this power is only limited by the constitutional provision, that compensation must be made for property taken for this object,—as it must also for any other public object. We agree with the defendants’ counsel, therefore, that the ruling and charge of the court, on this point, was incorrect, inasmuch as it withdrew from the consideration of the jury, the question of the plaintiff’s injury, and instructed them to find a verdict in his' favor, whether he was injured or not; and, had the verdict been such as to show, that the defendants had been, or might have been, injured by the ruling, we should have felt bound to grant them a new trial.

We, however, have been unable to see, that the defendants could have suffered at all, from the ruling; and we have only examined the point, that it may be understood, that we do not sanction the ruling, as a correct exposition of the law. The defendants admit, as they must, that if the plaintiff has sustained any appreciable damage, he has a right to recover for that; and it is not denied, that it is proper for him to recover for it, on this count. It is not necessary or very material for us to decide, whether trespass or case would be the appropriate remedy, because the plaintiff has declared, as by our statute he may, in both forms, for this injury. Still we do not see, why trespass, with force, is not the proper remedy. We think it is; and that he can recover in that form, if he can recover at all. He owns the land, and, subject to the public easement, is in possession of it. The injury to it, by the defendant, is direct, by his entering upon it, and depositing materials there. So far as he is justified in this, in consequence of there being a highway there he is not guilty of anything; but if he goes beyond his justification, then he is guilty of a direct trespass; his justification fails; and he is in the same condition, as if he had made the same entry, upon any separate inclosure of the plaintiff, not subject to any public easement. Hence, all the actions for such injuries have been trespass. Chatham v. Brainard, 11 Conn. R., 60.

A new trial is asked for, on the ground, that the damages given were excessive, and contrary to the weight of the evidence. It is said, that the jury must have disregarded the instruction of the court, “ that in their estimate of damages, they should, allow the defendants the local, personal, and particular advantage to the plaintiff’s premises, occurring from the construction and use of the road.” If it could be seen, that this was so, then undoubtedly the defendants would be entitled’to a new trial, on that ground, unless, indeed, the instruction given was itself erroneous ; but this is not claimed, and could not be. The rule of damages is given in the defendants’ charter, and is a rational and just rule. When the damages are assessed, by freeholders appointed for. this purpose, in the manner prescribed by the charter, they are to inquire into the extent of them, and they are to “ assess just damages to the person or persons, whose real estate may be taken or injured.” The language is substantially the same as is used, in regard to the laying out of highways, by selectmen or the county commissioners,—in which case, we believe the practice is, in the assessment of damages, to consider the local and peculiar benefit that the proprietor, whose land is taken, receives by the improvément, in respect to his lands not taken, but which are contiguous to the road; damages, thus assessed, are properly considered the only “just damages.” If this would have been the rule, had the damages been assessed by freeholders, it seems to be the proper rule, in a case like this. Now, damages made up in this way, must of necessity be mere matter of opinion. The only precision there could be in the case, was, in regard to the expense • the plaintiff had been at, in raising his stores, so as to conform to the improved grade of the street. He had expended a considerable sum for that purpose, of which he was able to show the amount. But the injury to his buildings, caused by the necessity of raising them, and the peculiar benefit of the railroad to his property, to be taken from the estimated and actual injury, were of course, mere matters of opinion. The witnesses differed very much in regard to them. There was evidence, which went to show that the damages were not estimated high enough, and there was evidence, that went to show they were estimated much too high. It is not to be expected, on such a subject, that witnesses can agree. We probably should have estimated them less than were in fact given; but on such a subject, we think, as a general thing, the finding of the jury must be final; and we see nothing in this evidence, to induce us to believe, that the jury have acted corruptly, or disregarded, in any respect, the instruction of the court.

We therefore do not advise a new trial.

In this opinion the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.

New trial not to be granted.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Griswold vs. Allen.
    A executed and delivered to B, a warranty deed, which, after describing a certain tract of land, proceeded as follows:—“ with the privilege of erecting and continuing a dam across the river, so far as my land extends, at the upper end of my river meadow, in said M, and to cut, excavate, and make a raceway or water-course, four feet wide at the bottom, with usual sloping banks, across my said meadow and land, and to leave the dirt and stone excavated on my land, by the side of said race, to the above described piece of land, and make all necessary embankments, walls and troughs, to convey as much of the water from said river to said piece of land,.as the said B shall choose; reserving to myself the privilege to pass and repass said raceway where I please, without injury to said B.” It was held, that such deed granted the right only to make the drain and raceway therein described, and not the right to the use gf as much water as would flow through such raceway ; and therefore, that where a riparian proprietor, below the raceway, evicted the grantee from the right of diverting the water of the river through the same,^an action for damages on the covenants of warranty contained in such deed, could not be sustained.
    Whether such deed implied a license to the grantee, to use the water of the river, to the same extent to which the grantor had a right to use it, at the time the deed was given.—Qu.

    This was an action on the covenants of a warranty deed, brought to the superior court for New Haven county. The declaration contained three counts. In the first count, the plaintiff averred, that on the 15th day of April, 1831, the defendant, being then seized and lawfully possessed in his own right, in fee simple, of a certain piece of land, situated in Meriden, containing about ten acres, bounded westerly on Quinnipiac river, so called, and extending to the center of said river, executed and delivered to the plaintiff, a deed of the southerly part of said piece of land, with a privilege in the northern part of the said piece of land, said privilege commencing on said river, at a point south of the place where the northern boundary of the defendant’s land strikes said river, and running southerly across the defendant’s land, to the piece so deeded to the' plaintiff;—which deed, under the hand and seal of the defendant, was of the form following, to wit:
    “ Know all men by these presents, that I, Levi Allen, of Meriden, in the county of New Haven, and state of Connecticut, for the consideration of five hundred dollars, received to my full satisfaction, of Harry Griswold, of the town, county and state aforesaid, do give, grant, bargain, sell and confirm unto the said Harry Griswold, his heirs and assigns, forever, a certain piece of land, situate in said Meriden, containing in quantity five acres, and is bounded northerly on my own land ; easterly on the heirs of Charles Baldwin, deceased, and the river; southerly on the river ; and westerly on my own land and the river, with the privilege of erecting and continuing a dam across the river, so far as my land extends at the uper end of my river meadow in said Meriden, and to cut, excavate and make a raceway or watercourse, four feet wide at the bottom, with usual sloping banks, across my said meadow and land, and to leave the dirt and stone excavated, on my land, by the side of said race to the above described piece of land, and make all necessary embankments, walls and troughs, to convey as much of the water from said river to said piece of land, as the said Griswold shall choose; reserving to myself the privilege to pass and repass said raceway where I please, without injury to said Griswold.
    “ To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto the said grantee, his heirs and assigns, forever, to his and their own proper use and behoof. And also I, the said grantor, do, for myself and heirs, executors and administrators, covenant with the said grantee, his heirs and assigns, that at and until the unsealing of these presents, I am well seized of the premises as a good, indefeasible estate in fee simple; and have good right to bargain and sell the same, in manner and form as is above written, and that the same is free from all incumbrances whatsoever. And furthermore, I, the said grantor, do, by these presents, bind myself and heirs forever to warrant and defend the above granted and bargained premises to the said grantee, his heirs and assigns, against all claims and demand whatsoever.
    “ In witness whereof, I have hereunto set my hand and seal, this 15th day of April, A. D. 1831.
    LEYI ALLEN. [n. s.]
    “ Signed, sealed and delivered, in presence of
    Benajah Andrews.
    Isaac J. Hough.”

      “New Haven County, ss. Meriden, 15th day of April, 1831.
    “ Personally appeared Levi Allen, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed, before me.
    BENAJAH ANDREWS, Justice of the Peace.”
    The declaration then alleged, that by said deed, the defendant covenanted and promised to and with the plaintiff, that when said deed was delivered as aforesaid, he had good right to bargain and sell to the plaintiff the right forever, of taking from said Quinnipiac river, at the place mentioned in said deed, and of conveying through the raceway therein specified and provided, whenever the plaintiff, his heirs and assigns should choose so to do, as much water as could be drawn from said river, by means of said raceway, which, the plaintiff says, would be sufficient to constitute a stream of the dimensions of said raceway. And that the defendant further covenanted by said deed, and promised to-and with the plaintiff, that he would warrant and defend his, the plaintiff’s, right to the privilege of taking the water to the extent and in the manner aforesaid, from said river, against all claims and demands whatsoever, as by said deed, ready in court to be shown, would fully appear. And that, relying upon said covenant of the defendant, the plaintiff entered upon the possession of said tract of land, and expended a large sum of money, to wit, three thousand dollars, in erecting buildings and machinery thereon, which would be entirely valueless without said water privilege; that he further expendéd a large sum, to wit, five hundred-dollars, in excavating the raceway in said deed mentioned; and that he invested large sums of money in the business of manufacturing in said building. Yet that afterward, one Daniel Parker, who owned and occupied a piece of land on the opposite side of said stream, above the said land of the plaintiff, and below the point where the water was taken from said river, by means of said raceway, by the plaintiff, brought an action against the plaintiff, for diverting the water from said stream, and from his said land, by drawing the same through said raceway. The declaration then set out circumstantially the proceedings in said action, and further alleged, that on the second Tuesday of October, 1846, final judgment was rendered in favor of the then plaintiff to recover of the then defendant the sum of $ damages and costs, taxed at ; and thereupon the plaintiff relinquished all right to said water privilege, and gave up the same, and was obliged to pay, and did pay, said damages and costs. It then averred, that, to save himself from further and greater loss and damage, to which he, the defendant, by reason thereof, would otherwise have been subjected, he purchased of the said Daniel Parker the right-of taking the water from said river, in the manner specified in said deed, so far as the said Daniel Parker could dispose of the same, and paid him a large sum, to wit, five hundred dollars, therefor. He also bought of all the other proprietors of land adjoining said stream, their interest in said privilege, or their right of preventing the plaintiff from occupying the same, and paid a large sum, to wit, two hundred dollars, therefor. It further averred, that the commencement and continuance of said Parker’s suit, caused a great damage to the plaintiff, by interrupting his business, and preventing him from extending and enlarging his manufacturing operations, as he otherwise would have done, in a profitable manner, by reason of which he sustained damages to the amount of one thousand dollars. The "plaintiff further averred, that the said Parker, when said deed was delivered to the plaintiff, and long afterward, had the right of preventing the plaintiff from taking said water, and so the plaintiff said., that the defendant had broken his said covenant; that he had not the right to bargain and sell to the plaintiff the right of taking the water from said river as aforesaid; that he had not warranted and defended the said right as aforesaid, but that the plaintiff had been evicted from the same, by said Parker, to wit, on the 20th day of October, 1844, and had sustained great damage thereby.
    In the second count, the plaintiff averred, that the defendant, by a certain other deed of the same tenor and description, as in said first count is contained, on the 15th day of April, 1831, covenanted and promised with and to the plaintiff, that he, the defendant, would warrant and defend all the premises in said deed described, as being therein and thereby conveyed to the plaintiff against all claims and demands whatsoever; whereas the plaintiff says, that the defendant hath not kept his said covenant and promise, but hath broken the same ; because he says, that the defendant hath not defended the plaintiff against all claims to the water.of said river, which, by said deed, the plaintiff was to have the privilege of taking from the same; but that one Daniel Parker, of said Meriden, had, when said deed was given, and for more than ten years thereafter, continued to have, the right of having the same water flow in its natural current by and below the place in said deed specified, at which the plaintiff was to have the privilege of diverting the same,—and the said Parker enforced his said right, and evicted the plaintiff from the same, and from the privilege in said deed attempted to be conveyed, the plaintiff being in possession thereof, to wit, on the 20th day of October, 1844; and the plaintiff has, by reason of the premises, sustained great loss in his business, and has been deprived of said privilege, which he says, was, at the time of said eviction, of the- value of three thousand dollars.
    In the third count, it was alleged, that when said deed was executed and delivered to the plaintiff, one Daniel Parker had the right of having the water in said river flow in its natural current to the land of the said Parker, situated on said stream, below the place on said stream at which the plaintiff, by said deed, was to have the privilege of taking said water from the same, and that the said Parker continued to have such right, until on or about the 20th day of October, 1844, when he disturbed the plaintiff, by reason of his said right, in the use and enjoyment of said privilege, and wholly deprived him of the same, and evicted him from that portion of the premises attempted to be conveyed by said deed, which privilege so attempted to be conveyed, the plaintiff says was then of the value of three thousand dollars.
    To this declaration the defendant demurred. The court adjudged the declaration insufficient, and thereupon, rendered judgment for the defendant. To obtain a reversal of this judgment, the plaintiff, by motion in error, brought the record before this court.

      Dutton, R. I. and C. R. Ingersoll and L. E. Munson, in support of the motion,
    claimed, 1. The defendant, by his deed, covenanted, that the plaintiff should have the privilege of talcing, by the ditch, as much water as he should choose. Everything which is necessary to carry into effect the object which the parties had in view, will, if necessary, be implied. Yocum v. Barnes, 8 B. Monroe, 496. Lovering v. Lovering, 13 N. H. R., 513. 5 Met., 431. Miller v. Scolfield, 12 Conn. R., 335.
    2. The object of the grantee, was, to secure a water privilege. The fair import of the language used, is, that the right to the water was to pass to the grantee. A ditch without water, would be useless.
    Courts have repeatedly gone as far, and in some instances much farther, in implying covenants, than the plaintiff requires. Coe v. Talcott, 5 Day, 88. Watson v. Chew, 6 Watts, 362. Webb v. Plummer, 2 Barn & Ald., 746. Earl of Shrewsbury v. Gould, 2 B. & A., 487. Comyn’s Dig. Cov. A. 2.
    3. The defendant covenanted, that he had good right to bargain and sell whatever he did sell. As he sold the privilege to take as much water as the plaintiff pleased, from the river, and as the plaintiff did not obtain that right by the deed, the defendant is liable on this covenant.
    4. The defendant warranted the title to all that he sold. The principal thing' bought and sold was the water privilege.
    1st.. The covenant of warranty will attach to such an incorporeal hereditament as a water-course. Bally v. Wells, 3 Wilson, 26. 1 Smith’s Leading Cases, 102. Coke L., 366, Com. Dig. Guaranty, E. Angell on Water-courses, 283. Jordan v. Wilson, 6 Com. L. R., 420. 2d. The case of Mitchell v. Warner, 5 Conn. R., 497, which seems at first to contain a contrary doctrine, is not inconsistent with this rule. That merely decides, that a warranty of land does not embrace the water on it. Judge Hosmer admits, that a covenant relating to an easement, would be good between the parties. 5 Conn. R., 519. But the doctrine of this case has been denied. Angel on Water-courses, 283. 1 Smith’s Leading Cases, 102.

      Baldwin, Kimberly and Beach, contra,
    contended, That no right or privilege to use the water of Quinnipiac river, was •intended to be, or was in fact, conveyed to the plaintiff.
    1. The subject matter of the deed, is the five acre piece of land which is described and bounded. .
    2'. The privilege of erecting a dam at the upper end of the meadow, across the river so far as the grantee’s land extended, i. e., to the center of the stream, and to make the raceway, embankments, &c., is, and wás, a mere privilege to be exercised on the land of the grantor, above the granted premises, of which the grantee could avail himself, or not, as he chose.
    3. The privilege granted is, not to convey the water, but to make a raceway across the grantor’s meadows, of sufficient size to convey the water to the five acre piece described in the deed.
    The object for which the privilege of constructing the raceway, &c., might be wanted, to wit, the conveyance of water from the river, is spoken of, not by way of asserting any right in the grantor to convey the water, but simply as descriptive of the size of the raceway.
    4. The fact, that the stream was then running in its natural course, and that the grantor refers, in his deed, to the ownership of another, across the stream, and limits the privilege of constructing the dam to the center of the river, is conclusive evidence that no water privilege was intended to be conveyed. Platt on Covenants, 3 Law Library, 136. Butterfield v. Marshall, 1 Lutw., 192. 7 Petersdorf’s Abr., 219. Pomfret v. Wicoff, 1 Saund., 321. 1 Vent. 26, 44. 1 Sid., 429. 2 Keb., 505, 543, 569. Rhodes v. Bullard, 7 East, 116.
   Storrs, J.

The oqly question made before us, in the argument of 'this case, is, as to the extent of the subject matter embraced in the covenants of the defendant, contained in the conveyance from him to the plaintiff. Those covenants are exactly co-extensive, in that respect, with the premises or things previously granted -by the deed. By determining, therefore, what was so granted, we shall ascertain what is within the scope and intention of the covenants.

The plaintiff claims, that the defendant, by this conveyance, granted to him not only the piece of land, containing five acres, therein described, and the right to erect and continue a dam across the river above, as far as the defendant’s laud then extended, at the upper end of his adjoining meadow, and to excavate and make a raceway or artificial watercourse from said river, of the dimensions therein stated, to the piece of land so granted, over the said adjoining land of - the defendant, but also, a right to take and appropriate to his use, as much of the water of said river as could be drawn therefrom, by a .raceway of those dimensions ; and that, as he did not acquire, by the deed, a legal right to the use of so great a quantity of water as would flow through such a raceway, he is entitled to maintain this action on the covenants contained in it. The defendant denies that any right or privilege to use the water of said river was intended to be, or was in fact, granted to the plaintiff, and consequently, that any such right was secured to the plaintiff by said covenants. ' The point has not been made between the parties, whether, from the grant of a right to the plaintiff, to erect a dam at the upper end of the defendant’s adjoining land, and to excavate and make a ditch therefrom to the land granted, a license to the plaintiff would be implied, to use the water of the stream, by means of that ditch, to the extent to which the defendant, the grantor, had a right to use it. We are inclined to the opinion, from the cursory examination which we have given to this point, that such a license would be deemed to be given. But it is not important to decide it, because this action is brought, and can be sustained, only on the ground that, by the grant of the defendant, he undertook to convey and transfer to the plaintiff the absolute right to use a certain definite quantity of the water of the river, be it more or less, than the defendant, as a riparian proprietor above, would have a right to use, that is to say, as much water as could be drawn from the river, by a raceway of the particular dimensions specified in the deed; and if the grant is to be considered only as a license to take as much water as the defendant had a right to do, such right would be fully granted to, and vested in the plaintiff, by the deed, and there would obviously, therefore, be no ground for a complaint, that the defendant, by his covenants, had undertaken to assure to the plaintiff a greater right than he was entitled to. But the question here is, whether the deed purported to convey a right to draw from the river the particular and definite quantity which has been mentioned; and we are clearly of opinion that it did not.

The object, in determining the construction of this grant, is, in this, as in all other similar cases, to ascertain the intention of the parties. For this purpose, we look at the terms of the instrument, in connection with the situation of the parties, and the object they had in view. We do not think that, in this case, it is necessary to resort to any of those artificial rules of construction which yire, in cases of doubt, adopted, in order to ascertain the intentions offparties, because we think, that the meaning of the grant in question is too plain to require such aid.

The grant to the plaintiff, by this deed, is of three things. First, of the piece of land therein described; secondly, of the right or privilege of erecting and continuing a dam, at the place and to the extent therein mentioned; and, thirdly, of the right or privilege of cutting, excavating and making a raceway or water-course, of the dimensions and character therein specified, to the said piece of land adjoining it, and from the upper end of such adjoining land, where it borders on the river above, and to make all necessary embankments, walls and troughs to convey as much of the water from said river to said piece of land, as the said Griswold (the plaintiff) shall choose. As to the raceway, the deed grants to the plaintiff only the right to cut, excavate and make it, with the necessary embankments, walls and troughs, over the specified remaining land of the defendant. There is nothing, in its terms, that has the least allusion to the quantity of water which the plaintiff should be entitled to abstract from the stream, nor anything that purports to give him a right to abstract any. The conveyance of the water from the river, by the raceway, is mentioned in connection with its necessary embankments, walls and troughs ; not for the purpose of asserting a right, in the defendant, to take from the stream as much water as would flow in that raceway, or any water whatever, nor of securing to the plaintiff any such right, but only as indicating the object for which the raceway might be wanted.' The phrase, “ to make all necessary embankments, walls and troughs to convey as much of the water from said river,” &c., is tantamount to the expression, “ to make all embankments, &c., which may be necessary for the purpose of conveying as much of the water,” &c. It is, therefore, only a grant of an easement on the defendant’s adjoining land, namely, the right to make a dam and raceway upon it, for a particular purpose. Whether, after it was made, it could be used for that purpose, to the extent to which it was capable, would depend, not on the right of making or having the raceway on the defendant’s land, but on the acquisition, by the plaintiff, of another and different right, namely, that of drawing the water from the river with which such raceway was connected; a right which might or might not belong to, or be acquired from, the defendant. These rights are entirely distinct and independent of each other in their nature, and have no necessary connection, although it may indeed be necessary or. convenient to possess both, in order to make either of th'em beneficial or profitable. A right to make and have a ditch of a particular size, over the land of another person, is obviously quite distinct and different from a right to abstract the water from a stream, to the use of which that or some other person is entitled. Although, then, the grant to the plaintiff, in this instance, of a right to erect the dam, and make the raceway on the land of the defendant, might imply a right in the plaintiff to draw from the river, by means of such raceway, as much water as the defendant himself might use, we do not think that it extends any further; and we are also of opinion that, beyond this, it was the intention of the defendant, to grant, and of the plaintiff to obtain, by the deed in question, the right only of making a passage for so much of the water of the river, as should be acquired by the plaintiff, from those to whom the use of the water belonged, not exceeding the capacity of the raceway described in the deed. We are strongly confirmed in this opinion, by the circumstance, that it appears on the face of the deed, by the southerly and westerly boundaries of the piece of land conveyed to the plaintiff, that the defendant owned only to the center of the river; that the river was then running in its natural course; and that the privilege of constructing the dam was limited to the extent of the defendant’s land. These facts go strongly to show, that no water privilege, beyond that which the defendant then had, was intended to be conveyed by him.

The case of Coe v. Talcott, (5 Day’s R., 88,) on which the plaintiff places much reliance, is plainly distinguishable from the present. In that case, there was a clear intention to .convey to the grantee the right to the use of the precise quantity of one-half of the water of the stream which ran in the brook, on the adjoining land of the grantor, and, in order to enjoy it, to dig a ditch on said land, and thereby turn the one-half of said brook upon the land conveyed. The language of the deed was express to that effect, and no point could, or did, arise upon its construction. After granting the land, the grantor added, “together with a liberty of plowing and digging in the land of said deceased, and thereby turning into said Arnold?s land, one-half of a small brook, which runs across the highway which is at the east end of said land.”

The judgment of the superior court is therefore affirmed.

In this opinion the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was therefore disqualified.

"Judgment affirmed.


author: Waite, J.

text:
    Ives vs. Finch.
    The provision of the statute, which requires a bond with surety, to be given by the party appealing from the judgment of a justice of the peace, [Stat. 1849, p. 67,j was made solely for the benefit of the obligee, who may waive a strict compliance therewith-
    On the 17th of August, 1S50, judgment was rendered, by a justice of the peace, in favor of the plaintiff, in an action of assumpsit, demanding thirty dollars, damages. The defendant appealed, and, as principal, entered into a recognizance, in the sum of fifty, dollars, to prosecute his appeal to effect. On the 25th of September, of the same year, B appeared before the justice, and entered into a like recognizance, as surety for the defendant. The cause was duly entered in the docket of the court to which the appeal was taken, without objection by the' plaintiff. The attorneys of the defendant entered their appearance, as such, and the cause was continued, from term to term, until December, 1851, when it was assigned for trial, before the jury. On the day previous to the trial, the plaintiff’s counsel moved to strike the cause from the docket, on the ground that it appeared, from the copy of the record, that no bond, with surety, had been given, upon the appeal. It was held, in such case, that the plaintiff had waived a strict compliance with the statute. Held, also, that the proper mode of taking advantage of the error in the appeal, was by a plea in abatement.
    This was a motion in error, brought to the superior court, holden at New Haven, at the January term, 1852, to reverse an order of the county court, made in a cause, wherein Finch was plaintiff, and Ives the defendant.
    The action was assumpsit, demanding thirty dollars damages, and was originally brought before a justice court, hold-en on the 17th day of August, 1850, when judgment was rendered in favor of Finch, the plaintiff. From that judgment, the defendant, Ives, took an appeal to the county court, and as principal, entered into a recognizance to the adverse party, in the sum of forty dollars, to prosecute his appeal to effect. Afterward, on the 25th day of September, 1850, Lucius Birdsey, on the request of the plaintiff’s counsel, appeared before the justice, and entered into a like recognizance, as surety for the defendant.
    The cause was duly entered upon the docket of the county court, for the county of N<bw Haven, at the November term, 1850, to which the appeal was taken, and the attorneys entered their appearance, as such attorneys, upon the docket, and the cause was continued from term to term, in that court, until the December term, 1851, when it was assigned for trial, before the jury.

      On the day previous to the one assigned for the trial, the plaintiff’s counsel moved the court to strike the cause from the docket, on the ground, that it appeared from the copy of the record, that no bond, with surety, had been given, upon the appeal; and the court ordered the cause to be erased from the docket.
    The defendant, therefore, filed a bill of exceptions, and, by motion in error, brought his case before the superior court, where it was reserved for the advice of this court.

      Doolittle and Harrison, in support of the motion,
    contended, First, That a bond, without surety, neither constitutes an appeal, nor vacates a judgment. Stat., 1849, p. 67. Before the 25th of September, 1850, an action of debt upon this judgment could have been sustained, or the plaintiff could have taken out execution, and, if refused by the justice, could have moved for a mandamus. And when the court adjourned without day, its jurisdiction over this case was at an end. The rights of the plaintiff had become vested, under this judgment. It is the privilege of the defendant, to appeal, with bond and surety, and, if he would avail himself of that privilege, he must do it, before adjournment without day. Dyer v. Smith, 12 Conn. R., 385, 390, 392. Burgess v. Tweedy, 16 Conn. R., 39, 46. Wilkie v. Hall, 15 Conn. R., 32, 38.

      Secondly, The defect, being the want of a bond, required on an appeal, can not be waived, as it is an essential prerequisite to the jurisdiction of the court below. We can not waive a duty of the court: we may waive a mere privilege, such as want of notice, but not an essential pre-requisite to the jurisdiction of the court, whose powers are limited, and derived from the statute. Perkins v. Perkins, 7 Conn. R., 565. Denison v. Denison, 16 Conn. R., 38. 4 Cowen, 80, 540. 7 Cowen, 468. 9 Cowen, 227. 6 Cowen, 585. 2 Root, 60, 377. 10 Conn. R., 60. 7 Conn. R., 567. Clark v. Conn., 1 Munford, 160. It is the duty of the court, without regard to the parties, to dismiss the cause, whenever they discover, upon inspection of the record, that they have no jurisdiction. 1 Sw. Dig., 606. Crandall v. State, 10 Conn. R., 340, 371.

      Thirdly, This proceeding can not be made the subject of a motion in error, and is to be distinguished from the case of Main v. School District of Preston, 18 Conn. R., 221; for, the reason in that case, that, otherwise, the party would be remediless, is not true in this case. If the county court refuse to hear the cause, and to render any judgment, the prop-remedy is, by an application to the superior court, for a mandamus, or procedendo. Hoyt v. Brooks, 10 Conn. R., 192. This cause is improperly before the supreme court, and should be erased from its docket. 8 Conn. R., 165. The defendant’s remedy, if aggrieved, is by mandamus. 1 Sw. Dig., 563, 564.

      C. Ives, contra,
    contended, 1. The statute requiring a bond with surety, on an appeal, has been substantially complied with. The plaintiff does not claim, that he has suffered by the delay, and practically, it could make no difference with him, whether surety was given on the day of the appeal, or after the adjournment.
    2. The statute does not designate the precise day, when bond with surety shall be taken. The word, “ when,” in the statute, does not mean, immediately. The precise time is left to the discretion of the justice; and if bond, with surety, is taken, on a day subsequent to the adjournment, the justice should enter it, as of the day the appeal was allowed. Stat. 1849, pp. 49, 67.
    3. The parties in the suit can not claim a voice in it, as a matter of right. Therefore, a bond, taken in the absence of either, or both of them, after adjournment, is good, if, in the opinion of the magistrate, the surety is sufficient. In appeals from the county court,' the provision of the statute, requiring a bond from the appellant, is, in practice, disregarded,—the bond of the surety only, being taken.

      4. If the defendant made a fatal omission, as alleged, the plaintiff, by appealing and answering to the case, in the county court, by allowing it to be assigned for trial, and by filing his oyer, at the third term after the appeal, without taking any exception to the record, waived the objection he now makes. If it could have availed him, at any time, it could only do so, at the term of the county court, to which the appeal was brought. The cases cited in the court below, in which our own court has held, that parties can not waive a statute regulation, so as to “make good what the statute makes void,” are cases where the public is interested equally with the parties; and are not analogous to this, where the parties only are interested. 5 Conn. R., 402. 7 Conn. R., 565.
    5. The want of a proper bond, with surety, on appeal, is matter of abatement only, and the plaintiff can not be entitled to more favor, because he has substituted a motion for a plea. Pleas in abatement must be filed, on or before the second opening of the first term of the court, and a motion in abatement may be considered as an oral plea, and should be so treated. Motions to quash have never been favored by the courts. Clapp v. Gibson, 2 Pike, 109.
   Waite, J.

The principle, involved in the present case is, whether the omission of the defendant, to procure a surety upon his bond, rendered the appeal void, or only voidable, at the election of the plaintiff. And we are of opinion, that the latter effect only was produced. Had the demand been less than seven dollars, or the appeal taken to the superior court, the appeal would have been void. In either case, the court would not have had jurisdiction, and would have been perfectly justified, in ordering the cause stricken from the docket.

But the cause was appealable, and the appeal was taken to the right court, and, had the proceedings been regular, that court was bound to take cognizance of it. The only objection, urged against those proceedings, is, that the defendant neglected to procure a surety, to unite with him, in the bond given on the appeal.

The provision of the statute, requiring a bond, with surety, was made solely for the benefit of the obligee; and it was competent for him, if he pleased, to waive a strict compliance with the statute.

Suppose the plaintiff1 had been entirely satisfied, that the defendant’s bond was abundantly sufficient, and had expressly waived the requirement of any farther security; could he, afterward, treat the appeal as a nullity, and procure the cause to be erased from the docket ? It is a frequent practice, for parties in suits, to waive a strict compliance with those requirements of the law made solely for their benefit.

Under a former statute, declaring that a contract, made upon an usurious consideration, should be utterly void, it was holden, that the statute was made, for the benefit of the party liable upon the contract^ and that he might, at his option, avoid the security, or waive the benefit of the law. Wales v. Webb, 5 Conn. R., 154.

But, where an appeal is taken, in a cause not appealable, or to a court not having jurisdiction, it is not in the power of the parties, to confer jurisdiction, by waiving all objections ; and the court, under such circumstances, will dismiss the cause from the docket, as soon as the want of jurisdiction is discovered.

The law prescribes the mode, in which service of civil process shall be made, and where the requirements of the law have not been complied with, the party, on whom the defective service was made, may avail himself of the omission. But then, he must do it in proper time, and in a proper manner; and if he omit to do so, and appear in the cause, and suffer it to proceed, without objection, on his part, he will be considered, as having waived his objection.

In the present case, the proper mode of taking advantage of the error in the appeal, was by a plea in abatement, which should have been filed, within the time allowed for filing such pleas. But, instead of doing this, the plaintiff, without any objection on his part, suffered the appeal to be taken, the bond to be given, the cause to be entered on the docket of the county court, his attorney’s appearance to be entered, and the cause to be continued for several terms, in that court, and then, upon the eve of a trial, moved to have the cause erased from the docket.

In our opinion, the objection to the proceedings on the appeal, came entirely too late, and the county court erred, in ordering the cause to be stricken from the docket; and we so advise the superior court.

In this opinion, the other judges concurred.

Judgment reversed.